Common use of Election of Directors Clause in Contracts

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect three two (32) directors of the Corporation; provided, however, that, at any time there are any shares of Corporation (the “Series A-1 Preferred Stock issued A Directors”) and outstanding, in lieu of the holders of record of the shares of Preferred Common Stock, the holders of record of shares of Series A-1 Preferred Stock exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockCorporation. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series A Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series A Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The (a) At each election of directors in which the holders of record the Company’s Common Stock (the “Common Stock”), the holders of the shares of Company’s Series C Preferred Stock (the “Series C Preferred Stock”), exclusively and the holders of the Company’s Series B Preferred Stock (the “Series B Preferred Stock”), the holders of the Company’s Series A Preferred Stock (the “Series A Preferred Stock”) and/or the holders of the Company’s Series A-1 Preferred Stock (the “Series A-1 Preferred Stock” ), whether voting together as a single class or each voting as a separate class, shall be are entitled to elect directors of the Company, the Stockholders shall, at all times when entitled to vote or give a written consent with respect to, vote (or shall consent to vote pursuant to an action by written consent of the holders of capital stock of the Company) all of their respective Stockholder Shares so as to elect: (i) for so long as the Avalon Major Investor is a Majority Investor, one (1) designee of the Avalon Major Investor (the “Avalon Director”), which designee shall initially be Xxx Xxxxxxx, to serve as one (1) of the three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall to be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed elected by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the then-outstanding shares of Series A Preferred Stock, voting as a separate class; (ii) for so long as the MPM Major Investor is a Majority Investor, one (1) designee of the MPM Major Investor (the “MPM Director”), which designee shall initially be Xxxx Xxxxxx Vort, to serve as one (1) of the three (3) directors to be elected by the holders of a majority of the then-outstanding shares of Series A Preferred Stock, voting as a separate class; (iii) one (1) designee that is designated by the holders of at least seventy-five percent (75%) of the then-outstanding shares of Series A Preferred Stock (the “Additional Series A Director”), which designee shall initially be Xxx Xxxxxxx, to serve as one (1) of the three (3) directors to be elected by the holders of a majority of the then-outstanding shares of Series A Preferred Stock, voting as a separate class; (iv) one (1) designee that is designated by the holders of a majority of the then-outstanding shares of Series C Preferred Stock and Series B Preferred Stock, voting together as a single class on an as-if-converted to Common Stock basis (the “Series B/C Director”) to serve as one (1) of the remaining directors, which designee shall initially be Xxxxx Xxxxxx; (v) one (1) designee that is designated by the holders of a majority of the then-outstanding shares of Common Stock held by the Common Holders, which designee shall in all cases be the person serving as the Chief Executive Officer of the Company (the “CEO Director”), which shall initially be Xxxxxx St. Xxxxx, to serve as one (1) of the remaining directors; and (vi) other designees that are acceptable to a majority of the Series A Directors as independent members of the Board of Directors (the “Independent Directors”), which designees shall initially be Xxxxx Xxxxxx and Xxx Xxxxxx, to serve as the remaining directors. (b) Any vote taken to remove any director elected pursuant to this Section 2.3, or series to fill any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 2.3, shall also be subject to the provisions of this Section 2.3. (c) None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any such party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board of Directors by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. (d) The Company agrees that it shall, at the request of any Stockholder or group of Stockholders entitled to elect such director shall constitute designate directors pursuant to Section 2.3(a), promptly take all actions necessary (pursuant to the Company’s bylaws, the laws of the State of Delaware or otherwise) to call and conduct a quorum special meeting of the stockholders of the Company for the purpose of electing such director. Except as otherwise provided directors in this Subsection 4.2, a vacancy in any directorship filled by accordance with the holders provisions of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Section 2.3(a).

Election of Directors. The On all matters relating to the election of the Directors, the Shareholders agree to vote all Shares held by them (or the holders thereof shall consent pursuant to an action by written consent of the holders of record capital stock of the shares Company) so as to elect members of the Board as follows: (a) one (1) representative of the Investors (the “Investor Designee”) designated by a majority in interest of the Preferred Stock, exclusively Shares and as a separate class, Common Shares issued upon conversion of any Preferred Shares and which shall be entitled to elect nominated by Xxxxx Street Partners, LLC, which individual shall initially be Xxxxxxx X. Xxxxx, and which director shall be the Preferred Director, as specified in the Company’s Articles of Incorporation; (b) three (3) directors representatives of the CorporationKey Holders designated by a majority in interest of the Common Shares held by the Key Holders, one of whom must be the person then serving as Chief Executive Officer of the Company (the “CEO Director”), which individuals shall initially be the Company’s current Chief Executive Officer (Xxxxxx Xxxxxxxxx), Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx; provided, however, that, at that if for any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu reason the CEO Director shall cease to serve as the Chief Executive Officer of the holders of record Company, each of the shares of Preferred Stock, Shareholders shall promptly vote their respective Shares (i) to remove the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors former Chief Executive Officer from the Board if such person has not resigned as a member of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause byBoard, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled (ii) to elect such director person’s replacement as Chief Executive Officer of the Company as the new CEO Director; and (c) one individual not otherwise an Affiliate (as defined below) of the Company or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Investor who has material human resources, payroll or series of stock fail software expertise and who is mutually acceptable to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of i) Key Holders holding a majority of such shares. At any meeting the Shares held for by all of the purpose of electing a directorKey Holders, the presence in person or by proxy of and (ii) the holders of a majority of the outstanding shares Shares held by the Investors, which shall be designated following the date of the class this Agreement. For purposes of this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2any other entity (collectively, a vacancy in any directorship filled by the holders of any class or series “Person”) shall be filled only deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by vote or written consent in lieu of a meeting of the holders is under common control with such Person, including, without limitation, any partner, officer, director, member or employee of such class Person and any venture capital fund now or series hereafter existing that is controlled by or by any remaining director under common control with one or directors elected by more general partners of or shares the holders of same management company with such class or series pursuant to this Subsection 4.2Person.

Election of Directors. 3.2.1 The Board of Directors shall consist of five (5) directors. 3.2.2 The holders of record of the outstanding shares of Series A Preferred Stock and Series B Preferred Stock, exclusively and voting together as a separate classsingle class pursuant to Section 3.1, shall be entitled to elect three (3) two directors of the Corporation; providedCorporation (each, however, that, at any time there are any a “Preferred Director” and together the “Preferred Directors”). 3.2.3 Upon the issuance of shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of C Preferred Stock, the holders of record of the outstanding shares of Series A-1 each series of Preferred Stock shall, voting together as a single class pursuant to Section 3.1, be entitled to elect the number of director(s) who comprise a percentage of the Board of Directors proportionate to the percentage of the issued and outstanding shares of Common Stock into which such series of Preferred Stock shall be entitled convertible (thereafter referred to elect three (3) directors of the Corporation (as the “Preferred Directors”); provided, furtherhowever, that for administrative convenienceholders of issued and outstanding Common Stock, the initial Preferred Directors may also voting together as a class, shall be appointed by entitled to elect at least one Director to the Board of Directors in connection with the approval of the initial issuance of (each, a “non-Preferred Stock without a separate action by the holders of Director”). 3.2.4 Any Preferred Stock. Any director Director elected as provided in the preceding sentences Sections 3.2.2 and 3.2.3 may be removed with or without cause by, and only by, the affirmative vote of the holders of the outstanding shares of the class or series of stock entitled Preferred Stock eligible to elect such director or directorsPreferred Director, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of such stockholders. If the holders of shares of any class or series of stock Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directorsPreferred Director, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Sections 3.2.2 and 3.2.3, then any such directorship not so filled shall remain vacant until such time as the holders of the such series or class of stock Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by the Board or the stockholders of the Corporation other than by the stockholders holders of record of the Corporation that are entitled to elect a person to fill such directorshipoutstanding shares of Preferred Stock, voting exclusively and as a separate class, that are entitled to elect the applicable Preferred Director pursuant to Section 3.2.2 or 3.2.3. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 3.2, a vacancy in any directorship filled by the holders of any class or series stockholders entitled to elect such directors shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Section 3.2. The rights of the holders of the Series A Preferred Stock to elect a Preferred Director under Section 3.2.2 shall terminate when (following the applicable Issue Date), the shares of Common Stock issuable upon conversion of the outstanding shares of Series A Preferred Stock represent less than seven and eight-tenths percent (7.8%) of the sum of (x) the outstanding shares of Common Stock the Corporation and (y) the number of shares of Common Stock of the Corporation issuable upon the conversion of the outstanding shares of all classes of Preferred Stock. The rights of the holders of the Series B Preferred Stock to elect a Preferred Director under Section 3.2.2 shall terminate when (following the applicable Issue Date), the shares of Common Stock issuable upon conversion of the outstanding shares of Series B Preferred Stock represent less than the Series B Percentage (defined below) of the sum of (x) the outstanding shares of Common Stock the Corporation and (y) the number of shares of Common Stock of the Corporation issuable upon the conversion of the outstanding shares of all classes of Preferred Stock.

Election of Directors. (a) The holders of record Kanders Representative and the Ivy Representative shall each have the option, but not the obligation, to propose one director to the nominating committee of the shares Company’s Board of Preferred Stock, exclusively and Directors for nomination as a separate class, shall be entitled candidate for election to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action Company. In the event that all candidates proposed for nomination by the holders Kanders Representative and the Ivy Representative, as applicable, are nominated for election by the nominating committee of Preferred Stock. Any director elected the Company’s Board of Directors, each Stockholder agrees (subject to any existing fiduciary duties of such Stockholder) to vote all shares of Stock beneficially owned or held of record by such Stockholder and shares of Stock as provided in the preceding sentences may be removed without cause byto which he has voting control, as set forth on Schedule A, and only byagrees to use his reasonable best efforts to cause his Affiliates to vote, the affirmative vote of the holders of the shares of the class at any regular or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held Company called for the purpose of electing filling positions on the Board of Directors, or in any written consent executed in lieu of such a directormeeting, for the presence in person or by proxy respective nominees of the holders Kanders Representative and the Ivy Representative. Each director shall serve until the next meeting of a majority stockholders of the outstanding Company at which directors in each such director’s class are to be elected, or until a successor to such director shall have been selected as provided in this Agreement. (b) If a director nominated by the Kanders Representative or the Ivy Representative dies, resigns or is removed as a director and there is a resulting vacancy in the Board of Directors of the Company and the Kanders Representative or the Ivy Representative, as applicable, proposes a substitute candidate to the nominating committee of the Company’s Board of Directors to fill such vacancy and such substitute candidate is nominated by the nominating committee of the Company’s Board of Directors for election to the Board of Directors of the Company, each Stockholder agrees to vote all shares of the class or series entitled Stock owned by such Stockholder to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled substitute candidate nominated by the holders of any class Kanders Representative or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Ivy Representative, as applicable.

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three two (32) directors of the Corporation (each, a “Preferred Director” and, collectively, the “Preferred Directors”) and the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Section 3.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 3.2, a vacancy in any directorship filled by the holders of any class or classes or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or classes or series or by any remaining director or directors elected by the holders of such class or classes or series pursuant to this Subsection 4.2Section 3.2.

Election of Directors. The holders (a) In any election of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; providedCompany to elect the Common Directors, however, that, Stockholders holding shares of Common Stock shall each vote at any time there are any regular or special meeting of stockholders (or by written consent) all shares of Series A-1 Preferred Common Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock then owned by them (or as to which they then have voting power) to elect two (2) directors who shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action nominated by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote a majority of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the outstanding shares of Common Stock and held by the Key Holders who are at such time providing services to the Company or any of its subsidiaries as officers, consultants or employees. (b) In any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number election of directors of the Corporation by Company to elect the Series Seed Directors, Stockholders holding shares of Series Seed Stock shall each vote at any regular or special meeting of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person stockholders (or by proxy written consent) all shares of Series Seed Stock then owned by them (or as to which they then have voting power) to elect one (1) director nominated by Aleph, L.P and one (1) director nominated by Sequoia Capital Israel Venture V Holdings, L.P. (c) In any election of directors of the Company to elect the Series A Director, Stockholders holding shares of Series A Stock shall each vote at any regular or special meeting of stockholders (or by written consent) all shares of Series A Stock then owned by them (or as to which they then have voting power) to elect one (1) director nominated by XL Innovate Fund, L.P. or its affiliates. (d) In any election of directors of the Company to elect the Series B Director, Stockholders holding shares of Series B Stock shall each vote at any regular or special meeting of stockholders (or by written consent) all shares of Series B Stock then owned by them (or as to which they then have voting power) to elect one (1) director nominated by General Catalyst Group VIII, L.P. and General Catalyst Group VIII Supplemental, L.P. (together “General Catalyst Partners”) or their affiliates. (e) In any election of directors of the Company to elect the Series C Director, Stockholders holding shares of Series C Stock shall each vote at any regular or special meeting of stockholders (or by written consent) all shares of Series C Stock then owned by them (or as to which they then have voting power) to elect one (1) director nominated by SoftBank Group Capital Limited or its affiliates. (f) In addition, all Stockholders shall each vote at any regular or special meeting of stockholders (or by written consent) all shares then owned by them (or as to which they then have voting power) to elect up to two (2) directors nominated by the holders of a majority of the outstanding and issued shares of capital stock of the class or series entitled to elect such director shall constitute a quorum for Company. (g) In the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders absence of any class or series shall be filled only by vote or written consent in lieu of nomination from the persons with the right to nominate a meeting of director as specified above, the holders of such class or series or by any remaining director or directors elected previously nominated by the holders of such class or series pursuant persons and then serving shall be reelected if still eligible to this Subsection 4.2serve as provided herein.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and voting separately as a separate single class, shall be entitled to elect two (2) directors. The holders of the Series B Preferred Stock, voting separately as a single class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series C Preferred Stock), exclusively and voting together separately as a single class, on an as converted basis, shall be entitled to elect the balance one (1) director. The holders of the total number Series D Preferred Stock, voting separately as a single class, shall be entitled to elect two (2) directors. The holders of Common Stock, voting separately as a single class, shall be entitled to elect two (2) directors. Any vacancy among the directors to be elected by any class or series of Preferred Stock or Common Stock shall be filled, if by the Corporation by vote Board of a majority of such shares. At any meeting held for Directors, only at the purpose of electing a director, the presence in person or by proxy written direction of the holders of the class or series entitled to elect the directors as to whom a majority of vacancy has arisen, or, if by the outstanding shares shareholders, by the shareholders of the class or series entitled to elect such director directors. A meeting of shareholders to fill any such vacancy shall constitute a quorum for the purpose promptly be called upon request of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting not less than 25% of the holders shares of such class or series or by any remaining director or (as applicable) entitled to elect the directors as to whom a vacancy has arisen. In the event the Bylaws of the Company provide for more than ten (10) directors to be elected, such additional directors shall be elected by the holders of such class or series pursuant to this Subsection 4.2the Common Stock and the Preferred Stock, voting together as a single class.

Election of Directors. The holders (a) Each Stockholder (excluding the Xxxxx Stockholders) shall vote all of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the its shares of Common Stock and of any other class voting securities of the Company over which such Stockholder has voting control and shall take all other necessary or series of voting stock desirable actions within such Stockholder’s control (including the Preferred Stock), exclusively and voting together whether in such Stockholder’s capacity as a single classstockholder, on an as converted basisdirector, shall be entitled to elect the balance member of a board committee or officer of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a directorCompany or otherwise, the presence and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or bylaws), and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board, stockholder meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws), so that: (i) the authorized number of directors on the Board shall be established by the Xxxxx Stockholders; (ii) G. Xxxxxx Xxxxx shall be elected to the Board for so long as he remains the chief executive officer of Xxxxx’x and, following such time as G. Xxxxxx Xxxxx ceases to be the chief executive officer of Xxxxx’x, the then current chief executive officer of Xxxxx’x shall be elected to the Board; (iii) the remainder of the directors, which will be designated by KIA VIII, shall be elected to the Board; (iv) the composition of the board of directors of each of the Company’s subsidiaries (a “Subsidiary Board”) shall be determined only upon the approval of the Board; (v) any committees of the Board or a Subsidiary Board shall be created only upon the approval of the Board; (vi) the removal from the Board or a Subsidiary Board (with or without cause) of any representative designated pursuant hereto by the Xxxxx Stockholders shall be at the Xxxxx Stockholders’ written request, but only upon such written request and under no other circumstances; and (vii) in the event that any representative designated pursuant hereto by KIA VIII for any reason ceases to serve as a member of the Board or a Subsidiary Board during his or her term of office, the resulting vacancy on the Board or the Subsidiary Board shall be filled by a representative designated by KIA VIII. (b) If KIA VIII fails to designate a representative to fill a directorship pursuant to the terms of this Section 8, the election of a person to such directorship shall be accomplished in accordance with the Company’s by-laws and applicable law. (c) In order to secure each Management Stockholder’s obligation to vote its shares of Common Stock and other voting securities of the Company in accordance with the provisions of Section 8 hereof, each Management Stockholder hereby appoints KIA VIII as its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of such Person’s shares of Common Stock and other voting securities of the Company for the election and removal of directors and all such other matters as expressly provided for in this Section 8. KIA VIII may exercise the irrevocable proxy granted to it hereunder at any time any Management Stockholder fails to comply with the provisions of this Section 8. The proxies and powers granted by each Management Stockholder pursuant to this paragraph (c) are coupled with an interest and are given to secure the performance of the obligations under this Agreement. Such proxies and powers will be irrevocable until the termination of this Agreement and will survive the death, incompetency and disability of each Management Stockholder and the holders of a majority each of the outstanding his or her respective shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Common Stock.

