Common use of Board of Directors Composition Clause in Contracts

Board of Directors Composition. The Shareholders shall vote ------------------------------ or act with respect to the Shares so as always to elect the following as directors of the Company (collectively, the "Designees") (1) two (2) designees of Xxxxxx Xxxxxxx Venture Capital Fund II, L.P., Xxxxxx Xxxxxxx Venture Capital Fund II, C.V., and Xxxxxx Xxxxxxx Venture Investors, L.P. (collectively, "MSVCF") (the "MSVCF Designees"), which designees shall initially be Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx. Any vacancy occurring because of the death, resignation or removal of the MSVCF Designees shall be filled according to this paragraph 1 (a)(1). (2) one (1) designee of Alta (the "Alta Designee"), which designee shall initially be Xxxxxxx Xxxxxxx. Any vacancy occurring because of the death, resignation or removal of the Alta Designee shall be filled according to this paragraph l(a)(2). (3) one (1) designee of the holders of a majority of the outstanding shares of Series A and Series C Preferred Stock of the Company (the "Series A and C Designee"), which designee shall initially be Xxxxx Xxxx. Any vacancy occurring because of the death, resignation or removal of the Series A and C Designee shall be filled according to this paragraph l (a)(3). (4) one (1) designee of the holders of a majority of the outstanding shares of Series B Preferred Stock for which shares of Common Stock of the Company were exchanged (the "Series B Designee"), which designee shall initially be Xxxxxxx Xxxxx. Any vacancy occurring because of the death, resignation or removal of the Series B Designee shall be filled according to this paragraph l(a)(4). (5) one (1) designee who is the Chief Executive Officer of the Company (the "CEO Designee"), which designee shall initially be Xxxxxxx X.

Board of Directors Composition. (a) The Shareholders Company shall vote ------------------------------ or act with respect take all necessary and desirable actions such that (i) the size of the Board shall be set at eleven (11) members, each of whom shall have one Vote, provided that such number and Vote are subject to the Shares so as always to elect Section 1.1(b)(i) and Section 1.1(b)(ii), and (ii) the following as directors Persons shall form the composition of the Company Board: (collectively, A) [ ]1 shall be appointed as Class A Directors with terms ending at the "Designees")Company’s 2021 Annual Meeting; (B) [ ] shall be appointed as Class B Directors with terms ending at the Company’s 2022 Annual Meeting; and (C) [ ] shall be appointed as Class C Directors with terms ending at the Company’s 2023 Annual Meeting. (1b) The following Parties shall have the right to nominate the following Directors (each, a “Nominee”): (i) For so long as Platinum (together with its Affiliates) meets the Platinum Director Nomination Threshold, Platinum shall have the option and right (but not the obligation) to designate, in the aggregate (and less the number of Platinum Directors who are not up for election) (y) four (4) Directors, each of whom shall be nominated by the Company and have two (2) Votes; plus (z) three (3) Directors who shall be nominated by the Company and the minimum number of whom shall qualify as “independent” solely to the extent necessary to comply with the listing standards of the Approved Stock Exchange. For so long as Platinum (together with its Affiliates) meets the Platinum Ownership Threshold but not the Platinum Director Nomination Threshold, Platinum shall have the option and right (but not the obligation) to designate any number of Directors described in the immediately preceding sentence, having one (1) or two (2) Votes each, so long as the total number of Votes of all such designees does not exceed the difference of Xxxxxx Xxxxxxx Venture Capital Fund IIthe total number of Votes constituting a majority of all Votes of all Directors minus one (1). For so long as Platinum does not meet the Platinum Ownership Threshold but (together with its Affiliates) Beneficially Owns a number of shares of Common Stock (i) equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis), L.P., Xxxxxx Xxxxxxx Venture Capital Fund II, C.V.Platinum shall have the option and right (but not the obligation) to designate one (1) Director (less the number of Platinum Directors who are not up for election) who shall be nominated by the Company, and (ii)(A) equal to or greater than 15% of the total number of shares of Common Stock issued and outstanding and (B) greater than the number of shares of Common Stock owned by any other Person or group of Affiliated Persons (in each of cases (A) and (B) of this sentence, on a Non-Fully Diluted Basis), Platinum shall have the right to designate the Chairperson from among the Directors. 1 Note to draft: Names to be inserted before signing of this Agreement. (ii) For so long as Platinum (together with its Affiliates) meets the Platinum Ownership Threshold, in addition to the Directors it designated and the Company nominated pursuant to the first sentence of Section 1.1(b)(i), Platinum shall have the right to designate up to two (2) additional Directors, each of whom shall be nominated by the Company. If Platinum designates one (1) or two (2) additional Directors pursuant to the provisions of this Section 1.1(b)(ii), (i) each Director designated and nominated pursuant to this Section 1.1(b)(ii) and Section 1.1(b)(i)(y) shall have a number of Votes that is equal to a fraction the denominator of which is the actual number of Directors serving on the Board at the time such Vote is cast that were nominated pursuant to this Section 1.1(b)(ii) and Section 1.1(b)(i)(y) and the numerator of which is eight (8) and (ii) the Company shall take all necessary and desirable actions such that the size of the Board shall be expanded solely to accommodate the Directors designated and nominated pursuant to this Section 1.1(b)(ii) and to appoint such Director