Common use of Board Nomination Rights Clause in Contracts

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) as of the date of determination, the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) to the board of directors of the Company (the “Board”). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the Closing, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member of the Board, the Investor Designee shall be entitled to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “Ownership Threshold” means that the Investor owns, in the aggregate, at least $15,000,000 of Preferred Stock, on an as-converted to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that the Ownership Threshold shall automatically be deemed to be satisfied at any time the Investor holds at least 15,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determination, the volume-weighted average price per share of Common Stock on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination date.

Board Nomination Rights. (a) The Company shall take all actions At any time prior to ensure the Expiration Time, subject to the terms and conditions of this Agreement and provided that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) as Bandera together with its Affiliates Beneficially Own 21% or greater of the date of determinationOutstanding Equity, Bandera shall have the Company shall use its best efforts right (but not the obligation) to appoint designate one individual designated by person to be nominated for election to the Investor Board (an a “Investor DesigneeNominee”) by giving written notice to the board Chairman of directors the Board or the Secretary of the Company (prior to the “Board”)Expiration Time. The Investor’s initial Investor Designee Nominee shall be Xxxx Xxxxx selected by Bandera in reasonable consultation with (but without the “Initial Designee”need for the approval of) the Board. (b) Provided Bandera exercises its right under Section 1(a). Following the Closing, the Company Company, subject to its rights under Section 2, shall at all times prior to the Expiration Time use its best efforts to cause the appointment Board to include the Nominee in the slate of nominees recommended for election as a director at any annual or special meeting of the shareholders held prior to the Board Expiration Time (or, if permitted, by any action by written consent of the Initial Designee and thereafter, for so long as shareholders taken prior to the Investor’s Board nomination right under this Section 1 continues, Expiration Time) at or by which directors of the Company will use its best efforts to cause the Investor Designee are to be elected. (c) If, following the election of the Nominee to the Board, a Board vacancy occurs prior to the Expiration Time solely because of the death, disability, disqualification, resignation or removal of the Nominee, Bandera shall be entitled to designate such person’s successor in accordance with Section 2(b). (d) If prior to the Expiration Time the Nominee is not nominated or elected to the Board (including recommending that the Company’s stockholders vote in favor of the election because of such designeeNominee’s death, soliciting proxies and contesting disability, disqualification, withdrawal as a nominee or such Nominee is for any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines reason unavailable or unable to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to serve on the Board, subject Bandera shall be entitled to promptly designate another Nominee in accordance with the same conditions applicable provisions of Section 1 and limitations as set forth in the foregoing sentence. During director position for which such time as the Investor Designee is a member of the Board, the Investor Designee Nominee was nominated shall not be filled pending such designation. (e) A Nominee shall be entitled to the same level compensation paid and expense reimbursement payable to other non-employee Directors. (f) For the avoidance of compensationdoubt, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under the provisions of this Agreement shall not limit any indemnification agreement) rights Bandera may have as the other independent members a shareholder of the Board. For purposes hereof, “Ownership Threshold” means that the Investor owns, in the aggregate, at least $15,000,000 of Preferred Stock, on an as-converted Company pursuant to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that the Ownership Threshold shall automatically be deemed to be satisfied at any time the Investor holds at least 15,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determinationOhio law, the volume-weighted average price per share Articles of Common Stock on Incorporation or the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination dateCode of Regulations.