Election of Directors. The holders (a) From and after the Effective Time, Stockholder shall have the right, but not the obligation, to designate each director to be nominated, elected or appointed to the Board of record Directors of the shares Company (each, a “Stockholder Designee” and collectively, the “Stockholder Designees”), regardless of Preferred Stock(i) whether such Stockholder Designee is to be elected to the Board of Directors of the Company (the “Board”) at a meeting of stockholders called for the purpose of electing directors (or by consent in lieu of meeting) or appointed by the Board in order to fill any vacancy created by the departure of any director or increase in the authorized number of members of the Board or (ii) the size of the Board. (b) For so long as Stockholder has the right under Section 1(a) to designate Stockholder Designees, exclusively the Company shall take all Necessary Action to cause each Stockholder Designee to be so nominated, elected or appointed to the Board, including (as applicable) (i) submitting each Stockholder Designee to the Company’s stockholders as the Company’s nominee for election at a meeting of the Company’s stockholders, (ii) recommending that such Stockholder Designee be elected by the Company’s stockholders and (iii) soliciting proxies or consents in favor thereof. In the event that any Stockholder Designee shall fail to be elected or appointed to the Board pursuant to the preceding sentence, the Company shall (at the written request of Stockholder) take all Necessary Action to cause an alternative Stockholder Designee to be elected or appointed to the Board, as soon as possible. For so long as Stockholder has the right to designate Stockholder Designees pursuant to Section 1(a), Stockholder may, at any time and from time to time, designate a separate classreplacement director therefor, who shall be entitled to elect three elected or appointed in accordance with Section 1 of this Agreement and who shall be deemed a “Stockholder Designee” for purposes of this Agreement. (3c) directors The parties hereto acknowledge and agree that the members of the CorporationBoard are subject to removal pursuant to the applicable provisions of the Delaware General Corporation law, the Certificate of Incorporation of the Company, and the bylaws of the Company (as may be amended and/or amended and restated from time to time in accordance with the terms thereof, the “Company Bylaws”); provided, however, that, at that the Company shall refrain from taking any time there are actions to cause any shares Stockholder Designee to be removed without cause except with the written consent of Series A-1 Preferred Stock issued Stockholder. (d) Sxxxxxxxxxx hxxxxx agrees to vote in favor of and outstanding, to consent to the Stockholder Designees in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors connection with each vote taken or written consent executed in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number election of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Board.

Election of Directors. The holders of record Majority Holders of the shares of Series F Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) four directors of the Corporation (the “Preferred Series F Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock Holders entitled to elect such director or directors, given either at a special meeting of such stockholders shareholders duly called for that purpose or pursuant to a written consent of stockholdersshareholders. If the holders of shares of any class or series of stock Holders fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Section 5(c), then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock Holders elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders shareholders of the Corporation other than by the stockholders of the Corporation that are Majority Holders entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series F Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 5(c), a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Section 5(c).

Election of Directors. The holders of record of the shares of Series 1 Preferred Stock, exclusively and as a separate class, shall be entitled to elect three four (34) directors of the Corporation; provided, however, that, at any time there are any shares of Corporation (the “Series A-1 Preferred Stock issued 1 Directors”) and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Common Stock shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockCorporation. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series 1 Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series 1 Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, 3.2. a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders of record of the shares of Series A-1 Preferred Stock, exclusively and as a separate class, shall be entitled to elect three one (31) director of the Corporation (the “Preferred Director”) and the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect six (6) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors Director may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Series A-1 Preferred Stock without a separate action by the holders of Series A-1 Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series A-1 Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Section 3.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series A-1 Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A-1 Preferred StockStock on an as converted basis), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 3.2, a vacancy in any directorship filled by the holders of any class or classes or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or classes or series or by any remaining director or directors elected by the holders of such class or classes or series pursuant to this Subsection 4.2Section 3.2. The rights of the holders of the Series A-1 Preferred Stock under the first sentence of this Section 3.2 shall terminate on the first date following the date the first share of Series A Preferred Stock was issued (the “Original Issue Date”) on which there are issued and outstanding less than 3,300,000, in the aggregate, of any combination of (i) shares of Series A Preferred Stock, and (ii) shares of Common Stock issued upon any conversion of Series A Preferred Stock (in each case, subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Series A Preferred Stock).

Election of Directors. (1) The holders of record of the shares of Preferred Common Stock, exclusively and voting as a separate single class, shall be entitled to elect three two (32) directors members of the Corporation; provided, however, that, ’s Board of Directors at any time there are any shares each meeting or pursuant to each written consent of the Corporation’s holders of Common Stock for the election of directors (the “Common Directors”). The holders of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 A Preferred Stock shall be entitled to elect three two (32) directors members of the Corporation Corporation’s Board of Directors at each meeting or pursuant to each written consent of the Corporation’s holders of Series A Preferred Stock for the election of directors (the “Series A Directors”). The holders of Series B Preferred Stock shall be entitled to elect one (1) member of the Corporation’s Board of Directors at each meeting or pursuant to each written consent of the Corporation’s holders of Series B Preferred Stock for the election of directors (the “Series B Director,”). The holders of Series E Preferred Stock shall be entitled to elect one (1) member of the Corporation’s Board of Directors at each meeting or pursuant to each written consent of the Corporation’s holders of Series E Preferred Stock for the election of directors (the “Series E Director,” and together with the Series A Directors and the Series B Director, the “Preferred Directors”); provided. The holders of a majority of the then outstanding Preferred Stock and Common Stock, furthervoting together as a single class and on an as-converted basis, that for administrative convenience, shall be entitled to elect the initial Preferred Directors may also be appointed by remaining members of the Corporation’s Board of Directors in connection with the approval at each meeting or pursuant to each written consent of the initial issuance Corporation’s stockholders for the election of Preferred Stock without a separate action by directors. (2) Whenever the holders of Preferred Stock. any class or classes of stock or series thereof are entitled to elect one or more directors by Section 4.5(C)(1), vacancies and newly created directorships of such class or classes or series may be filled by at least a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected, or, if there is no sole remaining director then in office, by the affirmative vote of the holders of at least a majority of the shares of that class or classes or series. (3) Any director who was elected as provided in the preceding sentences by a specified class or classes of stock or series thereof may be removed during his or her term of office, either for or without cause cause, by, and only by, the affirmative vote of the holders of at least a majority of the shares of the class or series classes of stock or series thereof that are entitled to elect such director or directors, director. Such vote may be given either at a special meeting of such stockholders duly called or by an action by written consent for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2purpose.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation, the holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation, and the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series A Preferred Stock, Series B Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, each voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series A Preferred Stock, Series B Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock, Series B Preferred Stock and Series B-1 Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2. The rights of the holders of the Series A Preferred Stock under the first sentence of this Subsection 3.2 shall terminate on the first date following the Original Issue Date (as defined below) on which (i) there are issued and outstanding less than two million (2,000,000) shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Series A Preferred Stock) or (ii) the issued and outstanding Series A Preferred Stock represents less than ten percent (10%) of the outstanding capital stock of the Corporation on a fully diluted basis. The rights of the holders of the Series B Preferred Stock under the first sentence of this Subsection 3.2 shall terminate on the first date following the Original Issue Date (as defined below) on which (i) there are issued and outstanding less than 2,000,000 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Series B Preferred Stock) or (ii) the issued and outstanding Series B Preferred Stock represents less than ten percent (10%) of the outstanding capital stock of the Corporation on a fully diluted basis.

Election of Directors. The At any time at which stockholders of the Company will have the right to, or will vote for or consent in writing to, the election of directors of the Company, then, and in each such event, the Investors to the extent entitled to by law or the Company's certificate of incorporation shall vote (or, if applicable, consent with respect to) all shares of capital stock or voting securities of the Company presently owned or hereafter acquired by them (whether owned of record or over which any such person exercises voting control) in favor of the following actions: (i) to cause and maintain the election to the Board of Directors of four designated representatives (the "VantagePoint Directors") of VantagePoint Venture Partners III (Q), L.P., VantagePoint Venture Partners III, L.P., VantagePoint Communications Partners, L.P. and VantagePoint Venture Partners 1996, L.P. (collectively, "VantagePoint"), which VantagePoint Directors shall be four of the directors elected by holders of record of the shares of Series X Preferred Stock, exclusively and voting as a separate classseries, shall be entitled to elect three (3) directors of in accordance with the CorporationCharter; provided, however, thatthat if the Board of Directors consists of ten or fewer directors, at any time there are any shares VantagePoint shall only have the right to designate three VantagePoint Directors and the fourth position shall be filled by an Independent Director in accordance with Section 1.1(b)(v) below, which Independent Director shall be one of the directors elected by holders of the Series A-1 X Preferred Stock issued and outstandingStock, voting as a separate series, in lieu accordance with the Charter; (ii) to cause and maintain the election to the Board of Directors of one designated representative of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of least a majority of the outstanding shares of Series Y Preferred Stock (the class or series entitled "Series Y Director"), which Series Y Director shall be one of the directors elected by holders of the Series X Preferred Stock, voting as a separate series, in accordance with the Charter; (iii) to elect cause and maintain the election to the Board of Directors of the Company's Chief Executive Officer (the "CEO Director"), at and after such director shall constitute a quorum for the purpose of electing time as such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled Chief Executive Officer is appointed by the holders Board of any class or series Directors, which CEO Director shall be filled only elected by vote or written consent in lieu of a meeting all of the holders of the Company's capital stock entitled to vote for the election of directors in accordance with the Charter; (iv) to cause and maintain the election to the Board of Directors: (A) for so long as the Designating Warrant Investors beneficially own outstanding Notes with an aggregate principal amount of at least $10,000,000 or at least 52,631,579 shares of Common Stock issued or issuable upon exercise of the Investor Warrants, two designated representatives of the Designating Warrant Investors beneficially owning a majority of the shares of Common Stock issued or issuable upon exercise of the Investor Warrants owned by such class Designating Warrant Investors (or, if the Designating Warrant Investors beneficially own less than 52,631,579 shares of Common Stock issued or series issuable upon exercise of the Investor Warrants, the Designating Warrant Investors holding at least a majority of the aggregate principal amount owing under the Notes held by the Designating Warrant Investors), who shall initially be Glen MacMullin and Roger Ehrenberg; and (B) if the Designating Warrxxx Xxxxxxxxx are nx xxxxxx xxxxxxed to designate directors pursuant to clause (A) above, for so long as the Designating Warrant Investors beneficially own outstanding Notes with an aggregate principal amount of at least $5,000,000 or at least 26,315,790 shares of Common Stock issued or issuable upon exercise of the Investor Warrants, one designated representative of the Designating Warrant Investors beneficially owning a majority of the shares of Common Stock issued or issuable upon exercise of the Investor Warrants owned by any remaining director such Designating Warrant Investors (or, if the Designating Warrant Investors beneficially own less than 26,315,790 shares of Common Stock issued or issuable upon exercise of the Investor Warrants, the Designating Warrant Investors holding at least a majority of the aggregate principal amount owing under the Notes held by the Designating Warrant Investors) (the designated representatives of the Designating Warrant Investors pursuant to this clause (iv), the "Warrant Investor Directors"), which Warrant Investor Directors shall be elected by (a) in the event that the holders of Series X Preferred Stock are entitled to elect five or more directors to the Company's Board of Directors, one of the Warrant Investor Directors shall be one of the directors elected by the holders of such class the Series X Preferred Stock, voting as a separate series, in accordance with the Charter, and (b) in the event that the holders of Series X Preferred Stock are entitled to elect four or series fewer directors to the Company's Board of Directors, none of the Warrant Investor Directors shall be directors elected by the holders of the Series X Preferred Stock, provided, that any Warrant Investor Directors not elected by the holders of the Series X Preferred Stock pursuant to this Subsection 4.2subsection 1.1(b)(iv) shall be elected by all of the holders of the Company's capital stock entitled to vote for the election of directors in accordance with the Charter. Notwithstanding the foregoing, if the Purchase Agreement is terminated pursuant to Section 1.5 thereof and the Company pays the Termination Amount (as defined therein) in full, then the Designated Warrant Investors shall cause the Warrant Investor Directors to resign immediately and this subsection 1.1(b)(iv) shall thereupon become null and void; (v) to cause and maintain the election to the Board of Directors of at least three independent directors (and any other directors who are not required to be elected (1) by holders of the Series X Preferred Stock, voting as a separate series, in accordance with the Charter or (2) by another provision of this Section 1.1, shall be independent directors), who shall be nominated by the Nominating Committee (as defined below) and none of whom shall be an affiliate of any Series X Investor, Series Y Investor or Warrant Investor (the "Independent Directors"), which Independent Directors shall be elected by all of the holders of the Company's capital stock entitled to vote for the election of directors in accordance with the Charter except as provided pursuant to Section 1.1(b)(i) above.

Election of Directors. The holders (a) From and after the Effective Time, Stockholder shall have the right, but not the obligation, to designate each director to be nominated, elected or appointed to the Board of record Directors of the shares Company (each, a “Stockholder Designee” and collectively, the “Stockholder Designees”), regardless of Preferred Stock(i) whether such Stockholder Designee is to be elected to the Board of Directors of the Company (the “Board”) at a meeting of stockholders called for the purpose of electing directors (or by consent in lieu of meeting) or appointed by the Board in order to fill any vacancy created by the departure of any director or increase in the authorized number of members of the Board or (ii) the size of the Board. (b) For so long as Stockholder has the right under Section 1(a) to designate Stockholder Designees, exclusively the Company shall take all Necessary Action to cause each Stockholder Designee to be so nominated, elected or appointed to the Board, including (as applicable) (i) submitting each Stockholder Designee to the Company’s stockholders as the Company’s nominee for election at a meeting of the Company’s stockholders, (ii) recommending that such Stockholder Designee be elected by the Company’s stockholders and (iii) soliciting proxies or consents in favor thereof. In the event that any Stockholder Designee shall fail to be elected or appointed to the Board pursuant to the preceding sentence, the Company shall (at the written request of Stockholder) take all Necessary Action to cause an alternative Stockholder Designee to be elected or appointed to the Board, as soon as possible. For so long as Stockholder has the right to designate Stockholder Designees pursuant to Section 1(a), Stockholder may, at any time and from time to time, designate a separate classreplacement director therefor, who shall be entitled to elect three elected or appointed in accordance with Section 1 of this Agreement and who shall be deemed a “Stockholder Designee” for purposes of this Agreement. (3c) directors The parties hereto acknowledge and agree that the members of the CorporationBoard are subject to removal pursuant to the applicable provisions of the General Corporation Law of the State of Delaware, the Certificate of Incorporation of the Company (as may be amended and/or amended and restated from time to time in accordance with the terms thereof, the “Company Certificate of Incorporation”), and the bylaws of the Company (as may be amended and/or amended and restated from time to time in accordance with the terms thereof, the “Company Bylaws”); provided, however, that, at that the Company shall refrain from taking any time there are actions to cause any shares Stockholder Designee to be removed without cause except with the written consent of Series A-1 Preferred Stock issued Stockholder. (d) Xxxxxxxxxxx xxxxxx agrees to vote in favor of and outstanding, to consent to the Stockholder Designees in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors connection with each vote taken or written consent executed in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number election of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Board.