to a directorship class of Platinum’s choice. (iii) Notwithstanding anything to the contrary contained in this Agreement, if and so long as Platinum (together with its Affiliates) meets the Platinum Director Nomination Threshold and subject to, in addition to and without limiting any and all nomination rights of Platinum and appearance, voting and consent commitments contained in this Agreement, including without limitation as set forth in Section 1.1(d), nothing in this Agreement or the Bylaws shall be deemed to limit (A) the right of Platinum to nominate additional Directors for election to the Board through any and all means not in violation of the Bylaws and to solicit stockholders outside of the Company’s proxy statement applicable to such election, nor (B) the right or ability of the Company to include such additional nominees as the Company’s nominees in its proxy statement applicable to such election and otherwise solicit stockholders to vote in favor of such additional nominees of Platinum, including taking all actions in support thereof; provided however that Platinum shall not nominate any such additional Director pursuant to clause (A) above where such nomination or Platinum’s solicitation in connection therewith would be intended or solicited to fill any position on the Board that is reserved for a nomination pursuant to Section 1.1(b)(iv) through (vi) hereof. (iv) For so long as Blackstone (together with its Affiliates) Beneficially Owns a number of shares of Common Stock equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis), Blackstone shall have the right to nominate one (1) Director (if the Blackstone Director is up for election). (v) For so long as ECP (together with their respective Affiliates) Beneficially Own, in the aggregate, a number of shares of Common Stock equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis, ECP shall have the right to nominate one (1) Director (if the ECP Director is up for election). (vi) For so long as Capitol (together with its Affiliates) Beneficially Owns a number of shares of Common Stock equal to 50% or more of the shares of Common Stock owned by Capitol and its Affiliates as of the Effective Time (which number of shares of Common Stock shall include, for the avoidance of doubt, any shares of Common Stock acquired on the date of this Agreement), Capitol shall have the right (A) to nominate either Xxxx Xxx or Dyson Xxxxxx Xxxxxxx Venture Investorsas a Director (if the Capitol Director is up for election) and (B) to have Dyson Xxxxxx (if Capitol nominated Xxxx Xxx as a Director pursuant to clause (A) of this sentence) or Xxxx Xxx (if Capitol nominated Dyson Xxxxxx as a Director pursuant to clause (A) of this sentence) as a non-voting observer to the Board and the Company shall furnish to such observer at the same time provided to the Directors (x) notices of all Board meetings, L.P. (collectivelyy) copies of the materials with respect to all meetings of the Board (or any committees thereof) or otherwise provided to the Directors, "MSVCF"and (z) copies of any action by written consent by the Board and copies of such consent promptly after it shall have been signed by the Directors; provided, however, that the Company may redact from the information furnished under clauses (x) through (z) of this sentence any information the Company is prohibited from providing under applicable Law or that the Company reasonably determines may not be provided to protect attorney-client privilege. In addition, the Parties agree that the Company’s Chief Executive Officer shall be nominated as a Director. The Parties agree and acknowledge that the percentages referenced above are measures that are used solely for purposes of this Agreement and are not intended to establish or be equal to any ownership percentage calculated and reported under Regulation 13D-G promulgated by the SEC or under any other provision of federal or state securities Laws. (c) The Company shall (i) include each of the Nominees up for election in its proxy statement and proxy card as director nominees of the Board, not include any nominee in replacement of a Nominee without the prior written consent of the Stockholder that designated such Nominee, which consent may be withheld for any reason, (ii) recommend the election of the Nominees up for election to the stockholders of the Company and (iii) solicit proxies in favor of the election of the Nominees up for election (the "MSVCF Designees"foregoing clauses (i) through (iii), which designees shall initially be Xxxxxxx X. Xxxxxxx the “Election Support Efforts”); provided, however, if any Election Support Efforts are not permitted by the applicable rules and Xxxxxx X. Xxxxxx. Any vacancy occurring because regulations of the Approved Stock Exchange or applicable Law, then the Company shall comply with its obligation under this Agreement to the fullest extent so permitted by the applicable rules and regulations of the Approved Stock Exchange or applicable Law; and provided, further, that nothing in this Agreement or the Company’s Bylaws shall be deemed to limit the right or ability of the Company to nominate as the Company’s nominees (rather than as Platinum’s Nominees) any Platinum Nominees. (d) Each Stockholder shall, or shall cause its representatives to, appear in person or by proxy at each annual or special meeting of stockholders of the Company at which Directors are to be elected and vote, or act by written consent with respect to, all Voting Securities beneficially owned by it, to cause the Nominees of the other Stockholders to be elected to the Board, whether such Nominees have been nominated by the Board pursuant to Section 1.1(b) or by the relevant Stockholder in accordance with the Bylaws. No Stockholder shall take any action that would reasonably be likely to prevent the election of another Stockholder’s Nominee. Upon the written request of a Stockholder, each other Stockholder shall vote, or act by written consent with respect