Common use of Board of Directors Matters Clause in Contracts

Board of Directors Matters. For so long as MPM Capital continues to own the Threshold Securities: (a) the Company shall: (i) use its reasonable best efforts to cause one person designated by MPM Capital to be nominated and elected to the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders for the election directors (the “MPM Designee”), which designee shall initially be initially Xxxx Xxxxx; and (ii) use its reasonable best efforts to cause one person designated by mutual agreement of MPM Capital and Bay City Capital to be nominated and elected to the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders for the election of directors (the “Investor Designee”); and (iii) if any MPM Designee or Investor Designee elected to the Company’s Board of Directors ceases to be a member of the Company’s Board of Directors during such person’s term as a director due to such person’s resignation, death or removal, the Company shall use its reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, and such designee shall be an MPM Designee and the Investor Designee, as applicable, for purposes of this Agreement; and (b) as long as an MPM Designee remains on the Company’s Board of Directors pursuant to this Section 7.2, the Company shall use its commercially reasonable efforts to appoint one of the MPM Designees to the compensation committee of the Company’s Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading.

Board of Directors Matters. For so long as MPM Capital continues to shall own Registrable Securities representing not less than 10% of the Threshold Securitiestotal shares of Common Stock then outstanding: (a) the Company's Board of Directors shall consist of nine members, and the Company's Board of Directors shall be divided into three classes, with each class having a three-year term; (b) the Company shall: (i) use its commercially reasonable best efforts to cause one person Mr. Dennis Henner, as designated by MPM Capital MXX Xxxxxxx (the "CLASS II DESIGNEE"), to be nominated and elected to Class II of the Company’s 's Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders 's stockholders for the election directors (the “MPM Designee”), which designee shall initially be initially Xxxx Xxxxxof Class II directors; and (ii) use its commercially reasonable best efforts to cause one person Mr. Nick Simon, as designated by mutual agreement of MPM Capital Xxxxxxx (the "CLASS III DESIGNEE" and Bay City Capital collectively with the Class II Designee, the "MPM DESIGNEES"), to be nominated and elected to Class III of the Company’s 's Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders 's stockholders for the election of directors (the “Investor Designee”)Class III directors; and (iii) if any MPM Designee or Investor Designee elected to the Company’s 's Board of Directors ceases to be a member of the Company’s 's Board of Directors during such person’s 's term as a director due to such person’s 's resignation, death or removal, the Company shall use its commercially reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, and such designee shall be an MPM Designee and the Investor Designee, as applicable, for purposes of this Agreement; and; (bc) as long as an MPM Designee remains on the Company’s 's Board of Directors pursuant to this Section 7.23.4(b), then: (i) the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the compensation committee Nominating Committee of the Company’s 's Board of Directors; and (ii) the Company shall not materially amend or modify the Charter of the Nominating Committee of the Company's Board of Directors as in effect as of the date of this Agreement; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s 's Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s 's securities are listed for trading; and provided further that the Company shall be able to amend or modify the Charter of the Nominating Committee of the Company's Board of Directors as is necessary to not conflict with any applicable federal securities laws, state laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company's securities are listed for trading; (d) as long as an MPM Designee remains on the Company's Board of Directors pursuant to Section 3.4(b), then the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the Compensation Committee of the Company's Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company's Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company's securities are listed for trading; and (e) the Company shall use its commercially reasonable efforts to maintain the Company's amended and restated certificate of incorporation and bylaws, as amended, to permit the Company to indemnify its directors and officers to the fullest extent permitted by law (including to seek to amend such certificate and bylaws to the extent the law permits greater indemnification than then permitted by such certificate and bylaws).

Board of Directors Matters. For so long as MPM Capital continues to shall own Registrable Securities representing not less than 10% of the Threshold Securitiestotal shares of Common Stock then outstanding: (a) the Company’s Board of Directors shall consist of nine members, and the Company’s Board of Directors shall be divided into three classes, with each class having a three-year term; (b) the Company shall: (i) use its commercially reasonable best efforts to cause one person Xx. Xxxxxx Xxxxxx, as designated by MPM Capital (the “Class II Designee”), to be nominated and elected to Class II of the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders stockholders for the election directors (the “MPM Designee”), which designee shall initially be initially Xxxx Xxxxxof Class II directors; and (ii) use its commercially reasonable best efforts to cause one person Xx. Xxxx Xxxxx, as designated by mutual agreement of MPM Capital (the “Class III Designee” and Bay City Capital collectively with the Class II Designee, the “MPM Designees”), to be nominated and elected to Class III of the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders stockholders for the election of directors (the “Investor Designee”)Class III directors; and (iii) if any MPM Designee or Investor Designee elected to the Company’s Board of Directors ceases to be a member of the Company’s Board of Directors during such person’s term as a director due to such person’s resignation, death or removal, the Company shall use its commercially reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, and such designee shall be an MPM Designee and the Investor Designee, as applicable, for purposes of this Agreement; and; (bc) as long as an MPM Designee remains on the Company’s Board of Directors pursuant to this Section 7.23.4(b), then: (i) the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the compensation Nominating Committee of the Company’s Board of Directors; and (ii) the Company shall not materially amend or modify the Charter of the Nominating Committee of the Company’s Board of Directors as in effect as of the date of this Agreement; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading; and provided further that the Company shall be able to amend or modify the Charter of the Nominating Committee of the Company’s Board of Directors as is necessary to not conflict with any applicable federal securities laws, state laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading; (d) as long as an MPM Designee remains on the Company’s Board of Directors pursuant to Section 3.4(b), then the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the Compensation Committee of the Company’s Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading; and (e) the Company shall use its commercially reasonable efforts to maintain the Company’s amended and restated certificate of incorporation and bylaws, as amended, to permit the Company to indemnify its directors and officers to the fullest extent permitted by law (including to seek to amend such certificate and bylaws to the extent the law permits greater indemnification than then permitted by such certificate and bylaws).