Election of Directors. The holders At each annual meeting of record Common Members, successors to the class of Directors whose term expires at that annual meeting shall be elected for a three (3)-year term and until their successors are duly elected or appointed and qualified. Except for the Issued Preferred Shares Nonpayment Directors, if the number of Directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible, and any additional Director of any class elected to fill a vacancy resulting from an increase in such class or from the death, resignation or removal from office of a Director or other cause shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of Directors shorten the term of any incumbent Director. Directors need not be Members. Except as otherwise provided by the applicable Issued Preferred Shares Designation with respect to the Issued Preferred Shares Nonpayment Directors, the Directors shall be elected at the annual meeting of Common Members (except as provided in Section 5.6), and each Director elected shall hold office until the third succeeding meeting next after such Director’s election and until such Director’s successor is duly elected and qualified, or until such Director’s death or until such Director resigns or is removed in the manner hereinafter provided. Except as otherwise provided by the applicable Issued Preferred Shares Designation with respect to the Issued Preferred Shares Nonpayment Directors, Directors shall be elected by a plurality of the shares votes of Preferred StockOutstanding Voting Shares present in person or represented by proxy and entitled to vote on the election of Directors at any annual or special meeting of Members. The Board of Directors shall present to the Members holding Outstanding Voting Shares nominations of candidates for election to the Board of Directors (or recommend the election of such candidates as nominated by others) such that, exclusively and shall take such other corporate actions as may be reasonably required to provide that, to the best knowledge of the Board of Directors, if such candidates are elected by the Members holding Outstanding Voting Shares, at least a majority of the members of the Board of Directors shall be Independent Directors. The Board of Directors shall only elect any Person to fill a vacancy on the Board of Directors if, to the best knowledge of the Board of Directors, after such person’s election at least a majority of the members of the Board of Directors shall be Independent Directors. The foregoing provisions of this paragraph shall not cause a Director who, upon commencing his or her service as a separate class, shall be entitled to elect three (3) directors member of the Corporation; provided, however, that, at any time there are any shares Board of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed was determined by the Board of Directors to be an Independent Director but did not in connection with fact qualify as such, or who by reason of any change in circumstances ceases to qualify as an Independent Director, from serving the approval remainder of the initial issuance term as a Director for which he or she was selected. Notwithstanding the foregoing provisions of Preferred Stock without a separate this paragraph, no action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders Board of Directors shall be invalid by reason of the shares of the class or series of stock entitled to elect such director or directors, given either failure at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares members of the class or series entitled Board of Directors to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Independent Directors.

Election of Directors. The holders of record (a) Following the Closing Date, the QPhoton Designator shall have the right, but not the obligation, to designate, and the individuals nominated for election as Directors by or at the direction of the shares Board or a duly-authorized committee thereof shall include, a number of Preferred Stockindividuals such that, exclusively upon the election of each such individual, and each other individual nominated by or at the direction of the Board or a duly authorized committee of the Board, as a separate classDirector and taking into account any Director continuing to serve without the need for re-election, shall the number of QPhoton Designees (as defined below) serving as Directors of the Company will be entitled equal to elect three (3) directors (in each case, each such person a “QPhoton Designee”). (b) If at any time the QPhoton Designator has designated fewer than the total number of individuals that it is then entitled to designate pursuant to Section 2.1(a) hereof, the QPhoton Designator shall have the right, at any time and from time to time, to designate such additional individuals which it is entitled to so designate, in which case, any individuals nominated by or at the direction of the CorporationBoard or any duly-authorized committee thereof for election as Directors to fill any vacancy on the Board shall include such designees, and the Company shall use its best efforts to (i) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (ii) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. (c) Following the Closing Date, the Company Designator shall have the right, but not the obligation, to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, a number of individuals such that, upon the election of each such individual, and each other individual nominated by or at the direction of the Board or a duly authorized committee of the Board, as a Director and taking into account any Director continuing to serve without the need for re-election, the number of Company Designees (as defined below) serving as Directors of the Company will be equal to four (4) (in each case, each such person a “Company Designee”). (d) If at any time the Company Designator has designated fewer than the total number of individuals that it is then entitled to designate pursuant to Section 2.1(c) hereof, the Company Designator shall have the right, at any time and from time to time, to designate such additional individuals which it is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy on the Board shall include such designees, and the Company shall use its best efforts to (i) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (ii) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. (e) Directors are subject to removal pursuant to the applicable provisions of the by-laws of the Company, as may be amended and/or amended and restated from time to time; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, for as long as this Agreement remains in lieu of the holders of record of the shares of Preferred Stockeffect, the holders of record of shares of Series A-1 Preferred Stock parties shall be entitled refrain from taking any actions to elect three cause (3i) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may QPhoton Designees to be removed without cause byexcept with the consent of the QPhoton Designator and (ii) the Company Designees to be removed without cause except with the consent of the Company Designator. (f) In the event that a vacancy is created at any time by death, and only bydisability, retirement, removal (with or without cause), disqualification, resignation or otherwise with respect to the QPhoton Designees and/or Company Designees, the affirmative vote Company shall use its best efforts to cause such vacancy to be filled, as soon as possible, by a new designee of the holders QPhoton Designator or the Company Designator, as the case may be. (g) The Company shall, to the fullest extent permitted by law, include in the slate of nominees recommended by the shares of the class or series of stock entitled to elect such director or directors, given either Board at a special any meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a directordirectors (or consent in lieu of meeting), the presence persons designated pursuant to this Section 2.1 and use its best efforts to cause the election of each such designee to the Board, including nominating each such individual to be elected as a Director as provided herein, recommending such individual’s election and soliciting proxies or consents in person or by proxy favor thereof. In the event that any Designee shall fail to be elected to the Board at any meeting of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum stockholders called for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class directors (or series shall be filled only by vote or written consent in lieu of meeting), the Company shall use its best efforts to cause such Designee (or a meeting new designee of the holders applicable Designator) to be elected to the Board, as soon as possible, and the Company shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same, including, without limitation, actions to effect an increase in the Total Number of such class Directors. (h) Each Stockholder hereby agrees to vote in favor of and to consent to the Designees in connection with each vote taken or series written consent executed in connection with the election of Directors to the Board, and each Stockholder agrees not to seek to remove or by any remaining director or directors elected by replace the holders of such class or series pursuant to this Subsection 4.2Designees except in accordance with the terms hereof.

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three two (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (32) directors of the Corporation (the “Preferred Directors”)) and the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation; provided, furtherhowever, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Section 3.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 3.2, a vacancy in any directorship filled by the holders of any class or classes or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or classes or series or by any remaining director or directors elected by the holders of such class or classes or series pursuant to this Subsection 4.2Section 3.2.

Election of Directors. At each succeeding annual meeting of Members beginning in 2016, successors to the class of Directors whose term expires at that annual meeting shall be elected for a three (3)-year term and until their successors are duly elected or appointed and qualified. If the number of Directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible, and any additional Director of any class elected to fill a vacancy resulting from an increase in such class or from the death, resignation or removal from office of a Director or other cause shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of Directors shorten the term of any incumbent Director. Directors need not be Members. The holders Directors shall be elected at the annual meeting of record Members, except as provided in Section 5.6, and each Director elected shall hold office until the third succeeding meeting next after such Director’s election and until such Director’s successor is duly elected and qualified, or until such Director’s death or until such Director resigns or is removed in the manner hereinafter provided. Directors shall be elected by a plurality of the shares votes of Preferred StockOutstanding Voting Shares present in person or represented by proxy and entitled to vote on the election of Directors at any annual or special meeting of Members. The Board of Directors shall present to the Members nominations of candidates for election to the Board of Directors (or recommend the election of such candidates as nominated by others) such that, exclusively and shall take such other corporate actions as may be reasonably required to provide that, to the best knowledge of the Board of Directors, if such candidates are elected by the Members, at least a majority of the members of the Board of Directors shall be Independent Directors. The Board of Directors shall only elect any Person to fill a vacancy on the Board of Directors if, to the best knowledge of the Board of Directors, after such person’s election at least a majority of the members of the Board of Directors shall be Independent Directors. The foregoing provisions of this paragraph shall not cause a Director who, upon commencing his or her service as a separate class, shall be entitled to elect three (3) directors member of the Corporation; provided, however, that, at any time there are any shares Board of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed was determined by the Board of Directors to be an Independent Director but did not in connection with fact qualify as such, or who by reason of any change in circumstances ceases to qualify as an Independent Director, from serving the approval remainder of the initial issuance term as a Director for which he or she was selected. Notwithstanding the foregoing provisions of Preferred Stock without a separate this paragraph, no action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders Board of Directors shall be invalid by reason of the shares of the class or series of stock entitled to elect such director or directors, given either failure at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares members of the class or series entitled Board of Directors to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Independent Directors.

Election of Directors. 3.1 The Board of Directors of the Corporation (the “Board”) shall consist of twelve (12) members or such other number as the Board shall determine from time to time by written notice delivered to the Secretary of the Corporation, subject to Sections 3.2 and 3.3 hereof; provided that the Board may grant the right to designate one or more members of the Board to any third parties, including any investors in the capital stock of the Corporation. 3.2 The holders of record of the outstanding shares of Preferred Class A Common Stock, exclusively and voting separately as a separate class, shall be entitled to elect three two (32) directors (the “Class A Common Directors”) so long as each of Xxxxxxxxx Xxxxxx (“Xxxxxx”) and Xxxxx Xxxx (“Rice”) (each of Xxxxxx and Xxxx, a “Founder” and together, the “Founders”) is a Qualifying Founder, and in such event each Founder shall be entitled to designate one of the Corporation; providedClass A Common Directors. If one (but not both) of the Founders ceases to be a Qualifying Founder, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of then the holders of record of the outstanding shares of Preferred Class A Common Stock, the holders of record of shares of Series A-1 Preferred Stock voting separately as a class, only shall be entitled to elect three one (31) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause byClass A Common Director, and only by, in such event the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, Qualifying Founder shall be entitled to elect designate the balance of the total number of directors of the Corporation by vote of a majority of such sharessole Class A Common Director. At any meeting held for the purpose of electing a directorIf both Founders cease to be Qualifying Founders, the presence in person or by proxy of then the holders of a majority of the outstanding shares of the class or series Class A Common Stock shall not be entitled to elect such any directors. If a Founder ceases to be a Qualifying Founder, she may be removed as a director by written notice to that effect delivered by Equinox to the Secretary of the Corporation. A “Qualifying Founder” shall constitute mean a quorum for Founder that, as of the purpose date of electing such director. Except determination, (i) is then serving as otherwise provided the Chief Executive Officer or Co-Chief Executive Officer of the Corporation, or (ii) then holds, together with her applicable Founder Group, at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in this Subsection 4.2, a vacancy in any directorship filled by the holders event of any class stock dividend, stock split, combination or series shall be filled only by vote or written consent in lieu of a meeting of other similar recapitalization with respect to the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Class A Common Stock).

Election of Directors. The holders (a) Each Management Stockholder shall vote all of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the its shares of Common Stock and of any other class voting securities of the Company over which such Management Stockholder has voting control and shall take all other necessary or series of voting stock desirable actions within such Management Stockholder’s control (including the Preferred Stock), exclusively and voting together whether in such Management Stockholder’s capacity as a single classstockholder, on an as converted basisdirector, shall be entitled to elect the balance member of a Board committee or officer of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a directorCompany or otherwise, the presence and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws), and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special Board or stockholder meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws), so that: (i) the authorized number of directors on the Board shall be six; (ii) all of the directors, which will be designated by DLI LLC (and which DLI LLC agrees shall initially include at least one independent director and three members of the Company’s management), shall be elected to the Board; (iii) the composition of the board of directors of each of the Company’s Subsidiaries (a “Subsidiary Board”) shall be determined only upon the approval of the Board; (iv) any committees of the Board or a Subsidiary Board shall be created only upon the approval of the Board; and (v) the removal from the Board or a Subsidiary Board or a committee of the Board or a Subsidiary Board (with or without cause) of any representative designated pursuant hereto by DLI LLC shall be at DLI LLC’s written request, as the case may be, but only upon such written request and under no other circumstances. (b) If DLI LLC fails to designate a representative to fill a directorship pursuant to the terms of this Section 7 after 30 days following a notice by the Company of such party’s failure to designate a representative have passed, the election of a person to such directorship shall be accomplished in accordance with the Company’s by-laws and applicable law. (c) Approval of at least one designee of DLI LLC (other than any Company management designee or any independent director designated by DLI LLC) shall be required in connection with any action of the Board. (d) In order to secure each Management Stockholder’s obligation to vote its shares of Common Stock and other voting securities of the Company in accordance with the provisions of this Section 7, each Management Stockholder hereby appoints DLI LLC as its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of such Person’s shares of Common Stock and other voting securities of the Company for the election and removal of directors and all such other matters as expressly provided for in this Section 7. DLI LLC may exercise the irrevocable proxy granted to it hereunder at any time any Management Stockholder fails to comply with the provisions of this Section 7. The proxies and powers granted by each Management Stockholder pursuant to this paragraph (d) are coupled with an interest and are given to secure the performance of the obligations under this Agreement. Such proxies and powers will be irrevocable until the termination of this Agreement, and will survive the death, incompetency and disability of each Management Stockholder and the holders of a majority each of the outstanding his or her respective shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Common Stock.

Election of Directors. The holders of record So long as the Xxxxxxx Holders hold at least thirty-five percent (35%) of the originally issued shares of Series A Preferred Stock, exclusively and the Xxxxxxx Holders (or if no such shares are held by a Xxxxxxx Holder, any transferee of shares of Series A Preferred Stock consented to by the Corporation (which consent shall not be unreasonably withheld) (the "Permitted Preferred Transferee)), shall be entitled, but not required, to elect up to two (2) directors of the Corporation. So long as the Xxxxxxx Holders hold at least twenty percent (20%), but less than thirty-five (35%) percent, of the originally issued shares of Series A Preferred Stock, the Xxxxxxx Holders (or if no such shares are held by a Xxxxxxx Holder, any Permitted Preferred Transferee), shall be entitled, but not required, to elect one (1) director of the Corporation. A director elected in accordance with this Section 4 is referred to as a separate class"Preferred Director". Holders of at least a majority of the outstanding shares of Series A Preferred Stock shall exercise their right, as described above, to elect each Preferred Director by written notice to the Corporation of the identity of the person nominated to serve as Preferred Director, and requesting the Corporation to call a meeting of the holders of Series A Preferred Stock to act upon such nomination. Each such nomination shall be subject to approval by the Corporation, such approval not to be unreasonably withheld. Promptly upon such request, the holders of Series A Preferred Stock, consenting or voting as a class (as the case may be), shall be entitled to elect three (3) directors of the Corporation; provided, however, that, a Preferred Director at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, meeting (or in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting thereof) held for the purpose of electing directors until such time as holders of at least a directormajority of the outstanding shares of Series A Preferred Stock shall notify the Corporation in writing that they no longer wish to exercise their right to elect a Preferred Director. At any meeting (or in a written consent in lieu thereof) held for the purpose of electing directors, (x) the presence in person or by proxy (or the written consent) of the holders representing a majority of the shares of Series A Preferred Stock then outstanding shall constitute a quorum of such class for the election of a Preferred Director; and (y) the absence of the presence in person or by proxy (or written consent) of the holders representing less than a majority of the shares of Common Stock then outstanding shall not affect the right of a quorum of holders of Series A Preferred Stock to elect a Preferred Director. Any Preferred Director may be removed with or without cause by, and shall not be removed except by, the holders representing a majority of the shares of Series A Preferred Stock then outstanding, present in person or by proxy and voting at a meeting of stockholders, or of the holders of Series A Preferred Stock called for that purpose, or by written consent signed by the holders representing a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such directorSeries A Preferred Stock then outstanding. Except as otherwise provided in this Subsection 4.2, a A vacancy in any the directorship filled to be held by the holders of any class or series a Preferred Director shall be filled only by vote or written consent in lieu of the holders of the Series A Preferred Stock as provided above. Unless otherwise required by the laws of the State of New York, any holder or holders of at least a majority of the outstanding shares of Series A Preferred Stock shall have the right to call a meeting of the holders of such class or series or by any remaining director or directors elected by Series A Preferred Stock of the holders Corporation for the purpose of such class or series pursuant to this Subsection 4.2electing a Preferred Director and filling vacancies of Preferred Directors.