to, all Voting Securities beneficially owned by it, and otherwise take or cause to be taken all actions within its control necessary, to remove any Director designated by such requesting Stockholder and to elect any replacement Director designated as provided in this Section 1.1. Except as set forth in the immediately preceding sentence, neither the Company nor any Stockholder shall take any action to cause the removal of any Directors designated by another Stockholder in accordance with this Section 1.1. (e) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Director nominated pursuant to this Section 1.1, the remaining Directors and the Company shall, to the extent the applicable Stockholder is entitled to nominate a Director for such position pursuant to Section 1.1(b), to the fullest extent permitted by applicable Law, cause the vacancy created thereby to be filled by a new nominee of the MSVCF Designees Stockholder that designated such Director as soon as possible, and the Company and the Stockholders hereby agree to take, to the fullest extent permitted by applicable Law, at any time and from time to time, all actions necessary to accomplish the same, it being understood that any such successor designee shall be filled according to this paragraph 1 (a)(1)serve the remainder of the term of the Director whom such designee replaces. (2f) If a Nominee is not elected because of such Nominee’s death, disability, retirement, withdrawal as a nominee or for any other reason, the Stockholder that nominated such Nominee in accordance with this this Section 1.1 shall, to the extent the applicable Stockholder is entitled to nominate a Director for such position pursuant to Section 1.1(b), be entitled to designate promptly another Nominee and each other Stockholder and the Company shall take all necessary and desirable actions within its control such that the Director position for which such Nominee was nominated shall not be filled pending such designation or the size of the Board shall be increased by one (1) designee of Alta (the "Alta Designee"), which designee shall initially be Xxxxxxx Xxxxxxx. Any and such vacancy occurring because of the death, resignation or removal of the Alta Designee shall be filled according with such successor Nominee within ten (10) days of such designation. Notwithstanding anything to the contrary, the Director position for which such Nominee was nominated shall not be filled pending such designation and appointment, unless the Stockholder that nominated such Nominee in accordance with this Section 1.1 fails to designate such Nominee for more than 30 days, after which the Company may appoint an interim successor nominee who may serve as a Director if duly elected or appointed until the Stockholder that nominated such Nominee in accordance with this Section 1.1 makes such designation. No Stockholder shall be obligated to designate all (or any) of the Directors it is entitled to designate pursuant to this paragraph l(a)(2)Agreement but the failure to do so shall not constitute a waiver of its rights hereunder. (3g) In the event that Platinum has nominated less than the total number of Nominees that Platinum would be entitled to nominate pursuant to this Section 1.1, or in the event that Platinum decides to nominate one (1) designee or two (2) additional Nominees in accordance with Section 1.1(b)(ii), then Platinum shall have the right, at any time, to nominate such additional Nominee(s) to which it would be entitled, in which case the Company, the Directors and the other Stockholders shall take all necessary corporate action within their respective control, to the fullest extent permitted by applicable Law and the rules and regulations of the holders Approved Stock Exchange, to (x) enable Platinum to nominate and effect the election or appointment of such additional individuals, whether by increasing the size of the Board or otherwise, and (y) designate such additional individuals nominated by Platinum to fill such newly created vacancies or to fill any other existing vacancies. (h) In the event that a Stockholder shall cease to have the right to designate a Director pursuant to this Section 1.1, the Nominee of such Stockholder shall (i) at the request of a majority of the outstanding shares Directors then in office or the Chairperson, resign immediately or such Stockholder shall take all action necessary to remove such Nominee or (ii) if no such request is made, continue to serve until his or her term expires at the next annual meeting of Series A and Series C Preferred Stock stockholders of the Company (Company. In the "Series A and C Designee"), which designee shall initially be Xxxxx Xxxx. Any vacancy occurring because of event such Nominee resigns or is removed at the death, resignation or removal of the Series A and C Designee shall be filled according to this paragraph l (a)(3). (4) one (1) designee of the holders request of a majority of the outstanding shares of Series B Preferred Stock for which shares of Common Stock Directors then in office or the Chairperson, the Directors remaining in office shall be entitled to decrease the size of the Company were exchanged (the "Series B Designee"), which designee shall initially be Xxxxxxx Xxxxx. Any Board to eliminate such vacancy occurring because of the death, resignation or removal of the Series B Designee and no consent under Section 1.7 shall be filled according required in connection with such decrease. The Company shall, and the Stockholders agree to take all action necessary to, remove from the Board any Director that has not been nominated by a Stockholder pursuant to the provisions of this paragraph l(a)(4)Section 1.1. (5i) one (1) designee who is the Chief Executive Officer The rights of the Company (Stockholders pursuant to this Section 1.1 are personal to the "CEO Designee"), which designee Stockholders and shall initially not be Xxxxxxx X.exercised by any Transferee other than a Permitted Transferee.