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) a. Effective as of the date of determinationhereof, and solely to the extent the below named persons wish to stand for election or serve as directors, the Company shall use its best efforts to appoint one individual designated by agrees that the Investor Corporate Governance and Nominating Committee (an or a duly constituted subcommittee thereof) (the “Investor DesigneeNominating Committee”) to of the board Board of directors Directors of the Company (the “Board”). The Investor’s initial Investor Designee ) shall recommend for election and the Board agrees to nominate for election up to two (2) individuals in the aggregate, pursuant to Sections 1(b) and 1(c) below, to be Xxxx Xxxxx confidentially designated by BVF for nomination by the Board (the “Initial DesigneeDesignation Right”). Following ) to serve as directors of the ClosingBoard in accordance with this Section 1, subject to the Company consent of the Nominating Committee and the Board with respect to each such designee, which consent is not to be unreasonably withheld, and which consent shall use its best efforts be deemed automatically given with respect to cause a designee if that designee is either Xxxx Xxxxxxx or Xxxxxxx Xxxxx unless such individual is or subsequently becomes a “bad actor” within the appointment meaning of Rule 506 of Regulation D under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (it being understood that if the Nominating Committee and the Board does not approve a given BVF designee, then BVF shall be entitled to confidentially designate one or more additional candidates until such time as such designees have actually been appointed to the Board pursuant to Sections 1(b) and 1(c)). Each individual designated confidentially by BVF to serve as a director of the Initial Board pursuant to the Designation Right and who is appointed and/or nominated to the Board is referred to herein as a “Designee”. For the avoidance of doubt, other than the persons appointed to the Board pursuant to the Designation Right and pursuant to Section 1(d), the nomination of any other individual for election to the Board remains at the sole discretion of the Board and the Nominating Committee. If a Designee and thereafterresigns or is unable to serve for any reason, for so long as the Investor’s Board nomination right under Stockholders may select a replacement Designee who shall be nominated pursuant to the terms of this Section 1 continues1. b. One Designee (the “Class I Designee”) shall initially be recommended by the Nominating Committee and appointed by the Board concurrent with the execution of this Letter Agreement to fill a vacancy on the Board and serve as a Class I director (as described in Article VI of the Company’s current Amended and Restated Certificate of Incorporation (the “Current Charter”), whose term will expire at the Company will use its best efforts to cause 2017 annual meeting of the Investor Designee Company’s stockholders. At each subsequent election at which the Class I directors are to be elected to the Board, the Class I Designee (or his or her successor designated pursuant to Section 1(a) or Section 1(e)) shall be nominated by the Board (including recommending for election to the Board as a Class I director. In the event that the Company’s stockholders do not elect the Class I Designee to the Board at any meeting of stockholders at which such Class I Designee stands for election, then the Designation Right shall automatically terminate with respect to such Class I Designee. c. Solely in the event that Xx. Xxxx is unwilling or unable to serve on the Board pursuant to Section 1(d) below, the Stockholders shall be entitled to designate one Designee (the “Class III Designee”) who shall initially be recommended by the Nominating Committee and appointed by the Board and serve as a Class III director (as described in Article VI of the Current Charter) whose term will expire at the 2016 annual meeting of the Company’s stockholders (the “2016 Annual Meeting”). At the 2016 Annual Meeting and at each subsequent election at which the Class III directors are to be elected to the Board, the Class III Designee (or his or her successor designated pursuant to Section 1(a) or Section 1(e)) shall be nominated by the Board for election to the Board as a Class III director. In the event that the Company’s stockholders do not elect the Class III Designee to the Board at any meeting of stockholders at which such Class III Designee stands for election, then, the Designation Right shall automatically terminate with respect to the Class III Designee. d. Concurrent with the execution of this Agreement, the Board shall appoint Xx. Xxxx Xxxx (the “New Director”) to serve as a Class III director to the Board and at the 2016 Annual Meeting Xx. Xxxx shall be nominated by the Board for election to the Board as a Class III director, subject to compliance with the Company’s customary requirements for all directors. At the 2016 Annual Meeting, the Company shall: (i) include the New Director in its slate of nominees for election to the Board, (ii) recommend that stockholders vote in favor of the election of such designee, soliciting proxies New Director and contesting any proxy contest and otherwise supporting (iii) support such designee New Director for election to the Board in a manner no less rigorous and favorable than the manner in which how the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply Board-nominated nominees for election to the Replacement Designee. If Board. e. As a condition to the Investor Designee ceases to be a director appointment of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Class I Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual Class III Designee to the Board, subject and any subsequent nomination of each Designee for election as a director at an applicable annual or special meeting or in respect of any solicitation of written consents of stockholders at which directors are to be elected to serve on the Board in the class in which such Designee serves, each Designee will provide such information the Company reasonably requires from all directors and nominees to the same conditions Board, including information required to be disclosed in a proxy statement or other filing under applicable law, stock exchange rules or listing standards, information in connection with assessing eligibility, independence and limitations as set forth in other criteria applicable to directors or satisfying compliance and legal obligations, and will consent to appropriate background checks. If, following the foregoing sentence. During such time as completion of the Investor Company’s review process, the Board learns that a Designee is a “bad actor” within the meaning of Rule 506 of Regulation D under the Exchange Act or has