Election of Directors. As of the date hereof, the Company's Board of Directors (the "Board of Directors") shall be four (4) members. The parties agree that the number of directors on the Board of Directors shall be increased to five (5) upon the selection of a Chief Executive Officer. On all matters relating to the election of directors of the Company, each Stockholder agrees to vote all Stock held by it (or the holder thereof shall consent pursuant to an action by written consent of the holders of record capital stock of the shares Company) so as to elect members of Preferred the Company's Board of Directors as follows: (a) At each election of directors, so long as a Stockholder holds at least ten percent (10%) of the Stock, exclusively and as a separate class, that Stockholder shall be entitled to designate and elect three one (31) directors member of the Corporation; providedCompany's Board of Directors. At each election of directors, however, that, so long as a Stockholder holds at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu least forty percent (40%) of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock that Stockholder shall be entitled to designate and elect three two (32) directors members of the Corporation (Company's Board of Directors. Should a director nominated by a Stockholder resign, become deceased, incapacitated or otherwise be unable or unwilling to perform his or her duties, or perform in a manner contrary to that desired by that Stockholder which nominated such person, such Stockholder shall be entitled to replace such director and designate a successor thereto to serve for the “Preferred Directors”balance of such director's term, effective upon the giving of notice to the Company and to the other Stockholder. Any vote taken to remove any director elected pursuant to this Section 4.2(a); provided, furtheror to fill any vacancy created by the resignation or death of a director elected pursuant to this Section 4.2(a), that for administrative convenience, the initial Preferred Directors may shall also be appointed by subject to the provisions of this Section 4.2(a). (b) The Stockholders shall designate and elect a fifth member of the Board of Directors in connection with who shall also be the approval Chief Executive Officer of the initial issuance of Preferred Stock without a separate action Company. Any vote taken to remove any director elected pursuant to this Section 4.2(b), or to fill any vacancy created by the holders resignation or death of Preferred Stock. Any a director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directorsthis Section 4.2(b), voting exclusively and as a separate class, pursuant shall also be subject to the first sentence provisions of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and Section 4.2(b). (c) Each Stockholder agrees that no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2other Stockholder shall be removed except for cause.

Election of Directors. The holders provisions of record this Section 2.1 shall apply from and after the time that the series of Class A Common Stock other than Class A-1 Common Stock of the Company automatically convert into shares of Preferred StockClass A-1 Common Stock of the Company pursuant to the terms of the certificate of incorporation of the Company. Each holder of Shares hereby agrees to cast all votes to which such holder is entitled in respect of the Shares, exclusively and as a separate classwhether at any annual or special meeting, shall be entitled by written consent or otherwise, to elect three (3) fix the number of members of the board of directors of the CorporationCompany (the “Board”) at eight or such higher number as may be specified from time to time by the Majority Investors. The Board shall be divided into classes, and in the event that the number of members of the Board is eight, there shall be (i) three Bain Directors, (ii) three THL Directors, (iii) two Blackstone Directors, and (iv) no Other Directors (in each case where the number of directors is determined without regard to any failure of any holder of Investors Shares to designate a member of the Board of Directors), which shall in each case be elected as set forth in this Section 2.1 below. In the event that the number of members of the Board is greater than eight, at any time the number of Bain Directors, THL Directors, Blackstone Directors and Other Directors, respectively, shall each be such number as shall have been specified as of such time by the Majority Investors, in each case elected as set forth in this Section 2.1 below; provided, however, thatthat (A) the number of Bain Directors shall equal the number of THL Directors, at any time there are any shares (B) the number of Series A-1 Preferred Stock issued and outstanding, in lieu Blackstone Directors shall not be less than twenty percent of the holders of record aggregate number of the shares Bain Directors plus the THL Directors plus the Blackstone Directors, and (C) the number of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock Other Directors shall be entitled any number specified by the Majority Investors (in each case where the number of directors is determined without regard to elect three (3) directors any failure of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by any holder of Investor Shares to designate a member of the Board of Directors). Each holder of Shares hereby agrees to cast all votes to which such holder is entitled with respect to such Shares, whether at any annual or special meeting by written consent or otherwise, so as to elect as the Company’s directors: (A) one director designated by Xxxx Capital VII Coinvest Fund, LLC, (B) such other directors designated by the Majority Bain Investors as the remaining Bain Directors, (C) one director designated by Xxxxxx X. Xxx Equity Fund V, L.P., (D) one director designated by Xxxxxx X. Xxx Parallel Fund V, L.P., (E) one director designated by Xxxxxx X. Xxx Equity (Cayman) Fund V, L.P., (F) such other directors designated by the Majority THL Investors as the remaining THL Directors, (G) one director designated by Blackstone Capital Partners III Merchant Banking Fund L.P., (H) such other directors designated by the Blackstone Majority Investors as the remaining Blackstone Directors, and (I) the Other Directors designated by the Majority Investors. Each holder of Shares hereby agrees to cast all votes to which such holder is entitled with respect to such Shares to implement a provision in connection with the approval Company’s bylaws that provides that a quorum for any meeting of the initial issuance Board shall require the presence of Preferred Stock without directors constituting at least a separate action by majority of the holders entire Board, which majority shall include (i) at least one Bain Director and one THL Director, or (ii) at least one Bain Director and one Blackstone Director, or (iii) at least one THL Director and one Blackstone Director. In addition, each holder of Preferred Stock. Any director elected as provided Shares hereby agrees to cast all votes to which such holder is entitled with respect to such Shares to implement a provision in the preceding sentences may be removed without cause by, and only by, the affirmative vote Company’s bylaws that provides that notice of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant Board shall be given to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation Company at least twenty-four hours before the meeting by vote of a majority of such shares. At any meeting held for the purpose of electing a directormail, the presence in person telegram or by proxy of the holders of a majority of the outstanding shares of the class facsimile and email at his usual or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2last known business address, a vacancy in any directorship filled by the holders of any class facsimile number or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2email address.

Election of Directors. The holders (i) Subject to Sections 5B, each Stockholder agrees that in all elections of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; Company such Stockholder will vote all shares for which it has voting power (x) for the maintaining of a number of directors equal to four and (y) for the election of a slate of directors so that at all times four directors shall be designated by the Company, provided, however, thatthat if the Investor gives the Company notice of his desire to designate an additional director to the Board, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu including a statement whether such director will act as Chairman of the holders Board, each Stockholder will vote all shares for which it has voting power (x) for the maintaining of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors equal to fill five and (y) for the election of a slate of directors so that at all directorships times four directors shall be designated by the Company and one director shall be designated by the Investor and shall act as Chairman of the Board. The Shareholders agree that the initial directors shall be those set forth in the Schedule of Directors attached hereto. (ii) In the event that the Company or the Investor desires to remove one or more of the directors appointed by it, each of the other Stockholders will vote all shares for which they are entitled to elect directorsit has voting power at any meeting of stockholders of the Company, voting exclusively and as or will execute a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu thereof, in favor of a meeting; such removal. (iii) Upon the approval by Xxxxx and no such directorship may be filled the Investor, each Stockholder agrees to elect two additional directors to the Board, one of which is nominated by stockholders Xxxxx and the other which is nominated by the Investor. (iv) For as long as the Investor's Percentage Interest is not less than 8% (provided that the decrease in the Investor's Percentage Interest is not due to an Exempt Issuance), (i) the Investor or his designee shall have the right to attend all meetings of the Corporation Board, (ii) receive all notices and other than correspondence and communications sent by the stockholders Company to members of its Board, and (iii) receive compensation equal to the entitlement of other non-officer directors, provided that the Investor (or his designee) is a director on the Board. (v) No director of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, Company shall be entitled personally liable to elect the balance Company or its stockholders for monetary damages for breach of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing fiduciary duty as a director, the presence in person or by proxy except for liability (i) for any breach of the holders director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a majority knowing violation of law or (iii) for any transaction from which the director derived an improper personal benefit. The Company shall indemnify and hold the Investor (or his designee) harmless against any and all actions, claims, damages and losses arising solely out of the outstanding shares Investor's (or his designee's) performance as a director of the class Company, provided such losses are not caused by, result from or series entitled to elect such director shall constitute a quorum for arise out of actions described in clauses (i), (ii) or (iii) of the purpose of electing such directorpreceding sentence. Except as otherwise provided in this Subsection 4.2In addition, a vacancy in any directorship filled by the holders of any class or series indemnification payments shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or reduced by any remaining director payment actually made to the Investor (or directors elected by the holders of such class or series pursuant to this Subsection 4.2his designee) under a valid and collectible insurance policy.

Election of Directors. The holders (a) Members shall have the right to elect Directors. At each election for Directors, every Member entitled to vote at such election shall have the right to vote in person or by proxy, the number of record Units owned by him or her for as many persons as there are Directors to be elected and for whose election he or she has a right to vote, or to cumulate his or her votes by giving one candidate as many votes as the number of such Directors to be elected multiplied by the shares number of Preferred Stockhis or her Units, exclusively and as a separate class, or by distributing such votes on the same principle among any number of candidates. Five directors shall be entitled elected for a term expiring in 2007; four directors shall be elected for a term expiring in 2008 and five Directors shall be elected for a term expiring in 2009. Beginning in 2007, Directors shall be elected to elect fill the terms then expiring for a term of three (3) directors years and shall serve until his or her successor is duly or elected or, if earlier, until such Director’s death, resignation or removal. In the event the size of the Corporation; providedBoard is modified pursuant to Section 5.2, however, that, at it is the intent that the Board is authorized to address the transition to such new number of directors and shall take reasonable efforts to maintain proportionately staggered terms for the Directors thereafter. (b) Nominees for a Director position up for election shall be named by the then-current Directors or by a nominating committee established by the Directors. Nominations may also be made by any time there are any shares Member entitled to vote in the election of Series A-1 Preferred Stock issued and outstanding, in lieu Directors. Any Member that intends to nominate a Person for election as a Director may do so only if written notice of such Member’s intent to make such nomination is given one hundred twenty (120) calendar days prior to the one year anniversary of the holders date on which the Company delivered the prior year’s proxy statement or notice of annual meeting to such Members. Each such notice shall set forth: (i) the name and address of the Member who intends to make the nomination; (ii) a representation that the Member is a holder of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be Units entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, vote at such meeting and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled intends to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence appear in person or by proxy at the meeting to nominate the Person specified in the notice; (iii) the name, age, address and principal occupation/employment of each nominee; (iv) a description of all arrangements or understandings between the Member and each nominee and any other Person(s) pursuant to which such nominations are to be made; (v) such other information regarding each nominee as would be required to be included in a proxy statement filed pursuant to the proxy rules of the holders Securities and Exchange Commission; (vi) the consent of each nominee to serve as a majority of the outstanding shares of the class or series entitled to elect such director shall constitute Director if so elected; and (vii) a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled nominating petition signed and dated by the holders of at least five percent (5%) of the then outstanding Units and clearly setting forth the proposed nominee as a candidate for the Director’s seat to be filled. The Company may require any class or series proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as a Director. The presiding Officer of the meeting may, if the facts warrant, determine that a nomination was not made in accordance with the foregoing procedures, and if so determined, the defective nomination shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2disregarded.

Election of Directors. 3.2.1 The Board of Directors shall consist of five (5) directors. 3.2.2 The holders of record of the outstanding shares of Series A Preferred Stock and Series B Preferred Stock, exclusively and voting together as a separate classsingle class pursuant to Section 3.1, shall be entitled to elect three (3) two directors of the Corporation; providedCorporation (each, however, that, at any time there are any a “Preferred Director” and together the “Preferred Directors”). 3.2.3 Upon the issuance of shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of C Preferred Stock, the holders of record of the outstanding shares of Series A-1 each series of Preferred Stock shall, voting together as a single class pursuant to Section 3.1, be entitled to elect the number of director(s) who comprise a percentage of the Board of Directors proportionate to the percentage of the issued and outstanding shares of Common Stock into which such series of Preferred Stock shall be entitled convertible (thereafter referred to elect three (3) directors of the Corporation (as the “Preferred Directors”); provided, furtherhowever, that for administrative convenienceholders of issued and outstanding Common Stock, the initial Preferred Directors may also voting together as a class, shall be appointed by entitled to elect at least one Director to the Board of Directors in connection with the approval of the initial issuance of (each, a “non-Preferred Stock without a separate action by the holders of Director”). 3.2.4 Any Preferred Stock. Any director Director elected as provided in the preceding sentences Sections 3.2.2 and 3.2.3 may be removed with or without cause by, and only by, the affirmative vote of the holders of the outstanding shares of the class or series of stock entitled Preferred Stock eligible to elect such director or directorsPreferred Director, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of such stockholders. If the holders of shares of any class or series of stock Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directorsPreferred Director, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Sections 3.2.2 and 3.2.3, then any such directorship not so filled shall remain vacant until such time as the holders of the such series or class of stock Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by the Board or the stockholders of the Corporation other than by the stockholders holders of record of the Corporation that are entitled to elect a person to fill such directorshipoutstanding shares of Preferred Stock, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be that are entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series applicable Preferred Director pursuant to this Subsection 4.2Section 3.2.2 or 3.

Election of Directors. The holders of record of 64% of the shares of Series A Preferred Stock, voting exclusively and as a separate class, shall be entitled to elect three four (34) directors of the Corporation; provided, however, that, Corporation at any time there are any shares election of directors (the “Series A-1 Preferred Stock issued and outstanding, in lieu of the A Directors”). The holders of record of 66-2/3% of the shares of Series B Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock voting exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation at any election of directors (the “Series B Director”, and together with the Series A Directors, the “Preferred Directors”); provided, further, that for . For administrative convenience, the initial Preferred Directors Series B Director may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Series B Preferred Stock without a separate action by the holders of record of 66-2/3% of the shares of Series B Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate classclasses, pursuant to the first sentence two sentences of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such the applicable series or class of stock Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate classclasses. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single classclass and not as separate series, and on an as as-converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2. The rights of the holders of the Series A Preferred Stock under the first sentence of this Subsection 3.2 shall terminate on the first date following the Series A Original Issue Date (as defined below) on which there are issued and outstanding less than 1,000,000 shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock). The rights of the holders of the Series B Preferred Stock under the second sentence of this Subsection 3.2 shall terminate on the first date following the Series B Original Issue Date (as defined below) on which there are issued and outstanding less than 1,000,000 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock).

Election of Directors. The holders (a) Each Management Stockholder shall vote all of record its Shares and any other voting securities of the shares of Preferred Stock, exclusively Company over which such Management Stockholder has voting control and shall take all other necessary or desirable actions within such Management Stockholder’s control (whether in such Management Stockholder’s capacity as a separate classstockholder, shall be entitled to elect three (3) directors director, member of a board committee or officer of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause byCompany or otherwise, and only byincluding, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directorswithout limitation, given either attendance at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings and approval of amendments and/or restatements of the holders Company’s certificate of a majority incorporation or by-laws), and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board and/or stockholder meetings and approval of amendments and/or restatements of the outstanding shares Company’s certificate of incorporation or by-laws), so that: (i) the authorized number of directors on the Board shall be established by OTPP; (ii) the Chief Executive Officer of the class Company shall be elected to the Board; (iii) the remainder of the directors, which will be designated by OTPP, shall be elected to the Board; (iv) the composition of the board of directors, if any, of each of the Company’s subsidiaries (a “Subsidiary Board”) shall be determined only upon the approval of the Board; (v) any committees of the Board or series entitled to elect such director a Subsidiary Board shall constitute be created only upon the approval of the Board; (vi) the removal from the Board or a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders Subsidiary Board (with or without cause) of any class representative designated pursuant hereto by OTPP shall be at OTPP’s written request, but only upon such written request and under no other circumstances; and (vii) in the event that any representative designated pursuant hereto by OTPP for any reason ceases to serve as a member of the Board or series a Subsidiary Board during such representative’s term of office, the resulting vacancy on the Board or the Subsidiary Board shall be filled only by a representative designated by OTPP. (b) In order to secure each Management Stockholder’s obligation to vote or written consent in lieu of a meeting its Shares and other voting securities of the holders Company in accordance with the provisions of Section 5 hereof, each Management Stockholder hereby appoints OTPP as its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of such class or series or Person’s Shares and other voting securities of the Company for the election and removal of directors and all such other matters as expressly provided for in this Section 5. OTPP may exercise the irrevocable proxy granted to it hereunder at any time any Management Stockholder fails to comply with the provisions of this Section 5. The proxies and powers granted by any remaining director or directors elected by the holders of such class or series each Management Stockholder pursuant to this Subsection 4.2paragraph (b) are coupled with an interest and are given to secure the performance of the obligations under this Agreement. Such proxies and powers will be irrevocable until the termination of this Agreement and will survive the death, incompetency and disability of each Management Stockholder and any other holders of each of his or her respective Shares.