Board of Directors Composition. (a) The Shareholders Company shall vote ------------------------------ or act with respect take all necessary and desirable actions such that (i) the size of the Board shall be set at eleven (11) members, each of whom shall have one Vote, provided that such number and Vote are subject to the Shares so as always to elect Section 1.1(b)(i) and Section 1.1(b)(ii), and (ii) the following as directors Persons shall form the composition of the Company Board: (collectivelyA) Xxxxx Xxxxx, Xxxx Xxxxx, Xxxxxx X’Xxxxxxx and Xxxx Xxx shall be appointed as Class A Directors with terms ending at the "Designees")Company’s 2023 Annual Meeting; (B) Xxxxxxxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxxx Xxxx shall be appointed as Class B Directors with terms ending at the Company’s 2021 Annual Meeting; and (C) Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxx-Xxxx (JP) Munfa and Xxxx Xxxx shall be appointed as Class C Directors with terms ending at the Company’s 2022 Annual Meeting. (1b) The following Parties shall have the right to nominate the following Directors (each, a “Nominee”): (i) For so long as Platinum (together with its Affiliates) meets the Platinum Director Nomination Threshold, Platinum shall have the option and right (but not the obligation) to designate, in the aggregate (and less the number of Platinum Directors who are not up for election) (y) four (4) Directors, each of whom shall be nominated by the Company and have two (2) Votes; plus (z) three (3) Directors who shall be nominated by the Company and the minimum number of whom shall qualify as “independent” solely to the extent necessary to comply with the listing standards of the Approved Stock Exchange. For so long as Platinum (together with its Affiliates) meets the Platinum Ownership Threshold but not the Platinum Director Nomination Threshold, Platinum shall have the option and right (but not the obligation) to designate any number of Directors described in the immediately preceding sentence, having one (1) or two (2) Votes each, so long as the total number of Votes of all such designees does not exceed the difference of Xxxxxx Xxxxxxx Venture Capital Fund IIthe total number of Votes constituting a majority of all Votes of all Directors minus one (1). For so long as Platinum does not meet the Platinum Ownership Threshold but (together with its Affiliates) Beneficially Owns a number of shares of Common Stock (i) equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis), L.P., Xxxxxx Xxxxxxx Venture Capital Fund II, C.V.Platinum shall have the option and right (but not the obligation) to designate one (1) Director (less the number of Platinum Directors who are not up for election) who shall be nominated by the Company, and (ii)(A) equal to or greater than 15% of the total number of shares of Common Stock issued and outstanding and (B) greater than the number of shares of Common Stock owned by any other Person or group of Affiliated Persons (in each of cases (A) and (B) of this sentence, on a Non-Fully Diluted Basis), Platinum shall have the right to designate the Chairperson from among the Directors. (ii) For so long as Platinum (together with its Affiliates) meets the Platinum Ownership Threshold, in addition to the Directors it designated and the Company nominated pursuant to the first sentence of Section 1.1(b)(i), Platinum shall have the right to designate up to two (2) additional Directors, each of whom shall be nominated by the Company. If Platinum designates one (1) or two (2) additional Directors pursuant to the provisions of this Section 1.1(b)(ii), (i) each Director designated and nominated pursuant to this Section 1.1(b)(ii) and Section 1.1(b)(i)(y) shall have a number of Votes that is equal to a fraction the denominator of which is the actual number of Directors serving on the Board at the time such Vote is cast that were nominated pursuant to this Section 1.1(b)(ii) and Section 1.1(b)(i)(y) and the numerator of which is eight (8) and (ii) the Company shall take all necessary and desirable actions such that the size of the Board shall be expanded solely to accommodate the Directors designated and nominated pursuant to this Section 1.1(b)(ii) and to appoint such Director to a directorship class of Platinum’s choice. (iii) Notwithstanding anything to the contrary contained in this Agreement, if and so long as Platinum (together with its Affiliates) meets the Platinum Director Nomination Threshold and subject to, in addition to and without limiting any and all nomination rights of Platinum and appearance, voting and consent commitments contained in this Agreement, including without limitation as set forth in Section 1.1(d), nothing in this Agreement or the Bylaws shall be deemed to limit (A) the right of Platinum to nominate additional Directors for election to the Board through any and all means not in violation of the Bylaws and to solicit stockholders outside of the Company’s proxy statement applicable to such election, nor (B) the right or ability of the Company to include such additional nominees as the Company’s nominees in its proxy statement applicable to such election and otherwise solicit stockholders to vote in favor of such additional nominees of Platinum, including taking all actions in support thereof; provided however that Platinum shall not nominate any such additional Director pursuant to clause (A) above where such nomination or Platinum’s solicitation in connection therewith would be intended or solicited to fill any position on the Board that is reserved for a nomination pursuant to Section 1.1(b)(iv) through (vi) hereof. (iv) For so long as Blackstone (together with its Affiliates) Beneficially Owns a number of shares of Common Stock equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis), Blackstone shall have the right to nominate one (1) Director (if the Blackstone Director is up for election). (v) For so long as ECP (together with their respective Affiliates) Beneficially Own, in the aggregate, a number of shares of Common Stock equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis, ECP shall have the right to nominate one (1) Director (if the ECP Director is up for election). (vi) For so long as Capitol (together with its