committed, been indicted or charged with, or made a plea of nolo contendre to a felony or a misdemeanor involving moral turpitude, deceit, dishonesty or fraud, then, consistent with its treatment of all other directors on the Board, the Board may request that the Designee submit his or her resignation and, in such case, BVF will cause such Designee to resign from the Board and may select a replacement designee reasonably acceptable to the Board. f. Each Stockholder agrees, and any Designee that serves as a director will agree, to be bound by the Company’s xxxxxxx xxxxxxx policy and other applicable corporate governance policies governing the obligations of directors and executive officers of the Company. At all times while serving as a member of the Board, the Investor each Designee shall be entitled comply with all policies, procedures, processes, codes, rules, standards and legally permissible guidelines applicable to all of the Company’s directors. In addition, as a condition to being appointed to the same level of compensationBoard, directors’ each Designee will execute an agreement whereby the Designee will automatically (and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreementwithout the need for further action) resign from the Board as set forth in Section 1(e) or Section 5(a). g. Except as otherwise set forth herein, until the other independent members of the Board. For purposes hereof, “Ownership Threshold” means that the Investor owns, in the aggregate, at least $15,000,000 of Preferred Stock, on an as-converted to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP Expiration Date (as defined below), the Company shall: (i) include each Designee in its slate of nominees for election to the Board at each applicable annual or special meeting or in respect of any solicitation of written consents of stockholders at which directors are to be elected to serve on the Board in the class in which the Designee serve, (ii) recommend that stockholders vote in favor of the election of each such Designee and (iii) support each such Designee for election to the Board in a manner no less favorable than how the Company supports other Board-nominated nominees for election to the Board. h. As a result of the actions contemplated by this Letter Agreement, the Board will consist of seven directors, of which two directors will be Class I Directors, two directors will be Class II Directors and three directors will be Class III Directors. i. The Company acknowledges receipt of the identity of the Class I Designee, the Class III Designee and the New Director and any information required from such persons and the Nominating Committee has approved and recommended to the Board the appointment of such individuals and the Board has approved of such appointment. j. If the continuation of the Designation Right would cause any violation of the applicable listing rules of NASDAQ, in which case the Designation Right shall be amended by the parties solely as necessary to ensure compliance with such listing rules and the parties shall work in good faith to document and approve such necessary modification(s); provided, however, that the Ownership Threshold Company shall automatically be deemed first use its reasonable best efforts to be satisfied at make any time necessary adjustments with respect to the Investor holds at least 15,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determination, the volume-weighted average price per share of Common Stock remaining directors on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days Board to comply with such listing rules of NASDAQ prior to and including such determination datemodifying the Designation Right or any terms of this Letter Agreement.

Board Nomination Rights. (a) For so long as the TOBI Purchaser and its Permitted Transferees continue to beneficially own at least 25% of the Series A Convertible Preferred Stock (and any Underlying Shares issued as a result of the conversion thereof), the TOBI Purchasers shall be entitled to nominate one director to the Board of Directors (the “Preferred Director”), in addition to the existing rights of the TOBI Purchaser under Section 2.1 of the Stockholders Agreement. The Company Board of Directors shall take all actions action necessary or reasonably advisable such that the initial Preferred Director designated by the TOBI Purchaser following the date hereof shall be promptly appointed to ensure the Board of Directors. The TOBI Purchaser shall nominate the Preferred Director by delivering to the Company its written statement at least 60 days prior to the one-year anniversary of the preceding annual meeting nominating its director and setting forth such directors’ business address, telephone number, facsimile number and e-mail address; provided that from and after if the Closing and TOBI Purchaser shall fail to deliver such written notice, the TOBI Purchaser, shall be deemed to have nominated the Preferred Director previously nominated (or designated pursuant to this Section 5.10) by the TOBI Purchaser who is/are currently serving on the Board of Directors. (b) Notwithstanding the foregoing or anything to the contrary set forth in the Stockholders Agreement, if at any time following the Closing, the Aggregate Snow Xxxxxx Ownership (as defined in the Stockholders Agreement) ceases to be at least 7.5% of the outstanding Common Stock of the Company immediately following the consummation of the IPO (as defined in the Stockholders Agreement), the Snow Xxxxxx Parties (as defined in the Stockholders Agreement) will retain the right to nominate one director to serve on the Board of Directors for so long as the Investor meets the Ownership Threshold (as defined below) as Snow Xxxxxx Purchasers and their Permitted Transferees continue to beneficially own at least 25% of the date of determination, the Company shall use its best efforts to appoint one individual designated by the Investor Series A Convertible Preferred Stock (an “Investor Designee”) to the board of directors and any Underlying Shares issued as a result of the Company (the “Board”conversion thereof). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the Closing, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member of the Board, the Investor Designee shall be entitled to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “Ownership Threshold” means that the Investor owns, in the aggregate, at least $15,000,000 of Preferred Stock, on an as-converted to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that the Ownership Threshold shall automatically be deemed to be satisfied at any time the Investor holds at least 15,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determination, the volume-weighted average price per share of Common Stock on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination date.