Election of Directors. The From and after the Effective Date, the Company shall use its best efforts to cause the individuals designated from time to time as described below to be nominated and elected as directors of the Company at each annual or special meeting held, or pursuant to any written consent solicited, for the election of directors of the Company. (a) Article X of the 2010 Certificate of Incorporation provides that the holders of record of the shares of C-1A Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors one member of the Corporation; providedBoard (such director, howeverif any, that, at any time there are any shares the “NMP A Director”) until the C-1A Termination Time. (b) Article X of Series A-1 Preferred Stock issued and outstanding, in lieu the 2010 Certificate of Incorporation provides that the holders of record of the shares of C-1B Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors one member of the Corporation Board (such director, if any, the “NMP B Director”) until the C-1B Termination Time. (c) Article X of the 2010 Certificate of Incorporation provides that the holders of C-1C Preferred shall be entitled to elect one member of the Board (such director, if any, the “NMP C Director”) until the C-1C Termination Time. (d) Article X of the 2010 Certificate of Incorporation provides that the holders of C-2 Preferred shall be entitled to elect one member of the Board (such director, if any, the “ARCH Director”) until the C-2 Termination Time. (e) Article X of the 2010 Certificate of Incorporation provides that the holders of C-3 Preferred shall be entitled to elect one member of the Board (such director, if any, the “Venrock Director”) until the C-3 Termination Time. (f) Article X of the 2010 Certificate of Incorporation provides that the holders of C-4 Preferred shall be entitled to elect one member of the Board (such director, if any, the “Linde Director”) until the C-4 Termination Time. (g) The Board shall be comprised of up to four directors in addition to the Designated Directors, three of whom shall be individuals who are not officers, employees, managing members or general partners of, or otherwise Affiliated with, any of the Investors or officers or employees of the Company or any of its subsidiaries, or a Family Member of any of the foregoing (the “Preferred Independent Directors”); provided, further, that for administrative convenience, and the initial Preferred Directors may also fourth shall be appointed by either the then-serving chief executive officer of the Company or an Independent Director. The members of the Board of other than the Designated Directors in connection with the approval shall be elected by a majority of the initial issuance of Preferred Stock without a separate action votes cast by the holders of the Series A Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Series B Preferred Stock and of any other class or series of voting stock (including the Preferred Common Stock), exclusively and voting together as a single class, . The provisions set forth in this Section 9.1(g) shall terminate on an as converted basis, shall be entitled to elect the balance consummation of the total number sale of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2a registration statement relating to the Company’s initial public offering of Common Stock.

Election of Directors. The holders (a) Subject to Section 2.1(f), each ---------------------- Stockholder hereby agrees that so long as this Agreement shall remain in effect, such Stockholder will vote all of the voting Securities owned or held of record by such Stockholder so as to elect and, during such period, to continue in office a Board of Directors of the shares Parent and the Company consisting solely of Preferred Stock5 designees of the LLC, exclusively as such number may be reduced from time to time pursuant to the terms of the LLC Agreement. (b) Subject to Section 2.1(g), if at any time during the period specified in paragraph (a) above the LLC shall notify the Parent and the other Stockholders of its desire to remove, with or without Cause, any director of the Parent previously designated by it, the Stockholders shall vote all of the voting Securities owned or held of record by them so as a separate classto remove such director. (c) Subject to Section 2.1(h), if at any time during the period specified in paragraph (a) above, any director previously designated by the LLC ceases to serve on the Board of Directors of the Parent or the Company (whether by reason of death, resignation, removal or otherwise), the LLC shall be entitled to elect three (3) directors designate a successor director to fill the vacancy created thereby, and the Parent shall use its best efforts to cause such successor to become a director of the CorporationParent or the Company, as the case may be, and each Stockholder agrees that such Stockholder will vote all of the voting Securities owned or held of record by such Stockholder so as to elect any such director. (d) Subject to Section 2.1(i), the parties hereto hereby acknowledge that any individual designated as a director of the Parent or the Company may be removed for Cause pursuant to the Parent's (or the Company's) by- laws and applicable law with or without the consent of the LLC. No such removal of an individual designated pursuant to this Section 2.1 shall affect any of the LLC's rights to designate a different individual pursuant to this Section 2.1. (e) No fees shall be paid by the Parent or any of its subsidiaries to any member of the Board of Directors in his capacity as such; provided that -------- the foregoing shall not limit reimbursement of expenses in accordance with the expense reimbursement policy of the Parent and its subsidiaries; and provided, further, that it is understood that the Parent shall pay Vestar -------- ------- Capital Partners, an affiliate of Vestar, an advisory fee in the amount of $500,000 per year pursuant to an advisory agreement to be entered into between the Parent and Vestar Capital Partners. (f) In the event of the dissolution of the LLC, each Stockholder hereby agrees that so long as this agreement shall remain in effect, such Stockholder will vote all of the voting Securities owned or held of record by such Stockholder so as to elect and, during such period, to continue in office a Board of Directors of the Parent and the Company, each consisting solely of the following: (i) 3 designees of Vestar (so long as Vestar and its Affiliates beneficially own not less than one-half (1/2) of the number of shares of Common Stock that were allocated to Vestar pursuant to the LLC Agreement as of the date of the LLC Agreement) or, if the foregoing condition is not satisfied, 2 designees of Vestar (so long as Vestar and its Affiliates beneficially own not less than one-third (1/3) of the number of shares of Common Stock that were allocated to Vestar pursuant to the LLC Agreement as of the date of the LLC Agreement) or, if the foregoing condition is not satisfied, 1 designee of Vestar (so long as Vestar and its Affiliates beneficially own not less than one-tenth (1/10) of the number of shares of Common Stock that were allocated to Vestar pursuant to the LLC Agreement as of the date of the LLC Agreement); provided, however, thatthat so long as the Xxxx Representative has the right to appoint at least 1 designee and Vestar (and its Affiliates) beneficially owns more shares of Common Stock than the Xxxx Stockholders (and their Permitted Transferees), Vestar shall have the right to appoint at least as many designees as the Xxxx Stockholders; and (ii) 2 designees of the Xxxx Representative (so long as the Xxxx Stockholders and their Affiliates beneficially own not less than one-half (1/2) of the number of shares of Common Stock that were allocated to the Xxxx Stockholders pursuant to the LLC Agreement as of the date of the LLC Agreement) or, if the foregoing condition is not satisfied, 1 designee of the Xxxx Representative (so long as the Xxxx Stockholders and their Affiliates beneficially own not less than one-fifth (1/5) of the number of shares of Common Stock that were allocated to the Xxxx Stockholders pursuant to the LLC Agreement as of the date of the LLC Agreement). (g) In the event of the dissolution of the LLC, if at any time there are during the period specified in paragraph (f) above, Vestar or the Xxxx Stockholders shall notify the other Stockholders of its or their desire to remove, with or without Cause, any shares of Series A-1 Preferred Stock issued and outstanding, in lieu director of the holders Parent or of the Company previously designated by it or them (whether pursuant to this Agreement or the LLC Agreement), each other Stockholder shall vote all of the voting Securities owned or held of record by such Stockholder so as to remove such director. (h) In the event of the shares dissolution of Preferred Stockthe LLC, if at any time during the period specified in paragraph (f) above, any director previously designated by Vestar or the Xxxx Stockholders ceases to serve on the Board of Directors of the Parent or the Company (whether by reason of death, resignation, removal or otherwise), the holders of record of shares of Series A-1 Preferred Stock Stockholders who designated such director (whether pursuant to this Agreement or the LLC Agreement) shall be entitled to elect three (3) directors designate a successor director to fill the vacancy created thereby, and the Parent shall use its best efforts to cause such successor to become a director of the Corporation Parent or the Company, as the case may be, and each Stockholder agrees that such Stockholder will vote all of the voting Securities owned or held of record by such Stockholder so as to elect any such director. (i) In the “Preferred Directors”); provided, further, that for administrative convenienceevent of the dissolution of the LLC, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval parties hereto hereby acknowledge that any individual designated as a director of the initial issuance Parent or of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in Company (whether pursuant to this Agreement or the preceding sentences LLC Agreement) may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, Cause pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as Parent's (or the holders of such series Company's) by-laws and applicable law with or class of stock elect a person to fill such directorship by vote or written without the consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders Stockholder which designated such individual. No such removal of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series individual designated pursuant to this Subsection 4.2Section 2.1 shall affect any of the Stockholders' rights to designate a different individual pursuant to this Section 2.1.

Election of Directors. The holders (a) In any election of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; providedCompany, however, that, each Stockholder shall vote at any time there are any shares regular or special meeting of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled stockholders (or by written consent) all Shares then owned by them (or as to which they then have voting power) to elect three (3) directors of the Corporation Company’s Chief Executive Officer (the “Preferred DirectorsCEO Director”); provided, furtherinitially Xxxxx Xxxxx, provided that if for administrative convenienceany reason the CEO Director shall cease to serve as the Company’s Chief Executive Officer, each Stockholder shall promptly vote their respective Shares (i) to remove the initial Preferred Directors may also be former Chief Executive Officer from the Board if such person has not resigned as a member of the Board and (ii) to elect such person’s replacement as Chief Executive Officer of the Company as appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect (excluding such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time former CEO Director) as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of new CEO Director. (b) In any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number election of directors of the Corporation by Company to elect the Series Seed Director, Stockholders holding shares of Series Seed Stock shall each vote at any regular or special meeting of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person stockholders (or by proxy written consent) all shares of Series Seed Stock then owned by them (or as to which they then have voting power) to elect one (1) director nominated by Ninth Avenue South Investments III, LLC, for so long as such Investor (and any of its affiliates) owns at least five percent (5%) of the Common Stock issued or issuable upon conversion of the Series Seed Preferred Stock, who shall initially be Xxxxxxx Xxxxxx. (c) In any election of directors of the Company to elect the Series A Director, Stockholders holding shares of Series A Stock shall each vote at any regular or special meeting of stockholders (or by written consent) all shares of Series A Stock then owned by them (or as to which they then have voting power) to elect one (1) director nominated by the holders of a majority of the outstanding shares Series A Stock, voting as a separate class on an as-converted basis, which seat shall initially be vacant. (d) In any election of directors of the class Company, each Stockholder shall vote at any regular or series entitled special meeting of stockholders (or by written consent) all Shares then owned by them (or as to which they then have voting power) to elect such one (1) director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled jointly nominated by (a) the holders of any a majority of the Preferred Stock, voting as a separate class or series shall be filled only by vote or written consent in lieu of a meeting of on an as-converted basis, and (b) the holders of such class or series or by a majority of the Common Stock, voting as a separate class, who shall initially be Xxxxx Xxxxxxx. (e) In the absence of any remaining nomination from the persons with the right to nominate a director as specified above, the director or directors previously nominated by such persons and then serving shall be reelected if still eligible to serve as provided herein. (f) To the extent that the application of subsections 2.2(a) through 2.2(d) above shall result in the designation of less than all of the authorized directors, then, any remaining directors shall be nominated and elected by the holders stockholders of such class or series the Company entitled to vote thereon in accordance with, and pursuant to this Subsection 4.2to, the Certificate of Incorporation.

Election of Directors. The In the election of directors of the Board, the holders of record of the shares of Series A Preferred StockShares, exclusively and as a separate classin addition to the other voting rights set forth herein, shall be entitled to elect three that number of directors equal to the quotient (3rounded up to the next highest whole number) of (i) (A) the number of directors seats on the Board that are not for appointment by the holders of the Series A Preferred Shares multiplied by (B) the Preferred Percentage, divided by (ii) the result of one minus the Preferred Percentage. Each such director shall be referred to herein as a “Preferred Director”. The holders of Series A Preferred Shares shall have the special right, voting separately as a single class (with each share being entitled to one vote) and to the exclusion of all other classes of the Corporation; provided’s stock, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu to elect individuals to fill such directorships or vacancies thereof. The special right of the holders of record Series A Preferred Shares to elect members of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be exercised at the special meeting called pursuant to Section 12(c), at any annual or other special meeting of stockholders and pursuant to a written consent in lieu of a stockholders meeting as set forth in Section 10(a). Each Preferred Director appointed pursuant to this Section 10(b) shall continue to hold office until such Preferred Director is removed without cause by, and only by, from office by the affirmative vote of the holders Series A Preferred Majority Holders or at such time as such Preferred Director’s death, resignation, retirement or disqualification. Any vacancy created by the removal, death, resignation, retirement or disqualification of a Preferred Director shall be filled by the affirmative vote of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholdersSeries A Preferred Majority Holders. If the holders of shares of the Series A Preferred Shares for any class or series of stock reason fail to elect a sufficient number of directors anyone to fill all directorships for which they are entitled to elect directorsany such directorship or vacancy, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled such position shall remain vacant until such time as the such holders of such series or class of stock elect a person director to fill such directorship by vote or written consent in lieu of a meeting; position and no such directorship may shall not be filled by stockholders resolution or vote of the Corporation Board or the Corporation’s other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate classstockholders. The Company and the Board shall take all such action as may be reasonably requested by such holders of record of the shares of Common Stock and of any other class or series of voting stock to effect this Section 10(b) (including nominating and recommending the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy designees of the holders of the Series A Preferred Shares for election and calling a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a special meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Series A Preferred).

Election of Directors. The holders of record of 64% of the shares of Series A Preferred Stock, voting exclusively and as a separate class, shall be entitled to elect three four (34) directors of the Corporation; provided, however, that, Corporation at any time there are any shares election of directors (the “Series A-1 Preferred Stock issued and outstanding, in lieu of the A Directors”). The holders of record of 66-2/3% of the shares of Series B Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock voting exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation at any election of directors (the “Series B Director”, and together with the Series A Directors, the “Preferred Directors”); provided, further, that for . For administrative convenience, the initial Preferred Directors Series B Director may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Series B Preferred Stock without a separate action by the holders of record of 66-2/3% of the shares of Series B Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate classclasses, pursuant to the first sentence two sentences of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such the applicable series or class of stock Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate classclasses. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single classclass and not as separate series, and on an as as-converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2. The rights of the holders of the Series A Preferred Stock under the first sentence of this Subsection 3.2 shall terminate on the first date following the Series C Original Issue Date (as defined below) on which there are issued and outstanding less than 1,000,000 shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock). The rights of the holders of the Series B Preferred Stock under the second sentence of this Subsection 3.2 shall terminate on the first date following the Series C Original Issue Date (as defined below) on which there are issued and outstanding less than 1,000,000 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock).

Election of Directors. The holders of record of Parties and the shares of Preferred StockCorporation shall take all --------------------- action within their respective power, exclusively and as a separate classincluding, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stockbut not limited to, the holders voting of record of shares of Series A-1 Preferred Capital Stock shall be entitled to elect three (3) directors of the Corporation (to the “Preferred Directors”extent that any such Person holds Capital Stock of the Corporation entitled to vote thereon); provided, further, that for administrative convenience, required to cause the initial Preferred Directors may also be appointed Board to at all times consist of no more than five members (subject to the other provisions of this Section 2.2(b)) comprised of: (i) two members designated by the Board of Directors in connection with Group A Representative for as long as the approval Group A Holders collectively own at least 20% of the initial issuance of Preferred Fully-Diluted Common Stock without a separate action and one member designated by the holders Group A Representative for as long as the Group A Holders collectively own at least 10% but less than 20% of Preferred the Fully-Diluted Common Stock; (ii) prior to a CHEX Change of Control only, two members designated by the Group B Representative for as long as the Group B Holders collectively own at least 20% of the Fully-Diluted Common Stock and one member designated by the Group B Representative for as long as the Group B Holders collectively own at least 10% but less than 20% of the Fully-Diluted Common Stock; and (iii) the then chief executive officer of the Corporation. Any director elected as provided In the event that any Director (a "Withdrawing Director") designated in the manner set forth in the preceding sentences may sentence is unable to serve, or once having commenced to serve, is removed or withdraws from the Board, such Withdrawing Director's replacement (the "Substitute Director") on the Board shall be removed without designated in accordance with this Section 2.2(b) by the Party entitled to designate such Director. The Corporation and each of the Parties agrees to take all action within its or his power, including, but not limited to, (i) the voting of Capital Stock of the Corporation to cause bythe election of such Substitute Director as soon as practicable following his designation and (ii) the instructing of the Directors it had previously designated to serve as members of the Board, as the first order of business at the first meeting thereof after such Substitute Director has been so designated, to vote to seat such designated Substitute Director as a Director in place of the Withdrawing Director. Notwithstanding the foregoing provisions of this Section 2.2(b), at any time, and only byfrom time to time, by notice to the Board, as long as the Group A Holders collectively own at least 30% of the Fully-Diluted Common Stock, the affirmative vote Group A Representative shall have the right to cause the Board to be increased to add, if the Group A Holders collectively own at least 30% but less than 40% of the holders Fully-Diluted Common Stock, one additional member designated by the Group A Representative (for a total of three), and if the Group A Holders collectively own at least 40% of the shares Fully-Diluted Common Stock, two additional members designated by the Group A Representative (for a total of four) ("Additional Directors"). The Corporation and each of the class Parties agrees to take all action within its or series his power, including, but not limited to, (i) the voting of stock Capital Stock of the Corporation to cause the foregoing expansion of the Board and the election of such Additional Directors as soon as practicable following their designation and (ii) the instructing of the Directors it had previously designated to serve as members of the Board, as the first order of business at the first meeting thereof after such Additional Directors have been so designated, to vote to expand the Board as provided above and seat such designated Additional Directors as Directors. In the event any Party entitled to elect such director designate a Director or directors, given either at a special meeting of such stockholders duly called for that purpose or Directors pursuant to this Agreement fails to designate a written consent of stockholders. If the holders of shares of any class Director or series of stock fail to elect a sufficient number of directors to fill all Directors, such directorship or directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until unless such time as vacancy results in less than the holders minimum number of Directors required by law, in which case such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may vacancy shall be filled by stockholders of the Corporation other than an individual elected by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Directors then serving.