Affiliates) Beneficially Owns a number of shares of Common Stock equal to 50% or more of the shares of Common Stock owned by Capitol and its Affiliates as of the Effective Time (which number of shares of Common Stock shall include, for the avoidance of doubt, any shares of Common Stock acquired on the date of this Agreement), Capitol shall have the right (A) to nominate either Xxxx Xxx or Xxxxx Xxxxxx Xxxxxxx Venture Investorsas a Director (if the Capitol Director is up for election) and (B) to have Dyson Xxxxxx (if Capitol nominated Xxxx Xxx as a Director pursuant to clause (A) of this sentence) or Xxxx Xxx (if Capitol nominated Dyson Xxxxxx as a Director pursuant to clause (A) of this sentence) as a non-voting observer to the Board and the Company shall furnish to such observer at the same time provided to the Directors (x) notices of all Board meetings, L.P. (collectivelyy) copies of the materials with respect to all meetings of the Board (or any committees thereof) or otherwise provided to the Directors, "MSVCF"and (z) copies of any action by written consent by the Board and copies of such consent promptly after it shall have been signed by the Directors; provided, however, that the Company may redact from the information furnished under clauses (x) through (z) of this sentence any information the Company is prohibited from providing under applicable Law or that the Company reasonably determines may not be provided to protect attorney-client privilege. In addition, the Parties agree that the Company’s Chief Executive Officer shall be nominated as a Director. The Parties agree and acknowledge that the percentages referenced above are measures that are used solely for purposes of this Agreement and are not intended to establish or be equal to any ownership percentage calculated and reported under Regulation 13D-G promulgated by the SEC or under any other provision of federal or state securities Laws. (c) The Company shall (i) include each of the Nominees up for election in its proxy statement and proxy card as director nominees of the Board, not include any nominee in replacement of a Nominee without the prior written consent of the Stockholder that designated such Nominee, which consent may be withheld for any reason, (ii) recommend the election of the Nominees up for election to the stockholders of the Company and (iii) solicit proxies in favor of the election of the Nominees up for election (the "MSVCF Designees"foregoing clauses (i) through (iii), which designees shall initially be Xxxxxxx X. Xxxxxxx the “Election Support Efforts”); provided, however, if any Election Support Efforts are not permitted by the applicable rules and Xxxxxx X. Xxxxxx. Any vacancy occurring because regulations of the Approved Stock Exchange or applicable Law, then the Company shall comply with its obligation under this Agreement to the fullest extent so permitted by the applicable rules and regulations of the Approved Stock Exchange or applicable Law; and provided, further, that nothing in this Agreement or the Company’s Bylaws shall be deemed to limit the right or ability of the Company to nominate as the Company’s nominees (rather than as Platinum’s Nominees) any Platinum Nominees. (d) Each Stockholder shall, or shall cause its representatives to, appear in person or by proxy at each annual or special meeting of stockholders of the Company at which Directors are to be elected and vote, or act by written consent with respect to, all Voting Securities beneficially owned by it, to cause the Nominees of the other Stockholders to be elected to the Board, whether such Nominees have been nominated by the Board pursuant to Section 1.1(b) or by the relevant Stockholder in accordance with the Bylaws. No Stockholder shall take any action that would reasonably be likely to prevent the election of another Stockholder’s Nominee. Upon the written request of a Stockholder, each other Stockholder shall vote, or act by written consent with respect to, all Voting Securities beneficially owned by it, and otherwise take or cause to be taken all actions within its control necessary, to remove any Director designated by such requesting Stockholder and to elect any replacement Director designated as provided in this Section 1.1. Except as set forth in the immediately preceding sentence, neither the Company nor any Stockholder shall take any action to cause the removal of any Directors designated by another Stockholder in accordance with this Section 1.1. (e) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Director nominated pursuant to this Section 1.1, the remaining Directors and the Company shall, to the extent the applicable Stockholder is entitled to nominate a Director for such position pursuant to Section 1.1(b), to the fullest extent permitted by applicable Law, cause the vacancy created thereby to be filled by a new nominee of the MSVCF Designees Stockholder that designated such Director as soon as possible, and the Company and the Stockholders hereby agree to take, to the fullest extent permitted by applicable Law, at any time and from time to time, all actions necessary to accomplish the same, it being understood that any such successor designee shall be filled according to this paragraph 1 (a)(1)serve the remainder of the term of the Director whom such designee replaces. (2f) If a Nominee is not elected because of such Nominee’s death, disability, retirement, withdrawal as a nominee or for any other reason, the Stockholder that nominated such Nominee in accordance with this this Section 1.1 shall, to the extent the applicable Stockholder is entitled to nominate a Director for such position pursuant to Section 1.1(b), be entitled to designate promptly another Nominee and each other Stockholder and the Company shall take all necessary and desirable actions within its control such that the Director position for which such Nominee was nominated shall not be filled pending such designation or the size of the Board shall be increased by one (1) designee of Alta (the "Alta Designee"), which designee shall initially be Xxxxxxx Xxxxxxx. Any and such vacancy occurring because of the death, resignation or removal of the Alta Designee shall be filled according with such successor Nominee within ten (10) days of such