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) as of Following the date of determination, the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) to the board of directors of the Company (the “Board”). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the Closing, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by VMD Director pursuant to Section 2 until the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election End Date, at every subsequent meeting of such an individual to the Board, or a committee thereof, at which all of the directors of WBA are appointed by the Board or are nominated to stand for election by stockholders of WBA, the Nominating Person(s) shall have the right to nominate for election to the Board as a VMD Director, in each case in accordance with WBA’s Organizational Documents and applicable law and stock exchange rules and subject to the same conditions approval of the Nominating and limitations Governance Committee of the Board after exercising its good faith customary due diligence review and fiduciary duties, one (1) representative (such Person, a “Nominee”). Any such Nominee must be identified by the Nominating Person(s) in writing to WBA no later than a time prior to such meeting to be reasonably specified by WBA to VMD in accordance with the Organizational Documents, or the Nominating Person(s) shall not have the right to identify a Nominee with respect to such meeting. Notwithstanding anything to the contrary set forth herein, the Nominee must be reasonably acceptable to WBA (such acceptance not to be unreasonably withheld, conditioned or delayed) and qualify as independent for purposes of service as a director on the Board, including under the applicable rules and standards set forth in the foregoing sentenceCorporate Governance Guidelines of WBA and of the Securities Exchange Commission and the Nasdaq Stock Market, as determined in good faith by the Board and its Nominating and Governance Committee at all times when nominated to stand for election by stockholders of WBA and when serving as a director on the Board. During In the event that the Nominating and Governance Committee of the Board or WBA do not approve a Nominee under this Section 3(a), WBA shall deliver prompt written notice to VMD and (i) the Nominating Person(s) shall be entitled to nominate another Nominee in accordance with and subject to the terms and conditions of this Section 3(a), (ii) the director position for which such Nominee was nominated shall not be filled pending such subsequent nomination by the Nominating Person(s) and (iii) upon such nomination by the Nominating Person(s), the Board shall comply with its obligations with respect to such successor Nominee (as if such successor Nominee was the originally designated Nominee) in accordance with and subject to the terms and conditions of this Agreement; provided that any such successor Nominee must be identified by the Nominating Person(s) in writing to WBA no later than the time as prior to the Investor Designee is a member applicable meeting of the Board, or a committee thereof, previously reasonably specified by WBA to VMD in accordance with the Investor Designee Organizational Documents, or the Nominating Person(s) shall not have the right to identify a Nominee with respect to such meeting. (b) In the event that a Nominee shall cease to serve as the VMD Director and a director of WBA prior to the end of a term for which he or she has been duly elected because of such Nominee’s removal, death, disability, disqualification or resignation from the Board, (i) the Nominating Person(s) shall be entitled to promptly designate such person’s successor in accordance with and subject to the same level terms and conditions of compensationthis Agreement, directors’ including the requirements with respect to a Nominee set forth in Section 3(a) and officers’ indemnity insurance coverage otherwise, in writing to WBA, (ii) the director position for which the original Nominee was nominated shall not be filled pending such designation by the Nominating Person(s) and indemnity (iii) upon such designation by the Nominating Person(s), the Board shall fill the vacancy with such successor Nominee within a reasonable time after such designation as allows WBA, the Board and exculpation protection (including under any indemnification agreement) as the other independent members Nominating and Governance Committee of the Board. For purposes hereofBoard to comply with their fiduciary duties and good faith customary due diligence review and director appointment process, “Ownership Threshold” means that to the Investor ownsextent such actions are not prohibited by applicable law or stock exchange rules, in accordance with and subject to the aggregateterms and conditions of this Agreement (it being understood that any such Nominee shall serve the remainder of the term of the VMD Director whom such Nominee