Election of Directors. The In any election of directors of the Company prior to a Qualified IPO, KPMG and the Investor shall each vote at any regular or special meeting of stockholders (or by written consent) such amount of Voting Securities then owned by them (or as to which they then have voting power) as may be necessary to elect the following individuals to the Board: (a) seven (7) representatives or nominees of KPMG; (b) two (2) representatives or nominees of the Investor (it being understood and agreed that these two representatives or nominees shall constitute the two directors entitled to be elected by the holders of record Series A Preferred Stock pursuant to the Certificate of Designation); and (c) two (2) directors nominated by management of the shares Company. Other than a committee formed for the sole purpose of Preferred Stockevaluating a transaction in which the Investor would be an interested party, exclusively and as prior to a separate classQualified IPO, the Investor shall be entitled to elect three (3) directors representation on each committee of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholdersBoard. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other Investor holds less than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of Series A Preferred Stock, then notwithstanding paragraph (b) above, the class or series two director positions entitled to elect such director be elected by a majority of the Series A Preferred Stock shall constitute be determined by a quorum majority of the shares of Series A Preferred Stock in accordance with the Certificate of Designation. Following a Qualified IPO of the Company, the Company shall, and KPMG shall cause (or, if it does not then hold a controlling interest in the Company, shall use its reasonable best efforts to cause) the Company to, use its best efforts to nominate for election and use its best efforts to cause to be elected to the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Board, a vacancy number of representatives of the Investor proportionately equal to the Investor's percentage ownership of Voting Securities of the Company (with respect to any then-outstanding shares of Series A Preferred Stock, calculated as if the Series A Preferred Stock owned by the Investor were converted into Common Stock pursuant to the Certificate of Designation setting forth the terms of the Series A Preferred Stock), but in any directorship filled by event not less than two (2) such representatives for so long as the holders Investor owns an amount of any class or series shall be filled only by vote or written consent in lieu of a meeting Registrable Securities equal to at least fifteen percent (15%) of the holders outstanding Voting Securities and not less than one (1) such representative for so long as the Investor owns an amount of such class Registrable Securities equal to at least five percent (5%) of the outstanding Voting Securities. If the Investor owns an amount of Registrable Securities equal to less than five percent (5%) of the outstanding Voting Securities, the Company may request that a representative of nominee of the Investor be a director, but the Investor shall not be entitled to designate a representative to the Board or series or by to any remaining director or directors elected by committee of the holders of such class or series Board pursuant to this Subsection 4.2Section 3.4.

Election of Directors. (a) The holders Majority Stockholders agree that at the next --------------------- meeting of record stockholders of the Company following the date of this Agreement (the "Stockholders' Meeting"), and for so long as the Series A Investors who are --------------------- affiliates of Softbank (the "Softbank Investors") hold a majority of the shares ------------------ of Series A Preferred originally purchased pursuant to their respective Subscription Agreements or the capital stock into which such shares of Series A Preferred are convertible, they will vote all of their respective shares of capital stock in the Company in favor of the election of, and take all other actions necessary to cause the election of, a director nominated by the Softbank Investors (the "Softbank Director"), and shall, upon the request of the Softbank ----------------- Investors, use their best efforts to cause such director to be appointed to the Company's audit committee or compensation committee. In the event that the Softbank Investors elect to terminate the appointment of the Softbank Director, or fail to nominate a candidate, the Majority Stockholders will nominate and elect a director of their choosing in place of the Softbank Director. (b) The Majority Stockholders agree that at the Stockholders' Meeting, and for so long as GE Capital Equity Investments Inc., its affiliates or beneficial owners (collectively, the "GE Investors") hold a majority of the shares of ------------ Series A Preferred Stock, exclusively and as a separate class, shall be entitled originally purchased pursuant to elect three (3) directors of their respective Subscription Agreements or the Corporation; provided, however, that, at any time there are any capital stock into which such shares of Series A-1 A Preferred Stock issued and outstandingare convertible, they will vote all of their respective shares of capital stock in lieu the Company in favor of the holders of record election of, and take all other actions necessary to cause the election of, a director nominated by the GE Investors (the "GE Director"), and shall, upon the request of the shares of Preferred StockGE Investors, the holders of record of shares of Series A-1 Preferred Stock shall ----------- use their best efforts to cause such director to be entitled appointed to elect three (3) directors whichever of the Corporation (Company's audit committee or compensation committee to which the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship Softbank Director is not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2elected.

Election of Directors. The holders So long as the number of record of the outstanding shares of Series C-1 Preferred Stock and Series C-2 Preferred Stock, exclusively and as a separate classin the aggregate, shall equal or exceed such number of shares that can be entitled to elect three converted into Common Stock which represents beneficial ownership of more than five percent (35%) directors of the Corporation; provided, however, that, at any time there are any outstanding shares of Series A-1 Preferred Common Stock issued and outstanding(without regard to or giving effect to any limitations on the ability to convert in effect prior to the date of the first Shareholder Issuance Vote (as defined in the Securities Purchase Agreement)), in lieu of the holders of record of the shares of Series C-1 Preferred Stock and Series C-2 Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock voting together as a single class, shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred DirectorsSeries C Director”); provided. For purposes of this Subsection 6.2, further, that for administrative convenience, the initial Preferred Directors may also beneficial ownership shall be appointed determined by the Board of Directors Corporation in connection accordance with the approval Section 13(d) of the initial issuance of Preferred Stock without a separate action by Exchange Act and the holders of Preferred Stockrules and regulations promulgated thereunder. Any director elected as provided in the preceding sentences may be removed with or without cause by, and only by, the affirmative vote of the holders of the shares Series C-1 Preferred Stock and the holders of the class or series of stock entitled to elect such director or directorsSeries C-2 Preferred Stock, given either at a special meeting of such stockholders duly called for that purpose purpose, or pursuant to a written consent of stockholders. If the holders of shares of any class or series Series C-1 Preferred Stock and the holders of stock the Series C-2 Preferred Stock fail to elect such a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2director, then any directorship not so filled shall remain vacant until such time as the holders of such series or class the Series C-1 Preferred Stock and the holders of stock the Series C-2 Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders holders of shares of Series C-1 Preferred Stock and the holders of the Corporation that are entitled to elect a person to fill such directorshipSeries C-2 Preferred Stock, voting exclusively and as a separate class. The Any vacancy in the position of Series C Director shall be filled by the holders of record the Series C-1 Preferred Stock and the holders of the shares Series C-2 Preferred Stock by vote or written consent in lieu of Common Stock a meeting; and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall no such directorship may be entitled to elect the balance of the total number of directors filled by stockholders of the Corporation other than by vote the holders of the Series C-1 Preferred Stock and the holders of the Series C-2 Preferred Stock, voting exclusively and as a majority of such sharesseparate class. At any meeting held for the purpose of electing a directorthe Series C Director, the presence in person or by proxy of the holders of a majority majority, in the aggregate, of the outstanding shares of the class or series entitled to elect such director Series C-1 Preferred Stock and Series C-2 Preferred Stock shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Series C Director.

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors” or “Series A Directors”), the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect two directors of the Corporation (the “Common Directors”) until the Series A Preferred Stock is issued if the Corporation does not close the Arowana Funding at an Arowana Related Closing (as such terms are defined in the Purchase Agreement), and the holders of record of the shares of Common Stock and Preferred Stock voting together as a single class with the holders of Series A Preferred Stock having one hundred (100) votes per whole share, shall be entitled to elect the remaining directors of the Corporation (the “Remaining Directors”); provided, furtherhowever, that for administrative convenience, the initial Preferred Directors Director may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. For purpose of clarity, the right of the holders of the Common Stock to continue to exclusively elect the Common Directors shall only continue if the Company has closed the Arowana Funding at an Arowana Related Closing (as such terms are defined by the Purchase Agreement) and such right shall automatically terminate if the Arowana Funding does not close at an Arowana Related Closing. The Preferred Directors shall be entitled to cast the number of votes on any matter brought before the Board for approval, whether at a meeting of the Board of Directors or in connection with an action by unanimous written consent of the Board of Directors, or any committee thereof as provided in Section 3.3. If the holders of shares of any class Preferred Stock or series of stock Common Stock, as applicable, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Section 3.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock the Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 3.2, a vacancy in any directorship filled by the holders of any class or classes or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or classes or series or by any remaining director or directors elected by the holders of such class or classes or series pursuant to this Subsection 4.2Section 3.2. For the purpose of clarity, every reference in this Amended and Restated Certificate of Incorporation and the Bylaws of the Corporation, in each case as the same may be amended or restated from time to time, to a majority or other proportion of the directors of the Corporation shall refer to a majority or other proportion of the votes of the directors. The voting rules set forth in this Section 3.2 and Section 3.3 shall apply to any vote taken at any meeting of a committee or sub-committee of the Board of Directors, such that, at any meeting of a committee or sub-committee of the Board of Directors, each director shall be entitled to cast the number of votes he or she would be entitled to cast if the vote were being taken at a meeting of the Board of Directors.

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the . The holders of record of the shares of Preferred Common Stock, the holders of record of shares of Series A-1 Preferred Stock exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); providedCorporation, furtherprovided that until March 31, that for administrative convenience2013, the initial Preferred Directors may also holders of record of the shares of Common Stock, exclusively and as a separate class, shall be appointed entitled to elect four (4) directors. With respect to the directors to be elected by the Board of Directors in connection with the approval holders of the initial issuance Preferred Stock, any election shall be determined by a majority of Preferred Stock without a separate action the votes cast by the holders of Preferred StockStock entitled to vote at the election. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. With respect to any such removal, the affirmative vote must be (i) with respect to directors elected by the holders of Common Stock, by the vote of the holders of at least sixty-six and two-third percent (66 2/3%) of the shares then entitled to vote at an election of directors, and (ii) with respect to directors elected by the holders of Preferred Stock, by the vote of the holders of a majority of the outstanding shares of Preferred Stock. If the holders of shares of any class Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Section 4(b), then any directorship not so filled shall remain vacant until such time as the holders of such series the Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The Prior to March 31, 2013, the holders of record of the shares of Common Stock and of any other class or series of voting stock (excluding the Preferred Stock), exclusively and voting together as a single class, shall be entitled to elect the balance of the total number of directors of the Corporation. On and after March 31, 2013, the holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 4(b), a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Section 4(b).

Election of Directors. The For so long as the holders of record Convertible Stock continue to hold at least twenty-five percent (25%) of the shares of Preferred Convertible Stock issued in the original issuance of the Convertible Stock, exclusively and the holders of outstanding shares of Convertible Stock shall, voting together as a separate class, shall be entitled to elect three two (32) directors Directors of the Corporation; provided, however, that, at any time there are any . Such Directors shall be the candidates receiving the greatest number of affirmative votes of the outstanding shares of Series A-1 Preferred Convertible Stock issued (the "Convertible Stock Director Designees"), with each share of Convertible Stock entitled to one (1) vote with fractional votes for fractional shares, and outstanding, in lieu with votes cast against such candidates and votes withheld having no legal effect. The election of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Convertible Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action Director Designees by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, Convertible Stock shall occur (i) at the affirmative vote annual meeting of the holders of the shares of the class or series of stock entitled to elect such director or directorscapital stock, given either (ii) at a any special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares capital stock, (iii) at any special meeting of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship Convertible Stock called by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of Convertible Stock or (iv) by a written consent of holders of at least sixty-six and two-thirds percent (662/3%) of the class or series entitled voting power (a "Two Thirds Interest") of the outstanding shares of Convertible Stock. If at any time when any share of Convertible Stock is outstanding a Convertible Stock Director Designee should cease to elect such director be a Director of the Corporation for any reason, the vacancy shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship only be filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the outstanding shares of Convertible Stock, voting together as a separate class, in the manner and on the basis specified above. The holders of such class or series pursuant outstanding shares of Convertible Stock shall also be entitled to this Subsection 4.2vote for all other Directors of the Corporation together with holders of all other shares of the Corporation's outstanding capital stock entitled to vote thereon, voting as a single class, with each outstanding share entitled to the number of votes specified in Section A.2(b).

Election of Directors. The holders At each annual meeting of record Common Members, successors to the class of Directors whose term expires at that annual meeting shall be elected for a three (3)-year term and until their successors are duly elected or appointed and qualified. Except for the Series A Nonpayment Directors, if the number of Directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible, and any additional Director of any class elected to fill a vacancy resulting from an increase in such class or from the death, resignation or removal from office of a Director or other cause shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of Directors shorten the term of any incumbent Director. Directors need not be Members. Except as otherwise provided by the Series A Preferred Share Designation with respect to the Series A Nonpayment Directors, the Directors shall be elected at the annual meeting of Common Members (except as provided in Section 5.6), and each Director elected shall hold office until the third succeeding meeting next after such Director’s election and until such Director’s successor is duly elected and qualified, or until such Director’s death or until such Director resigns or is removed in the manner hereinafter provided. Except as otherwise provided by the Series A Preferred Share Designation with respect to the Series A Nonpayment Directors, Directors shall be elected by a plurality of the shares votes of Preferred StockOutstanding Voting Shares present in person or represented by proxy and entitled to vote on the election of Directors at any annual or special meeting of Members. The Board of Directors shall present to the Members holding Outstanding Voting Shares nominations of candidates for election to the Board of Directors (or recommend the election of such candidates as nominated by others) such that, exclusively and shall take such other corporate actions as may be reasonably required to provide that, to the best knowledge of the Board of Directors, if such candidates are elected by the Members holding Outstanding Voting Shares, at least a majority of the members of the Board of Directors shall be Independent Directors. The Board of Directors shall only elect any Person to fill a vacancy on the Board of Directors if, to the best knowledge of the Board of Directors, after such person’s election at least a majority of the members of the Board of Directors shall be Independent Directors. The foregoing provisions of this paragraph shall not cause a Director who, upon commencing his or her service as a separate class, shall be entitled to elect three (3) directors member of the Corporation; provided, however, that, at any time there are any shares Board of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed was determined by the Board of Directors to be an Independent Director but did not in connection with fact qualify as such, or who by reason of any change in circumstances ceases to qualify as an Independent Director, from serving the approval remainder of the initial issuance term as a Director for which he or she was selected. Notwithstanding the foregoing provisions of Preferred Stock without a separate this paragraph, no action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders Board of Directors shall be invalid by reason of the shares of the class or series of stock entitled to elect such director or directors, given either failure at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares members of the class or series entitled Board of Directors to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Independent Directors.