designation. Notwithstanding anything to the contrary, the Director position for which such Nominee was nominated shall not be filled pending such designation and appointment, unless the Stockholder that nominated such Nominee in accordance with this Section 1.1 fails to designate such Nominee for more than 30 days, after which the Company may appoint an interim successor nominee who may serve as a Director if duly elected or appointed until the Stockholder that nominated such Nominee in accordance with this Section 1.1 makes such designation. No Stockholder shall be obligated to designate all (or any) of the Directors it is entitled to designate pursuant to this paragraph l(a)(2)Agreement but the failure to do so shall not constitute a waiver of its rights hereunder. (3g) In the event that Platinum has nominated less than the total number of Nominees that Platinum would be entitled to nominate pursuant to this Section 1.1, or in the event that Platinum decides to nominate one (1) designee or two (2) additional Nominees in accordance with Section 1.1(b)(ii), then Platinum shall have the right, at any time, to nominate such additional Nominee(s) to which it would be entitled, in which case the Company, the Directors and the other Stockholders shall take all necessary corporate action within their respective control, to the fullest extent permitted by applicable Law and the rules and regulations of the holders Approved Stock Exchange, to (x) enable Platinum to nominate and effect the election or appointment of such additional individuals, whether by increasing the size of the Board or otherwise, and (y) designate such additional individuals nominated by Platinum to fill such newly created vacancies or to fill any other existing vacancies. (h) In the event that a Stockholder shall cease to have the right to designate a Director pursuant to this Section 1.1, the Nominee of such Stockholder shall (i) at the request of a majority of the outstanding shares Directors then in office or the Chairperson, resign immediately or such Stockholder shall take all action necessary to remove such Nominee or (ii) if no such request is made, continue to serve until his or her term expires at the next annual meeting of Series A and Series C Preferred Stock stockholders of the Company (Company. In the "Series A and C Designee"), which designee shall initially be Xxxxx Xxxx. Any vacancy occurring because of event such Nominee resigns or is removed at the death, resignation or removal of the Series A and C Designee shall be filled according to this paragraph l (a)(3). (4) one (1) designee of the holders request of a majority of the outstanding shares of Series B Preferred Stock for which shares of Common Stock Directors then in office or the Chairperson, the Directors remaining in office shall be entitled to decrease the size of the Company were exchanged (the "Series B Designee"), which designee shall initially be Xxxxxxx Xxxxx. Any Board to eliminate such vacancy occurring because of the death, resignation or removal of the Series B Designee and no consent under Section 1.7 shall be filled according required in connection with such decrease. The Company shall, and the Stockholders agree to take all action necessary to, remove from the Board any Director that has not been nominated by a Stockholder pursuant to the provisions of this paragraph l(a)(4)Section 1.1. (5i) one (1) designee who is the Chief Executive Officer The rights of the Company (Stockholders pursuant to this Section 1.1 are personal to the "CEO Designee"), which designee Stockholders and shall initially not be Xxxxxxx X.exercised by any Transferee other than a Permitted Transferee.

Board of Directors Composition. (a) [Intentionally omitted.] (b) The Shareholders following Parties shall vote ------------------------------ or act have the right to nominate the following Directors (each, a “Nominee”): (i) For so long as Platinum (together with respect its Affiliates) meets the Platinum Director Nomination Threshold, Platinum shall have the option and right (but not the obligation) to designate, in the aggregate (and less the number of Platinum Directors who are not up for election) (y) four (4) Directors, each of whom shall be nominated by the Company and have the number of Votes as determined in accordance with Article Fifth of the Charter; plus (z) three (3) Directors who shall be nominated by the Company and the minimum number of whom shall qualify as “independent” solely to the Shares so as always extent necessary to elect comply with the following as directors listing standards of the Company Approved Stock Exchange. For so long as Platinum (collectivelytogether with its Affiliates) meets the Platinum Ownership Threshold but not the Platinum Director Nomination Threshold, Platinum shall have the "Designees"option and right (but not the obligation) to designate any number of Directors described in the immediately preceding sentence, having the number of Votes as determined in accordance with Article Fifth of the Charter, so long as the total number of Votes of all such designees does not exceed total number of Votes constituting a majority of all Votes of all Directors minus one (1) . For so long as Platinum does not meet the Platinum Ownership Threshold but (together with its Affiliates) Beneficially Owns a number of shares of Common Stock (i) equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis), Platinum shall have the option and right (but not the obligation) to designate one (1) Director (less the number of Platinum Directors who are not up for election) who shall be nominated by the Company, and (ii)(A) equal to or greater than 15% of the total number of shares of Common Stock issued and outstanding and (B) greater than the number of shares of Common Stock owned by any other Person or group of Affiliated Persons (in each of cases (A) and (B) of this sentence, on a Non-Fully Diluted Basis), Platinum shall have the right to designate the Chairperson from among the Directors. (ii) For so long as Platinum (together with its Affiliates) meets the Platinum Ownership Threshold, in addition to the Directors it designated and the Company nominated pursuant to the second sentence of Section 1.1(b)(i), Platinum shall have the right