replaces). (c) If a Nominee withdraws as a nominee prior to a stockholder meeting at which all of the directors of WBA are to be elected by the stockholders of WBA (an “Election Meeting”) or is otherwise unable to stand for election for any other reason (whether by reason of such person’s resignation, at least $15,000,000 removal, death, disability, disqualification or otherwise), the Nominating Person(s) shall be entitled to designate promptly a replacement Nominee in writing to WBA no later than the time prior to such Election Meeting previously reasonably specified by WBA with respect thereto, in accordance with the terms of Preferred Stockthis Agreement, on including the requirements with respect to a Nominee set forth in Section 3(a) and otherwise. (d) Prior to any nomination or designation of a Nominee by the Nominating Person(s) pursuant to this Section 3, VMD and the Nominating Person(s) shall consult with and consider the opinions of WBA with respect thereto in good faith. (e) In the event the Nominating Person(s) fail to timely nominate any Nominee they are entitled to nominate pursuant to this Agreement prior to the deadline specified by WBA in accordance with Section 3(a), the Nominating and Governance Committee of the Board shall be entitled to nominate an as-converted individual in lieu of such Nominee for inclusion in the Board’s Slate and the applicable Director Election Proxy Statement with respect to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that election for which such failure occurred and VMD and the Ownership Threshold Nominating Person(s) shall automatically be deemed to be satisfied have waived their rights hereunder with respect to such election. (f) For the avoidance of doubt, notwithstanding anything to the contrary set forth herein, no more than one (1) VMD Director or other person designated or nominated by the Nominating Person(s) shall serve as a director of WBA at any time the Investor holds at least 15,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determination, the volume-weighted average price per share of Common Stock on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination datetime.

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing Date and for so long as the Investor meets the Ownership Threshold (as defined below) as of the date of determination), the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) shall be appointed to the board of directors of the Company (the “Board”). The Investor’s initial ) if the Board consists of five or fewer members and two individuals designated by the Investor Designee shall be Xxxx Xxxxx appointed to the Board if the Board consists of more than five members (the each an “Initial Investor Designee”). Following the Closing, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member of the Board, the Investor Designee shall be entitled to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “Ownership Threshold” means that the Investor owns, in the aggregate, at least $15,000,000 10,000,000 of Preferred Stock, on an as-converted to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that the Ownership Threshold shall automatically be deemed to be satisfied at any time the Investor Buyer holds at least 15,000 10,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determination, the volume-weighted average price per share of Common Stock on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination date. The Investor’s initial Investor Designee shall be Pratap Muharji (the “Initial Designee”). On or prior to the Closing Date, the Company shall take all actions necessary to cause the appointment to the Board of the Initial Designee effective as of the Closing Date, and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to ensure that each Investor Designee is elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designees, soliciting proxies and contesting any proxy contest and otherwise supporting such designees for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as an Investor Designee, such obligation shall instead apply to such Replacement Designee. If an Investor Designee ceases to be a director of the Company, the Company shall take all actions necessary to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. Each Investor Designee shall be entitled to the level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other members of the Board in their capacities as directors. Each Investor Designee shall be entitled to the same level of directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other members of the Board. As promptly as practicable, and for so long as an Investor Designee serves on the Company’s board of directors, the Company shall maintain in place directors’ and officers’ indemnity insurance coverage in an amount and on terms deemed reasonably acceptable to the Investor Designees, but no less than $2 million of coverage per director.