Election of Directors. The holders (a) Each Purchaser Shareholder agrees, severally but not jointly, as follows: (i) Until the later of record such time as (x) the respective obligations of the shares parties under Section 7 and this Section 10 of Preferred Stock, exclusively this Agreement no longer are in effect and as a separate class, shall be entitled to elect three (3y) directors of the Corporation; provided, however, that, at any time there are no Purchaser Shareholder holds any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of A Capital Securities or Series E Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors at each annual meeting of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval shareholders of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause byCompany, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a each special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders shareholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held Company called for the purpose of electing directors of the Company and at any time at which shareholders of the Company shall have the right to, or shall, vote, at a directormeeting or by written consent, for directors of the presence Company, then, and in each event, each Purchaser Shareholder and Xxxxxx shall vote (unless expressly prohibited from doing so by the FRB), by written consent or in person or by proxy proxy, that portion of such Person's Voting Securities that constitute Delegated Shares (as hereinafter defined) in favor of the holders of director nominees specified by DCG as provided below (the "Specified Nominees") constituting up to a majority of the outstanding shares members of the class Company's Board of Directors (for example, five of nine directors or series six of eleven directors). As used herein, a party's "Delegated Shares" shall mean all Voting Securities then owned by such party and entitled to elect vote in the election of directors or such director shall constitute a quorum for lesser number of Voting Securities as is equal to (x) the purpose fraction consisting of electing all of such director. Except as otherwise provided party's Voting Securities then entitled to vote in this Subsection 4.2, a vacancy in any directorship filled the election of directors divided by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting sum of the holders Voting Securities entitled to vote that are then held by Purchaser Shareholders and those held by Xxxxxx, multiplied by (y) a number of shares equal to the arithmetic difference between forty-eight percent (48.0%) of all Voting Securities then outstanding and entitled to vote in the election of directors minus the sum of the Voting Securities then held by DCG and the Voting Securities then held by Xxxxxx. Consistent with the foregoing, each Purchaser Shareholder and Xxxxxx may vote any of such class party's Voting Securities that do not constitute Delegated Shares for any nominee for director, whether or series or by any remaining director or directors elected by the holders of not a Specified Nominee, in such class or series pursuant to this Subsection 4.2party's discretion.

Election of Directors. The (i) For so long as at least 800,000 shares of the Series A Preferred Stock remain issued and outstanding (as adjusted for stock splits, stock combinations, recapitalizations and the like), the holders of record of the outstanding shares of Series A Preferred Stock, exclusively and voting as a separate classsingle class to the exclusion of all other classes of the Corporation’s capital stock, and with each share of Series A Preferred Stock entitled to one (1) vote per share, shall be entitled to elect four (4) directors of the Board of Directors of the Corporation and shall not otherwise be permitted to vote with the holders of record of Common Stock as to the election of directors of the Corporation. If the holders of record of the Series A Preferred Stock for any reason fail to elect anyone to fill any such directorship, such position shall remain vacant until such time as the holders of record of the Series A Preferred Stock elect a director to fill such position, and shall not be filled by resolution or vote of the Corporation’s Board of Directors or the Corporation’s other stockholders. (ii) For so long as at least 600,000 shares but less than 800,000 shares of the Series A Preferred Stock remain issued and outstanding (as adjusted for stock splits, stock combinations, recapitalizations and the like), the holders of record of the outstanding shares of Series A Preferred Stock, voting as a single class to the exclusion of all other classes of the Corporation’s capital stock, and with each share of Series A Preferred Stock entitled to one (1) vote per share, shall be entitled to elect three (3) directors of the Board of Directors of the Corporation and shall not otherwise be permitted to vote with the holders of record of Common Stock as to the election of directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of . If the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 A Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock reason fail to elect a sufficient number of directors anyone to fill all directorships for which they are entitled to elect directorsany such directorship, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled such position shall remain vacant until such time as the holders of such series or class record of stock the Series A Preferred Stock elect a person director to fill such directorship by vote or written consent in lieu of a meeting; position, and no such directorship may shall not be filled by stockholders resolution or vote of the Corporation Corporation’s Board of Directors or the Corporation’s other stockholders. (iii) For so long as at least 400,000 shares but less than by the stockholders 600,000 shares of the Corporation that are entitled to elect a person to fill such directorshipSeries A Preferred Stock remain issued and outstanding (as adjusted for stock splits, voting exclusively stock combinations, recapitalizations and as a separate class. The the like), the holders of record of the outstanding shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock), exclusively and voting together as a single classclass to the exclusion of all other classes of the Corporation’s capital stock, on an as converted basisand with each share of Series A Preferred Stock entitled to one (1) vote per share, shall be entitled to elect the balance two (2) directors of the total number Board of Directors of the Corporation and shall not otherwise be permitted to vote with the holders of record of Common Stock as to the election of directors of the Corporation Corporation. If the holders of record of the Series A Preferred Stock for any reason fail to elect anyone to fill any such directorship, such position shall remain vacant until such time as the holders of record of the Series A Preferred Stock elect a director to fill such position, and shall not be filled by resolution or vote of the Corporation’s Board of Directors or the Corporation’s other stockholders. (iv) For so long as at least 200,000 shares but less than 400,000 shares of the Series A Preferred Stock remain issued and outstanding (as adjusted for stock splits, stock combinations, recapitalizations and the like), the holders of record of the outstanding shares of Series A Preferred Stock, voting as a majority single class to the exclusion of all other classes of the Corporation’s capital stock, and with each share of Series A Preferred Stock entitled to one (1) vote per share, shall be entitled to elect one (1) director of the Board of Directors of the Corporation and shall not otherwise be permitted to vote with the holders of record of Common Stock as to the election of directors of the Corporation. If the holders of record of the Series A Preferred Stock for any reason fail to elect anyone to fill any such sharesdirectorship, such position shall remain vacant until such time as the holders of record of the Series A Preferred Stock elect a director to fill such position, and shall not be filled by resolution or vote of the Corporation’s Board of Directors or the Corporation’s other stockholders. (v) If less than 200,000 shares of the Series A Preferred Stock remain issued and outstanding (as adjusted for stock splits, stock combinations, recapitalizations and the like), each holder of record of the outstanding shares of Series A Preferred Stock shall have the right to one vote for each share of Common Stock into which such share of Series A Preferred Stock could then be converted, and with respect to such vote, such holder of record shall have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock, and shall be entitled to notice of any stockholders’ meeting in accordance with the bylaws of this Corporation, and shall be entitled to vote together with holders of Common Stock as a single class, with respect to the election of directors. At Fractional votes shall not, however, be permitted and any fractional voting rights available on an as-converted basis (after aggregating all shares into which shares of Series A Preferred Stock held by each holder of record could be converted) shall be rounded to the nearest whole number (with one-half being rounded upward). The rights granted pursuant to Section 6(b)(i)-(iv) (if the four individuals described in Section 6(b)(i) hereof have not already been appointed by the Board on or prior to the Series A Preferred Stock Issue Date) may be exercised by written consent of the holders of Series A Preferred Stock, at a special meeting of the holders of Series A Preferred Stock, called as provided for in Section 6(c), or at any annual meeting of stockholders held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2directors.

Election of Directors. The (I) Subject to the provisions of Section 8(e)(ii)(II) below, upon the occurrence of a Default Event (hereafter defined) with respect to the Series E Preferred Stock and for the duration of the Default Period (hereafter defined), the holders of record of the shares of Series E Preferred Stock, exclusively and as a separate classin addition to any other voting rights they may have by law, shall be entitled to elect three vote (3) directors voting separately as a series by a majority of the Corporation; provided, however, that, outstanding shares thereof) for the election to the Board of Directors of the smallest number of additional directors necessary to constitute at any given time there are any shares a majority of the total number of members of the Board of Directors (after giving effect to such election), and should such percentage when applied to the number of the members of the Board of Directors result in a number that includes a fraction, then such number shall be increased to the next whole number. In addition, during the Default Period, the holders of the Series A-1 E Preferred Stock issued and outstandingshall be entitled to designate (voting as a series as aforesaid) the number of positions on the Board of Directors, in lieu which shall be the smallest number of directors necessary for the nominees of the holders of record the Series E Preferred Stock to constitute a majority of the full Board. In case the holders of the Series E Preferred Stock become entitled to exercise such special voting rights, they may call a special meeting of stockholders during the Default Period, in the manner provided in the bylaws or otherwise as provided by law, for the purpose of increasing or decreasing the number of positions on the Board of Directors and electing such members to the Board of Directors. In addition, the holders of the Series E Preferred Stock shall have such special voting rights at any annual or regular meeting of stockholders (or any other special meeting not called by the holders of the Series E Preferred Stock) held during the Default Period. In lieu of the foregoing, the holders of the Series E Preferred Stock may take any of such actions by a written consent signed by the holders of at least a majority of the shares the Series E Preferred Stock outstanding and entitled to vote thereon. (II) Notwithstanding the provisions of Section 8(d)(ii)(I) above, if during the Default Period, a Default Event occurs and is continuing with respect to the Series D Preferred Stock, the holders of record of shares of the Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of D Preferred Stock. Any director elected as provided , in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled addition to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basisrights they may have by law, shall be entitled to elect vote (together, as a class, with the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held Series E Preferred Stock) for the purpose election of electing a directoradditional directors to the Board of Directors, the presence as described in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Section 8(e)(ii)(I) above.

Election of Directors. The holders of record At any time at which stockholders of the Company will have the right to, or will vote for or consent in writing to, the election of directors of the Company, then, and in each such event, the Stockholders shall vote all their respective shares of Common Stock and/or Series A Preferred Stock, exclusively as applicable, to cause and as a separate class, shall be entitled maintain the election to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval following persons: (a) for so long as NEA Partners 11, L.P. (“NEA”) owns any Stock, two (2) designated representatives of NEA (the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock“NEA Directors”), exclusively and voting together as a single class, on an as converted basis, whom shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a directorinitially M. Xxxxx Xxxxxxx, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Ph.D. and Xxxxxxx X. Xxxxxxx, a vacancy in any directorship filled by the holders of any class or series III, which NEA Directors shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of the Series A Preferred Stock, voting as a separate class; (b) for so long as any of the OrbiMed Entities (“OrbiMed”) owns any Stock, one (1) designated representative of OrbiMed (the “OrbiMed Director”), who shall be initially Xxxxxxx X. Xxxxxxxx, which OrbiMed Director shall be a director elected by the holders of the Series A Preferred Stock, voting as a separate class; (c) for so long as any shares of Common Stock are outstanding, one (1) independent person, to be designated by holders of the outstanding shares of Common Stock and acceptable to all other members of the Board of Directors of the Company (the “Independent Director”), which Independent Director shall be a director elected by the holders of the Common Stock, voting as a separate class; and (d) for so long as any shares of Common Stock are outstanding, the Chief Executive Officer of the Company (the “CEO Director”), who shall initially be Xxxx Xxxxxxx, which CEO Director shall be a director elected by the holders of the Common Stock, voting as a separate class; provided, that, if for any reason the CEO Director shall cease to serve as the Chief Executive Officer of the Company, each of the Stockholders shall promptly vote their respective Stock (i) to remove him from the Board of Directors if he has not resigned from such class position and (ii) to elect the person who replaces him or series pursuant to this Subsection 4.2her as Chief Executive Officer of the Company as the new CEO Director.

Election of Directors. The holders Subject to the special provisions of record of the shares of Preferred Stock, exclusively Sections 1(b) and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that2 below, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu at which the stockholders of the holders of record of Company will have the shares of Preferred Stockright to vote for, or will vote for, or consent in writing to, the holders election of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation Company, each Stockholder hereby agrees to vote or cause to be voted all Shares (as defined herein below) owned or hereafter acquired by him, her or it, or over which he, she or it has voting control, so as to fix the “Preferred Directors”); provided, further, that for administrative convenience, number Of directors of the initial Preferred Directors may also be appointed by Company at seven (7) and in favor of the following actions: (i) to cause and maintain the election to the Board of Directors in connection with the approval of the initial issuance two (2) designated representatives of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series Class A Preferred Stock, by action of stock fail to elect a sufficient number majority of directors to fill all directorships for which they are entitled to elect directors, the Shares of Class A Preferred Stock held by such stockholders voting exclusively and as a separate classclass (individually, pursuant a "Class A Preferred Director" and collectively, the "Class A Preferred Directors"); (ii) to cause and maintain the election to the first sentence Board of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as Directors of two (2) designated representatives of the holders of such series or class shares of stock elect a person to fill such directorship Class B Preferred Stock, by vote or written consent in lieu action of a meeting; and no such directorship may be filled by stockholders majority of the Corporation other than Shares of Class B Preferred Stock held by the such stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The class (individually, a "Class B Preferred Director" and collectively, the "Class B Preferred Directors"); (iii) to cause and maintain the election to the Board of Directors of one (1) designated representative of the holders of record shares of Common Stock or their designees, by action of a majority of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled separate class (the "Common Stock Director"); (iv) to elect cause and maintain the balance election to the Board of the total number Directors of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy one (1) designated representative of the holders of shares of Common Stock, Class A Preferred Stock, Class B Preferred Stock, and Class C Preferred Stock, by action of a majority of the outstanding shares of Common Stock, Class A Preferred Stock, Class B Preferred Stock, and Class C Preferred Stock, voting together as a class (the class or series entitled "Stockholder Director"); and (v) to elect such director shall constitute a quorum for cause and maintain the purpose election to the Board of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting Directors of the holders Chief Executive Officer of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Company (the "CEO Director").

Election of Directors. The (i) Subject to Section 4.2(viii), the holders of record of the shares of Series A Preferred Stock, exclusively and voting as a separate classseries, shall be entitled to elect three two (32) directors members of the Corporation; providedBoard (the “Series A Directors”). (ii) Unless a Series A Director’s term of office shall have terminated prior to such time pursuant to Section 4.2(v)-(vii) below, however, that, such Series A Director designated or elected pursuant to this Section 4.2 shall serve until the next special or annual meeting of stockholders of the Corporation called for the purpose of electing Series A Directors at which such Series A Director is up for election or at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu special meeting of the holders of record Series A Preferred Stock, as the case may be, for the purpose of removing Series A Directors, or until his or her successor shall be duly elected in accordance with Section 4.2(i). (iii) At any meeting held for the purpose of electing directors, the presence in person or by proxy of the holders of a majority of the shares of Preferred Stock, the holders of record of shares of Series A-1 A Preferred Stock then outstanding shall constitute a quorum for the election of directors to be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action elected solely by the holders of the Series A Preferred Stock pursuant to Section 4.2(i). (iv) With respect to the election of any director or directors by the holders of the outstanding shares of Series A Preferred Stock given the right to elect such director or directors pursuant to Section 4.2(i) (the “Specified Stock”), that candidate or those candidates (as applicable) shall be elected who receive the highest number of affirmative votes of the outstanding shares of such Specified Stock, up to the number of directors to be elected by such Specified Stock. (v) If there shall be any vacancy in the office of a director elected or to be elected by the holders of Series A Preferred Stock. Any , then a director to hold office for the unexpired term of such directorship may be elected by the remaining director elected as provided by the holders of Series A Preferred Stock or the required vote of holders of the shares of such Series A Preferred Stock specified in Section 4.2(iv) above that are entitled to elect such director. (vi) Subject to Section 141(k) of the preceding sentences DGCL, any director who shall have been elected to the Board by the holders of Series A Preferred Stock may be removed during his or her term of office, without cause cause, by, and only by, the affirmative vote of the holders shares representing a majority of the voting power of all the outstanding shares of the class or series of stock such Series A Preferred Stock entitled to elect such director or directorsvote, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If stockholders without a meeting, and any vacancy created by such removal may be filled only in the manner provided in Section 4.2(v). (vii) Any meeting of the holders of shares of any class or series of stock fail Series A Preferred Stock, in order to elect or remove a sufficient number director under this Section 3.2, shall be held in accordance with the procedures and provisions of directors the Bylaws, the DGCL and applicable law regarding stockholder meetings, as such are then in effect (including but not limited to fill all directorships procedures and provisions for which they are determining the record date for shares entitled to elect directors, voting exclusively vote). (viii) The obligations of the Corporation and as a separate class, the rights of the Holders of Series A Preferred Stock pursuant to this Section 4.2 shall terminate on the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until to occur of: (a) such time as the holders funds affiliated with Oaktree Capital Management, L.P. or their Affiliates, collectively, do not own (i) at least 187,500 shares of Series A Preferred Stock (such number of shares being subject to proportional adjustment to reflect combination or subdivisions of such series Series A Preferred Stock or class dividends declared in shares of stock elect such stock) and (ii) a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders majority of the Series A Preferred Stock outstanding; (b) the Corporation other than by sells all or substantially all of its assets; (c) the Corporation participates in any merger, consolidation or similar transaction following the consummation of which, the stockholders of the Corporation that are immediately prior to the consummation of such transaction hold less than 25% of all of the outstanding Common Stock or other securities entitled to elect a person vote for the election of directors of the surviving or resulting entity in such transaction (provided, further that if the Corporation participates in any merger, consolidation or similar transaction following the consummation of which the stockholders of the Corporation immediately prior the consummation of such transaction hold less than 50% but 25% or more of all of the outstanding Common Stock or other securities entitled to fill vote for the election of directors of the surviving or resulting entity in such directorshiptransaction, voting exclusively and as a separate class. The the number of Series A Directors shall be reduced to one); or (d) the holders of record at least a majority of the shares of Common Series A Preferred Stock irrevocably waive and terminate all of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in their rights under this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection Section 4.2.