to designate up to two (2) designees additional Directors, each of whom shall be nominated by the Company. If Platinum designates one (1) or two (2) additional Directors pursuant to the provisions of this Section 1.1(b)(ii), (i) each Director designated and nominated pursuant to this Section 1.1(b)(ii) and the second sentence of Section 1.1(b)(i)shall have a number of Votes as determined in accordance with Article Fifth of the Charter and (ii) the Company shall take all necessary and desirable actions such that the size of the Board shall be expanded solely to accommodate the Directors designated and nominated pursuant to this Section 1.1(b)(ii) and to appoint such Director to a directorship class of Platinum’s choice. (iii) Notwithstanding anything to the contrary contained in this Agreement, if and so long as Platinum (together with its Affiliates) meets the Platinum Director Nomination Threshold and subject to, in addition to and without limiting any and all nomination rights of Platinum and appearance, voting and consent commitments contained in this Agreement, including without limitation as set forth in Section 1.1(d), nothing in this Agreement or the Bylaws shall be deemed to limit (A) the right of Platinum to nominate additional Directors for election to the Board through any and all means not in violation of the Bylaws and to solicit stockholders outside of the Company’s proxy statement applicable to such election, nor (B) the right or ability of the Company to include such additional nominees as the Company’s nominees in its proxy statement applicable to such election and otherwise solicit stockholders to vote in favor of such additional nominees of Platinum, including taking all actions in support thereof; provided however that Platinum shall not nominate any such additional Director pursuant to clause (A) above where such nomination or Platinum’s solicitation in connection therewith would be intended or solicited to fill any position on the Board that is reserved for a nomination pursuant to Section 1.1(b)(iv) or (v) hereof. (iv) For so long as ECP (together with their respective Affiliates) Beneficially Own, in the aggregate, a number of shares of Common Stock equal to or greater than four and one half percent (4.5%) of the total number of shares of Common Stock issued and outstanding (on a Non-Fully Diluted Basis), ECP shall have the right to nominate one (1) Director (if the ECP Director is up for election). (v) For so long as Capitol (together with its Affiliates) Beneficially Owns a number of shares of Common Stock equal to 50% or more of the shares of Common Stock owned by Capitol and its Affiliates as of the Closing Date (which number of shares of Common Stock shall include, for the avoidance of doubt, any shares of Common Stock acquired on the date of this Agreement), Capitol shall have the right (A) to nominate either Xxxx Xxx or Xxxxx Xxxxxx Xxxxxxx Venture Capital Fund IIas a Director (if the Capitol Director is up for election) and (B) to have Xxxxx Xxxxxx (if Capitol nominated Xxxx Xxx as a Director pursuant to clause (A) of this sentence) or Xxxx Xxx (if Capitol nominated Xxxxx Xxxxxx as a Director pursuant to clause (A) of this sentence) as a non-voting observer to the Board and the Company shall furnish to such observer at the same time provided to the Directors (x) notices of all Board meetings, L.P., Xxxxxx Xxxxxxx Venture Capital Fund II, C.V.(y) copies of the materials with respect to all meetings of the Board (or any committees thereof) or otherwise provided to the Directors, and Xxxxxx Xxxxxxx Venture Investors(z) copies of any action by written consent by the Board and copies of such consent promptly after it shall have been signed by the Directors; provided, L.P. however, that the Company may redact from the information furnished under clauses (collectivelyx) through (z) of this sentence any information the Company is prohibited from providing under applicable Law or that the Company reasonably determines may not be provided to protect attorney-client privilege. In addition, "MSVCF"the Parties agree that the Company’s Chief Executive Officer shall be nominated as a Director. The Parties agree and acknowledge that the percentages referenced above are measures that are used solely for purposes of this Agreement and are not intended to establish or be equal to any ownership percentage calculated and reported under Regulation 13D-G promulgated by the SEC or under any other provision of federal or state securities Laws. (c) The Company shall (i) include each of the Nominees up for election in its proxy statement and proxy card as director nominees of the Board, not include any nominee in replacement of a Nominee without the prior written consent of the Stockholder that designated such Nominee, which consent may be withheld for any reason, (ii) recommend the election of the Nominees up for election to the stockholders of the Company and (iii) solicit proxies in favor of the election of the Nominees up for election (the "MSVCF Designees"foregoing clauses (i) through (iii), which designees shall initially be Xxxxxxx X. Xxxxxxx the “Election Support Efforts”); provided, however, if any Election Support Efforts are not permitted by the applicable rules and Xxxxxx X. Xxxxxx. Any vacancy occurring because regulations of the Approved Stock Exchange or applicable Law, then the Company shall comply with its obligation under this Agreement to the fullest extent so permitted by the applicable rules and regulations of the Approved Stock Exchange or applicable Law; and provided, further, that nothing in this Agreement or the Company’s Bylaws shall be deemed to limit the right or ability of the Company to nominate as the Company’s nominees (rather than as Platinum’s Nominees) any Platinum Nominees. (d) Each Stockholder shall, or shall cause its representatives to, appear in person or by proxy at each annual or special meeting of stockholders of the Company at which Directors are to be elected and vote, or act by written consent with respect to, all Voting Securities beneficially owned by it, to cause the Nominees of the other Stockholders to be elected to the Board, whether such Nominees have been nominated by the Board pursuant to Section 1.1(b) or by the