Board Nomination Rights. (a) The Company Concurrently with or prior to the Closing, (i) the Company's Board of Directors shall take all actions increase the number of members constituting the Company's Board of Directors by one (with the vacancy created thereby being in Class II, whose term expires at the Company's annual meeting to ensure that from be held in 2000 (the "2000 Meeting")) and after (ii) the Closing and for so long as Purchaser shall be entitled to select one individual (the Investor meets "Purchaser Nominee") to fill the Ownership Threshold (as defined below) as vacancy in Class II of the date Board of determination, the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) to the board of directors Directors of the Company (the “Board”)created by such increase. The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following Within 30 days following the Closing, the Company's Board of Directors shall appoint the Purchaser Nominee to fill the vacancy in Class II referred to in the immediately preceding sentence. At all stockholders meetings at which Class II directors are to be elected, the Purchaser Nominee shall be included in the slate of nominees recommended by the Company and the Board to the stockholders of the Company for election as directors, and the Company shall use its best efforts to cause the appointment to the Board election of the Initial Designee Purchaser Nominee at each such election. The Purchaser will confer with the Company concerning the Purchaser's selection of the Purchaser Nominee prior to making such selection. (b) The Purchaser's right to elect a Purchaser Nominee and thereafter, for the Company's obligation set forth in Section 6(a) above shall continue so long as the Investor’s Purchaser's Interest is greater than 5%. Subject to the preceding sentence, any change in the structure or classification of the Board nomination shall not affect the Purchaser's right under this Section 1 continuesto have the Purchaser Nominee nominated for election to the Board. Upon the termination, removal or resignation of a Purchaser Nominee for any reason, the Company will use its best efforts Purchaser shall have the right to cause the Investor Designee appoint a new Purchaser Nominee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of fill such designeevacancy, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment election of such new Purchaser Nominee to the Board through action of the Board of Directors or stockholders. Further, if a Replacement Designee nominated by the Investor to fill the vacancy and thereafter Purchaser Nominee shall not be elected as a Class II director at any election, then the Company will shall use its best efforts to cause ensure that the election Purchaser Nominee obtains a seat on the Board as soon as reasonably possible, whether by appointment of such the Purchaser Nominee to fill an individual to existing or newly created vacancy on the Board, subject to by nomination at the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member next election of directors of the Board, the Investor Designee shall be entitled to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “Ownership Threshold” means that the Investor owns, in the aggregate, at least $15,000,000 of Preferred Stock, on an as-converted to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that the Ownership Threshold shall automatically be deemed to be satisfied at any time the Investor holds at least 15,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determination, the volume-weighted average price per share of Common Stock on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination dateCompany or otherwise.

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing Date and for so long as the Investor meets the Ownership Threshold (as defined below) as of the date of determination), the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) shall be appointed to the board of directors of the Company (the “Board”). The Investor’s initial ) if the Board consists of five or fewer members and two individuals designated by the Investor Designee shall be Xxxx Xxxxx appointed to the Board if the Board consists of more than five members (the each an “Initial Investor Designee”). Following the Closing, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member of the Board, the Investor Designee shall be entitled to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “Ownership Threshold” means that the Investor owns, in the aggregate, at least $15,000,000 10,000,000 of Preferred Stock, on an as-converted to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that the Ownership Threshold shall automatically be deemed to be satisfied at any time the Investor Buyer holds at least 15,000 10,000 (as such amount may be adjusted for stock splits, subdivisions, combinations and the like) shares of Preferred Common Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determination, the volume-weighted average price per share of Common Stock on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination date. The Investor’s initial Investor Designee shall be Pratap Muharji (the “Initial Designee”). On or prior to the Closing Date, the Company shall take all actions necessary to cause the appointment to the Board of the Initial Designee effective as of the Closing Date, and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to ensure that each Investor Designee is elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designees, soliciting proxies and contesting any proxy contest and otherwise supporting such designees for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as an Investor Designee, such obligation shall instead apply to such Replacement Designee. If an Investor Designee ceases to be a director of the Company, the Company shall take all actions necessary to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. Each Investor Designee shall be entitled to the level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other members of the Board in their capacities as directors. Each Investor Designee shall be entitled to the same level of directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other members of the Board. As promptly as practicable, and for so long as an Investor Designee serves on the Company’s board of directors, the Company shall maintain in place directors’ and officers’ indemnity insurance coverage in an amount and on terms deemed reasonably acceptable to the Investor Designees, but no less than $2 million of coverage per director.