Board of Directors Matters. For so long as MPM Capital continues to shall own Registrable Securities representing not less than 10% of the Threshold Securitiestotal shares of Common Stock then outstanding: (aA) the Company's Board of Directors shall consist of nine members, and the Company's Board of Directors shall be divided into three classes, with each class having a three-year term; (B) the Company shall: (i) use its commercially reasonable best efforts to cause one person Mr. Dennis Henner, as designated by MPM Capital to be nominated (the "CLASS II DESIGNEE"), xx xx xxxxxxxxd and elected to Class II of the Company’s 's Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders 's stockholders for the election directors (the “MPM Designee”), which designee shall initially be initially Xxxx Xxxxxof Class II directors; and (ii) use its commercially reasonable best efforts to cause one person Mr. Nick Simon, as designated by mutual agreement of MPM Capital and Bay City Capital (the "CLASS III DESIGNEE" axx xxxxxxxxxxxy with the Class II Designee, the "MPM DESIGNEES"), to be nominated and elected to Class III of the Company’s 's Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders 's stockholders for the election of directors (the “Investor Designee”)Class III directors; and (iii) if any MPM Designee or Investor Designee elected to the Company’s 's Board of Directors ceases to be a member of the Company’s 's Board of Directors during such person’s 's term as a director due to such person’s 's resignation, death or removal, the Company shall use its commercially reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, and such designee shall be an MPM Designee and the Investor Designee, as applicable, for purposes of this Agreement; and; (bC) as long as an MPM Designee remains on the Company’s 's Board of Directors pursuant to this Section 7.23.4(b), then: (i) the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the compensation committee Nominating Committee of the Company’s 's Board of Directors; and (ii) the Company shall not materially amend or modify the Charter of the Nominating Committee of the Company's Board of Directors as in effect as of the date of this Agreement; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s 's Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s 's securities are listed for trading; and provided further that the Company shall be able to amend or modify the Charter of the Nominating Committee of the Company's Board of Directors as is necessary to not conflict with any applicable federal securities laws, state laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company's securities are listed for trading; (D) as long as an MPM Designee remains on the Company's Board of Directors pursuant to Section 3.4(b), then the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the Compensation Committee of the Company's Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company's Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company's securities are listed for trading; and (E) the Company shall use its commercially reasonable efforts to maintain the Company's amended and restated certificate of incorporation and bylaws, as amended, to permit the Company to indemnify its directors and officers to the fullest extent permitted by law (including to seek to amend such certificate and bylaws to the extent the law permits greater indemnification than then permitted by such certificate and bylaws).

Board of Directors Matters. For so long as MPM Capital continues to own the Threshold Securities: (a) Promptly after (but in no event later than three (3) Business Days after) the Special Preferred Stock Creation Date, the Company shall: shall cause the number of members that shall constitute its board of directors to be increased by one (i1) use its reasonable best efforts member and shall cause the vacancy created thereby to cause be filled by one person individual designated by MPM Capital to be nominated and elected the Designated Investor in a written notice delivered to the Company’s Board of Directors at each meeting or , pursuant to each consent the rights afforded to the Designated Investor by virtue of the Special Preferred Stock (such person, the “Investor Director”). (b) As long as the Investors continue to own more than fifteen percent (15%) of the Investor Shares, the Investors shall be entitled at their option to (but shall not be obligated to) designate, by written notice to the Company, one individual as an observer to the board of directors, and all committees of the board of directors, of the Company (the “Board Observer”). The Board Observer shall, subject to any reasonable confidentiality restrictions as such board or committee may require, and any restrictions of The Nasdaq Global Market or applicable law, be entitled to attend all meetings of the Company’s shareholders board of directors and any committees thereof, to be given advance notice of all meetings not later than the time notice is given to any member of the board of directors and to receive upon issuance to the members of the board of directors or any committees thereof any materials prepared for the election members of the board of directors or committees thereof (the “MPM Designee”but shall have no right to participate in such meetings). The Board Observer shall, which designee shall initially subject to any reasonable confidentiality restrictions as such board or committee may require, and any restrictions of The Nasdaq Global Market or applicable law, be initially Xxxx Xxxxx; and (ii) use its reasonable best efforts to cause one person designated by mutual agreement of MPM Capital and Bay City Capital to be nominated and elected afforded to the Company’s Board same rights and privileges as the other members of Directors at each meeting or pursuant to each consent the board of directors of the Company’s shareholders for , other than the election right to vote on matters brought before the members, including, without limitation, rights to indemnification, insurance, notice, information and the prompt reimbursement of expenses (but not the payment of directors fees). (c) Upon the “consummation of the Distribution, upon the consummation of the Rights Offering and on the Investor Designee”); and (iii) if any MPM Designee or Investor Designee elected to Backstop Closing Date, the Company’s Board members of Directors ceases to be a member the board of directors of the Company’s Board of Directors during such person’s term as a director due to such person’s resignation, death or removal, the Company shall use its reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, and such designee shall be an MPM Designee and not including the Investor DesigneeDirector, as applicable, for purposes of this Agreement; and (b) as long as an MPM Designee remains on the Company’s Board of Directors pursuant to this Section 7.2, the Company shall use its commercially reasonable efforts to appoint one consist of the MPM Designees to the compensation committee of the Company’s Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange individuals named on which the Company’s securities are listed for tradingSchedule 4.4(c) hereto.