relevant Stockholder in accordance with the Bylaws. No Stockholder shall take any action that would reasonably be likely to prevent the election of another Stockholder’s Nominee. Upon the written request of a Stockholder, each other Stockholder shall vote, or act by written consent with respect to, all Voting Securities beneficially owned by it, and otherwise take or cause to be taken all actions within its control necessary, to remove any Director designated by such requesting Stockholder and to elect any replacement Director designated as provided in this Section 1.1. Except as set forth in the immediately preceding sentence, neither the Company nor any Stockholder shall take any action to cause the removal of any Directors designated by another Stockholder in accordance with this Section 1.1. (e) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Director nominated pursuant to this Section 1.1, the remaining Directors and the Company shall, to the extent the applicable Stockholder is entitled to nominate a Director for such position pursuant to Section 1.1(b), to the fullest extent permitted by applicable Law, cause the vacancy created thereby to be filled by a new nominee of the MSVCF Designees Stockholder that designated such Director as soon as possible, and the Company and the Stockholders hereby agree to take, to the fullest extent permitted by applicable Law, at any time and from time to time, all actions necessary to accomplish the same, it being understood that any such successor designee shall be filled according to this paragraph 1 (a)(1)serve the remainder of the term of the Director whom such designee replaces. (2f) If a Nominee is not elected because of such Nominee’s death, disability, retirement, withdrawal as a nominee or for any other reason, the Stockholder that nominated such Nominee in accordance with this Section 1.1 shall, to the extent the applicable Stockholder is entitled to nominate a Director for such position pursuant to Section 1.1(b), be entitled to designate promptly another Nominee and each other Stockholder and the Company shall take all necessary and desirable actions within its control such that the Director position for which such Nominee was nominated shall not be filled pending such designation or the size of the Board shall be increased by one (1) designee of Alta (the "Alta Designee"), which designee shall initially be Xxxxxxx Xxxxxxx. Any and such vacancy occurring because of the death, resignation or removal of the Alta Designee shall be filled according with such successor Nominee within ten (10) days of such designation. Notwithstanding anything to the contrary, the Director position for which such Nominee was nominated shall not be filled pending such designation and appointment, unless the Stockholder that nominated such Nominee in accordance with this Section 1.1 fails to designate such Nominee for more than 30 days, after which the Company may appoint an interim successor nominee who may serve as a Director if duly elected or appointed until the Stockholder that nominated such Nominee in accordance with this Section 1.1 makes such designation. No Stockholder shall be obligated to designate all (or any) of the Directors it is entitled to designate pursuant to this paragraph l(a)(2)Agreement but the failure to do so shall not constitute a waiver of its rights hereunder. (3g) In the event that Platinum has nominated less than the total number of Nominees that Platinum would be entitled to nominate pursuant to this Section 1.1, or in the event that Platinum decides to nominate one (1) designee or two (2) additional Nominees in accordance with Section 1.1(b)(ii), then Platinum shall have the right, at any time, to nominate such additional Nominee(s) to which it would be entitled, in which case the Company, the Directors and the other Stockholders shall take all necessary corporate action within their respective control, to the fullest extent permitted by applicable Law and the rules and regulations of the holders Approved Stock Exchange, to (x) enable Platinum to nominate and effect the election or appointment of such additional individuals, whether by increasing the size of the Board or otherwise, and (y) designate such additional individuals nominated by Platinum to fill such newly created vacancies or to fill any other existing vacancies. (h) In the event that a Stockholder shall cease to have the right to designate a Director pursuant to this Section 1.1, the Nominee of such Stockholder shall (i) at the request of a majority of the outstanding shares Directors then in office or the Chairperson, resign immediately or such Stockholder shall take all action necessary to remove such Nominee or (ii) if no such request is made, continue to serve until his or her term expires at the next annual meeting of Series A and Series C Preferred Stock stockholders of the Company (Company. In the "Series A and C Designee"), which designee shall initially be Xxxxx Xxxx. Any vacancy occurring because of event such Xxxxxxx resigns or is removed at the death, resignation or removal of the Series A and C Designee shall be filled according to this paragraph l (a)(3). (4) one (1) designee of the holders request of a majority of the outstanding shares of Series B Preferred Stock for which shares of Common Stock Directors then in office or the Chairperson, the Directors remaining in office shall be entitled to decrease the size of the Company were exchanged (the "Series B Designee"), which designee shall initially be Xxxxxxx Xxxxx. Any Board to eliminate such vacancy occurring because of the death, resignation or removal of the Series B Designee and no consent under Section 1.7 shall be filled according required in connection with such decrease. The Company shall, and the Stockholders agree to take all action necessary to, remove from the Board any Director that has not been nominated by a Stockholder pursuant to the provisions of this paragraph l(a)(4)Section 1.1. (5i) one (1) designee who is the Chief Executive Officer The rights of the Company (Stockholders pursuant to this Section 1.1 are personal to the "CEO Designee"), which designee Stockholders and shall initially not be Xxxxxxx X.exercised by any Transferee other than a Permitted Transferee.