Board Nomination Rights. (a) The Company shall take all actions At any time prior to ensure the Expiration Time, subject to the terms and conditions of this Agreement and provided that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) as Stockholder together with its Affiliates Beneficially Own 10.0% or greater of the date Outstanding Equity, the Stockholder shall have the right (but not the obligation) to designate one person to be nominated for election to the Board (a “Nominee”) by giving written notice to the Chairman of determinationthe Board or the Secretary of the Company prior to the Expiration Time. As a condition of exercising its right under Section 2 of this Agreement, the Stockholder hereby agrees that effective upon the election of such Nominee to the Board, the Stockholder’s rights under Section 1 of this Agreement shall automatically expire and no person may continue to act in the capacity as Board Observer. The Nominee shall be selected by the Stockholder in reasonable consultation with (but without the need for the approval of) the Company’s Nominating and Corporate Governance Committee of its Board of Directors (the “Nominating Committee”). (b) Provided the Stockholder exercises its right under Section 2(a) prior to the Expiration Time, the Company shall use subject to its best efforts to appoint one individual designated by rights under Section 3: (i) promptly increase the Investor size of the Board from five (an “Investor Designee”5) to the board of directors six (6) members; (ii) appoint such Nominee as a member of the Company Board; and (iii) at all times during the “Board”). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the ClosingDesignation Period, the Company include, and shall use its best efforts to cause the appointment Board, whether acting through the Nominating and Corporate Governance Committee of the Board or otherwise, to include the Nominee in the slate of nominees recommended to the Board Stockholders for election as a director at any annual or special meeting of the Initial Designee and thereafterStockholders held during the Designation Period (or, for so long as if permitted, by any action by written consent of the Investor’s Stockholders taken during the Designation Period) at or by which directors of the Company are to be elected. (c) If a Board nomination right under this Section 1 continuesvacancy occurs during the Designation Period solely because of the death, disability, disqualification, resignation or removal of the Nominee, the Company will use its best efforts Stockholder shall be entitled to cause designate such person’s successor in accordance with Section 3(b). (d) If during the Investor Designee to be Designation Period the Nominee is not nominated or elected to the Board (including recommending that the Company’s stockholders vote in favor of the election because of such designeeNominee’s death, soliciting proxies and contesting disability, disqualification, withdrawal as a nominee or such Nominee is for any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines reason unavailable or unable to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member of serve on the Board, the Investor Designee Stockholder shall be entitled to promptly designate another Nominee in accordance with the applicable provisions of Section 2 and the director position for which such Nominee was nominated shall not be filled pending such designation. (e) A Nominee shall be entitled to the same level of compensation, directors’ compensation paid and officers’ indemnity insurance coverage and indemnity and exculpation protection expense reimbursement payable to other non-employee Directors. (including under any indemnification agreementf) as If in the other independent members reasonable judgment of the BoardCompany, the election or appointment of the Nominee would cause the Company to not comply with the relevant listing rules of the Nasdaq Stock Market (the “Listing Rules”), including the requirement that the Company’s Board be comprised of a majority of Independent Directors, then the Company may defer the appointment and/or election of such Nominee until it is able to take commercially reasonable measures to ensure that such appointment or election would not cause the Company to violate the Listing Rules. For purposes hereofthe purpose of clarity, “Ownership Threshold” means it is agreed that the Investor owns, such measures may include a further increase in the aggregate, at least $15,000,000 size of Preferred Stock, on an as-converted to Common Stock basis, as of any date of determination, based on the 30-Day Trailing VWAP (as defined below); provided, however, that the Ownership Threshold shall automatically be deemed to be satisfied at any time the Investor holds at least 15,000 (as such amount may be adjusted for stock splits, subdivisions, combinations Board and the likeappointment and/or election of an additional individual to serve as an Independent Director, which individual shall be selected in the sole discretion of the Company. (g) shares For the avoidance of Preferred Stock. For purposes hereof, “30-Day Trailing VWAP” means, as of any date of determinationdoubt, the volumeprovisions of this Agreement shall not limit any rights the Stockholder may have as a stockholder of the Company pursuant to Delaware law, the Certificate of Incorporation or the By-weighted average price per share of Common Stock on the exchange on which the Common Stock is then traded during the regular trading session (and excluding pre-market and after-hours trading) over the thirty (30) consecutive trading days prior to and including such determination dateLaws.