Board of Directors Matters. For so long as MPM Capital the Purchasers collectively continues to own the Threshold Securities: (a) the Company shall: (i) use its reasonable best efforts to cause one person designated by MPM Capital the Purchasers to be nominated and elected to the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders for the election directors (the “MPM Purchaser Designee”), which designee shall initially be initially Xxxx Xxxxxx X. Xxxxx; and (ii) use its reasonable best efforts to cause one person designated by mutual agreement of MPM Capital and Bay City Capital to be nominated and elected to if the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders for the election of directors (the “Investor Designee”); and (iii) if any MPM Designee or Investor Purchaser Designee elected to the Company’s Board of Directors ceases to be a member of the Company’s Board of Directors during such person’s term as a director due to such person’s resignation, death or removal, the Company shall use its reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital holders of at least 50% of the Preferred Shares or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, Common Stock into which the Preferred Shares are convertible and such designee shall be an MPM the Purchaser Designee and the Investor Designee, as applicable, for purposes of this Agreement; and (b) as long as an MPM the Purchaser Designee remains on the Company’s Board of Directors pursuant to this Section 7.2, the Company shall use its commercially reasonable efforts to appoint one of the MPM Designees Purchaser Designee to the compensation committee of the Company’s Board of Directors and as chair of the nominating committee of the Company’s Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities shares are listed for trading.

Board of Directors Matters. For so long as MPM Capital continues to shall own Registrable Securities representing not less than 10% of the Threshold Securitiestotal shares of Common Stock then outstanding: (a) the Company’s Board of Directors shall consist of nine members, and the Company’s Board of Directors shall be divided into three classes, with each class having a three-year term; (b) the Company shall: (i) use its commercially reasonable best efforts to cause one person Mx. Xxxxxx Xxxxxx, as designated by MPM Capital (the “Class II Designee”), to be nominated and elected to Class II of the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders stockholders for the election directors (the “MPM Designee”), which designee shall initially be initially Xxxx Xxxxxof Class II directors; and (ii) use its commercially reasonable best efforts to cause one person Mx. Xxxx Xxxxx, as designated by mutual agreement of MPM Capital (the “Class III Designee” and Bay City Capital collectively with the Class II Designee, the “MPM Designees”), to be nominated and elected to Class III of the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders stockholders for the election of directors (the “Investor Designee”)Class III directors; and (iii) if any MPM Designee or Investor Designee elected to the Company’s Board of Directors ceases to be a member of the Company’s Board of Directors during such person’s term as a director due to such person’s resignation, death or removal, the Company shall use its commercially reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, and such designee shall be an MPM Designee and the Investor Designee, as applicable, for purposes of this Agreement; and; (bc) as long as an MPM Designee remains on the Company’s Board of Directors pursuant to this Section 7.23.4(b), then: (i) the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the compensation Nominating Committee of the Company’s Board of Directors; and (ii) the Company shall not materially amend or modify the Charter of the Nominating Committee of the Company’s Board of Directors as in effect as of the date of this Agreement; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading; and provided further that the Company shall be able to amend or modify the Charter of the Nominating Committee of the Company’s Board of Directors as is necessary to not conflict with any applicable federal securities laws, state laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading; (d) as long as an MPM Designee remains on the Company’s Board of Directors pursuant to Section 3.4(b), then the Company shall use its commercially reasonable best efforts to appoint one of the MPM Designees to the Compensation Committee of the Company’s Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading; and (e) the Company shall use its commercially reasonable efforts to maintain the Company’s amended and restated certificate of incorporation and bylaws, as amended, to permit the Company to indemnify its directors and officers to the fullest extent permitted by law (including to seek to amend such certificate and bylaws to the extent the law permits greater indemnification than then permitted by such certificate and bylaws).