Election of Directors. The holders of record of Each Stockholder agrees to take all actions necessary to cause the shares of Preferred Stock, exclusively Stockholder Nominees and the Chief Executive Officer to be elected as a separate class, shall be entitled to elect three (3) directors of the CorporationCompany in any and all elections of directors of the Company held during the term of this Agreement and to cause the designees of the parties hereto to the committees of the Board of Directors of the Company as provided in Section 2.2(b) to be duly appointed to such committees. For the avoidance of doubt, until the Expiration Date, TAC agrees to take all actions necessary to cause the Stockholder Nominees nominated by the Lenders Group to be elected as directors of the Company in any and all elections of directors of the Company held during the term of this Agreement and to cause the designees of the Lenders Group to the committees of the Board of Directors of the Company as provided in Section 2.2(b) to be duly appointed to such committees. Without limiting the generality or effect of Section 2.3(a), each Stockholder will vote or cause to be voted for the election of the Stockholder Nominees and the Chief Executive Officer to be elected as directors of the Company in any and all elections of directors of the Company held during the term of this Agreement all Shares entitled to vote in such election that such Stockholder has the power to vote or in respect of which such Stockholder has the power to direct the vote. For the avoidance of doubt, TAC will vote or cause to be voted for the election of the Stockholder Nominees nominated by the Lenders Group to be elected as directors of the Company in any and all elections of directors of the Company held during the term of this Agreement all Shares entitled to vote in such election that TAC has the power to vote or in respect of which TAC has the power to direct the vote. Without limiting the generality or effect of Section 2.3(a), at each meeting of the stockholders of the Company held during the term of this Agreement at which the term of office of any Stockholder Nominee or the Chief Executive Officer (an " Expiring Nominee") expires, each such Expiring Nominee will be nominated for election to another term as a director of the Company and will be included in the slate of nominees recommended to Stockholders for election as directors of the Company in any proxy statement prepared by or on behalf of the Company with respect to such meeting; provided, however, provided that, at if the Stockholder or Stockholders that nominated any time there are Expiring Nominee so specify, or any shares of Series A-1 Preferred Stock issued and outstandingExpiring Nominee declines or is unable to accept the nomination, another individual designated by the Stockholder or Stockholders that nominated such Expiring Nominee, in lieu of the holders of record such Expiring Nominee, will be nominated for election as a director of the shares Company and will be included in the slate of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled nominees recommended to elect three (3) Stockholders for election as directors of the Corporation (Company in any such proxy statement. Without limiting any other provision of this Agreement imposing obligations on transferees generally, it is expressly agreed that the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors voting and related covenants contained in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares this Article II shall bind any transferee of any class or series of stock fail to elect a sufficient number of directors to fill all directorships Stockholder for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence term of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Agreement.

Election of Directors. The holders From the date hereof until the earlier of record (i) the date on which General Atlantic or either of the shares of Preferred Stock, exclusively and as Management Shareholders (each together with their Family Members) holds a separate class, shall be entitled to elect three (3) directors majority of the Corporation; providedCommon Shares, however, that, at any time there are any shares (ii) the date on which the Management Shareholders (together with the members of Series A-1 Preferred Stock issued their respective immediate families and outstanding, in lieu trusts for the benefit of the holders members of record their respective immediate families) each holds less than 10% of the shares of Preferred Stockoutstanding Common Shares or Common Shares and Common Share 30 -28- rights and privileges under this Section 4.1, and the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors obligations of the Corporation (other Shareholders to such Shareholder under this Section 4.1 shall terminate. For the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be second director appointed by GAIL, XXXX xxxl use its best efforts to designate an independent individual knowledgeable in the computer services and/or banking industry. GAIL xxxll have the right to remove its own directors at its sole discretion, and shall have the right to replace one of its own such directors at its sole discretion and the second of its own such directors with the consent of the Management Shareholders, which consent shall not be unreasonably withheld. The Management Shareholders shall have the right to remove their own director or directors (not including the Management Shareholders themselves) at their sole discretion, and shall have the right to replace one of their own such directors at their sole discretion and the second of their own such directors with the consent of GAIL, xxich consent shall not be unreasonably withheld. Each Shareholder shall cooperate fully to fill any vacancies in the Board of Directors as promptly as possible, which vacancies shall be filled in connection accordance with the approval by-laws of the initial issuance Corporation. Upon the death or mental incapacitation of Preferred Stock without a separate action by Management Shareholder, such Management Shareholder shall forfeit his rights and privileges under this Section 4.1, including his right to a seat on the holders Board of Preferred Stock. Any director elected as provided in Directors of the preceding sentences may be removed without cause byCorporation, and only the vacancy created by such forfeiture shall be filled in accordance with the by, the affirmative vote -laws of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholdersCorporation. If a Major Shareholder forfeits his right and privileges under this Section 4.1 because of a decline in his or its ownership or control of Common Shares, nothing herein shall be construed to limit the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled other Major Shareholders shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall otherwise be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2elect.

Election of Directors. The holders (a) In any election of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled Company to elect three (3) directors of the Corporation (the “Preferred Common Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the Stockholders holding shares of Common Stock and shall each vote at any regular or special meeting of any other class stockholders (or series by written consent) all shares of Common Stock then owned by them (or as to which they then have voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled power) to elect the balance of the total number of two (2) directors of the Corporation nominated by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the then outstanding shares of Common Stock, one of which directors shall be the class or series entitled Company’s Chief Executive Officer (the “CEO Director”), provided that if for any reason the CEO Director shall cease to serve as the Company’s Chief Executive Officer, Stockholders holding shares of Common Stock shall promptly vote their respective shares (i) to remove the former Chief Executive Officer from the Board if such person has not resigned as a member of the Board and (ii) to elect such person’s replacement as Chief Executive Officer of the Company as appointed by the Board (excluding such former CEO Director) as the new CEO Director. (b) In any election of directors of the Company to elect the Series A Director, Stockholders holding shares of Series A Preferred Stock shall each vote at any regular or special meeting of stockholders (or by written consent) all shares of Series A Preferred Stock then owned by them (or as to which they then have voting power) to elect one (1) director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled nominated by the holders of a majority of the then outstanding shares of Series A Preferred Stock. (c) In any class election of directors of the Company to elect an Independent Director, the Stockholders shall each vote at any regular or series shall be filled only by vote or written consent in lieu of a special meeting of the holders of such class or series stockholders (or by any remaining director written consent) all Shares then owned by them (or directors elected as to which they then have voting power) to elect two (2) Independent Directors having relevant industry experience relating to the Company’s business nominated by the holders of a majority of the then outstanding shares of Common Stock and Preferred Stock, voting as a single class on an as converted to Common Stock basis. (d) In the absence of any nomination from the persons with the right to nominate a director as specified above, the director or directors previously nominated by such class or series persons and then serving shall be reelected if still eligible to serve as provided herein. (e) To the extent that the application of subsections 2.2(a) through 2.2(d) above shall result in the designation of less than all of the authorized directors, then any remaining directors shall be nominated and elected by the stockholders of the Company entitled to vote thereon in accordance with, and pursuant to this Subsection 4.2to, the Restated Certificate.

Election of Directors. The Subject to the rights of the holders of record Preferred Stock to elect a majority of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, thatCompany’s Board of Directors in certain circumstances as set forth in the Company’s Certificate of Incorporation, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu at which stockholders of the holders of record of Company will have the shares of Preferred Stockright to, or will vote for or consent in writing to, the holders election of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); providedCompany, furtherthen, that for administrative convenienceand in each such event, the initial Preferred Directors may also be appointed Existing Stockholders (including any holder of options and/or warrants who is a party hereto who, subsequent to the date hereof, exercises any such options and/or warrants) and the Purchasers shall vote (or, if applicable, consent with respect to), or direct the Voting Trustee to vote or consent in accordance with the terms of the Voting Trust Agreement, as applicable, all Shares in the Company or other voting securities of the Company presently owned or hereafter acquired by them (whether owned of record or over which any such person exercises voting control) in favor of the following actions: (a) to cause the election to, and maintain as a member of, the Board of Directors in connection with one (1) person designated by JMI or its affiliates, who shall be the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any one (1) director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the issued and outstanding shares of Series A Preferred Stock, voting as a separate class (the class “Series A Preferred Director”), and who shall initially be Xxxx Xxxxxxx; (b) to cause the election to, and maintain as a member of, the Board of Directors one (1) person designated by Bay or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2its affiliates, a vacancy in any directorship filled by the holders of any class or series who shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining one (1) director or directors elected by the holders of a majority of the issued and outstanding shares of Series B Preferred Stock, voting as a separate class (the “Series B Preferred Director”), and who shall initially be Xxxx Xxxxxxx; (c) to cause the election to, and maintain as a member of, the Board of Directors one (1) person designated by Bessemer Venture Partners or its affiliates, who shall be the one (1) director elected by the holders of a majority of the issued and outstanding shares of Series C Preferred Stock, voting as a separate class (the “Series C Preferred Director” and together with the Series A Preferred Director and Series B Preferred Director, the “Preferred Directors”), and who shall initially be Xxxxx Xxxxxx; (d) to cause the election to, and maintain as a member of, the Board of Directors one (1) person who shall be the then current Chief Executive Officer of the Company (“CEO”) as appointed from time to time by the Company’s Board of Directors, who shall be the one (1) director elected by the holders of a majority in interest (as determined by the aggregate number of votes held directly and through the Voting Trustee in accordance with the Voting Trust Agreement) of the issued and outstanding shares of Common Stock and Special Voting Stock (but excluding for the purposes of determining such majority during the period that there are at least 7,051,373 outstanding shares of Preferred Stock, any Conversion Shares) (the “Common Director”), and who shall initially be Xxxxxx Xxxxx; and (e) to cause the election to, and maintain as a member of, the Board of Directors one (1) person not otherwise affiliated with the Company or any Purchaser designated by (i) a majority of the Board of Directors and (ii) the holders of a majority in interest (as determined by the aggregate number of votes held directly and through the Voting Trustee in accordance with the Voting Trust Agreement) of the issued and outstanding shares of Preferred Stock, Common Stock and Special Voting Stock, voting together as a single class or series pursuant to this Subsection 4.2and on an as-converted basis, who is elected by the holders of a majority in interest (as determined by the aggregate number of votes held directly and through the Voting Trustee in accordance with the Voting Trust Agreement) of the issued and outstanding shares of Preferred Stock, Common Stock and Special Voting Stock, voting together as a single class and on an as-converted basis (the “Outside Director”), provided, however, that until an unaffiliated director is elected such seat shall be filled by Xxxxxx Xxxxx.

Election of Directors. The holders (a) For so long as the Blackstone Parties Beneficially Own shares of record Series A Preferred Stock and/or shares of Common Stock that were converted from shares of Series A Preferred Stock that represent at least 25% of the number of shares of Series A Preferred StockStock issued at Closing, exclusively the Board of Directors shall consist of not more than eight (8) members. (b) For so long as the Blackstone Parties Beneficially Own shares of Series A Preferred Stock and/or shares of Common Stock that were converted from shares of Series A Preferred Stock that represent at least 75% of the number of shares of Common Stock Beneficially Owned by the Blackstone Parties on an “as converted basis” as of the Closing, the Blackstone Parties shall have the right to designate for nomination two (2) members of the Board of Directors. The Board of Directors shall recommend that such designees be included in the slate of nominees in the class to be elected or appointed to the Board of Directors at the next (and each applicable subsequent) annual or special meeting of stockholders, subject to such designees’ satisfaction of all applicable requirements regarding service as a separate classdirector of the Company under applicable law, shall be entitled regulation or stock exchange rules regarding service as a director and such other criteria and qualifications for service as a director applicable to elect three (3) all directors of the CorporationCompany and in effect on the date hereof; provided, however, thatthat in no event shall any such designee’s relationship with the Blackstone Parties or their Affiliates (or any other actual or potential lack of independence resulting therefrom) be considered to disqualify such designee from being a member of the Board of Directors pursuant to this Section 4.5. So long as such designees are elected to the Board of Directors by the Company’s stockholders, the directors designated for nomination by the Blackstone Parties under this Section 4.5(b) shall serve the term associated with the class of directors to which such director belongs in accordance with the Certificate of Incorporation. Notwithstanding the foregoing, at any such time there are any as the threshold set forth in this Section 4.5(b) is no longer satisfied, the right of the Blackstone Parties to designate for nomination directors under Section 4.5(b) shall terminate and such directors shall promptly resign (subject to the Blackstone Parties’ ability to designate for nomination a director pursuant to clause (c) below). (c) For so long as the Blackstone Parties Beneficially Own shares of Series A-1 A Preferred Stock issued and outstanding, in lieu and/or shares of Common Stock that were converted from shares of Series A Preferred Stock that represent less than 75% but more than 25% of the holders of record of the shares of Preferred Stock, the holders of record number of shares of Series A-1 Preferred Common Stock Beneficially Owned by the Blackstone Parties on an “as converted basis” as of the Closing, the Blackstone Parties shall have the right to designate for nomination one (1) member of the Board of Directors. The Board of Directors shall recommend that such designee be included in the slate of nominees in the class to be elected or appointed to the Board of Directors at the next (and each applicable subsequent) annual or special meeting of stockholders, subject to such designee’s satisfaction of all applicable requirements regarding service as a director of the Company under applicable law, regulation or stock exchange rules regarding service as a director and such other criteria and qualifications for service as a director applicable to all directors of the Company and in effect on the date hereof; provided, however, that in no event shall such designee’s relationship with the Blackstone Parties of their Affiliates (or any other actual or potential lack of independence resulting therefrom) be considered to disqualify such designee from being a member of the Board of Directors pursuant to this Section 4.5. So long as such designee is elected to the Board of Directors by the Company’s stockholders, the director designated for nomination by the Blackstone Parties under this Section 4.5(c) shall serve the term associated with the class of directors to which such director belongs in accordance with the Certificate of Incorporation. Notwithstanding the foregoing, at such time as the threshold set forth in this Section 4.5(c) is no longer satisfied, the right of the Blackstone Parties to designate for nomination a director under Section 4.5(c) shall terminate and such director shall promptly resign. (d) For so long as the Blackstone Parties have the right to designate directors for nomination pursuant to Section 4.5(b) or (c) above, (1) the Company or the Board of Directors shall (i) cause the Board of Directors to have sufficient vacancies to permit such persons to be added as members of the Board of Directors, (ii) nominate such persons for election to the Board of Directors and (iii) recommend that the Company’s stockholders vote in favor of the persons designated for nomination by the Blackstone Parties in all subsequent stockholder meetings. Nothing in this Section 4.5 shall modify the conditions set forth in Section 1.3(b)(8), (9) and (11). In the event of the death, disability, resignation or removal of any person designated by the Blackstone Parties as a member of the Board of Directors, subject to the continuing satisfaction of the applicable threshold set forth in Section 4.5(b) or (c), as applicable, the Blackstone Parties may designate a person to replace such person and the Company shall cause such newly designated person to fill such resulting vacancy. So long as any person designated by the Blackstone Parties to serve as a member of the Board of Directors is eligible to be so designated in accordance with this Section 4.5, the Company shall not take any action to remove such person as such a director without cause without the prior written consent of the Blackstone Parties. Subject to compliance with applicable laws, regulations or stock exchange rules, each of the Blackstone Parties’ designees to the Board of Directors shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); providedserve on, further, that for administrative convenience, the initial Preferred Directors may also be appointed by and the Board of Directors in connection with the approval shall appoint such designee to, any committee or committees of the initial issuance Board of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as Directors upon which such designee may wish to serve; provided in the preceding sentences may be removed without cause by, and that only by, the affirmative vote one of the holders Purchaser’s designees may serve on the Search Committee; (2) each of the shares Blackstone Parties designees for the Board of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, Directors shall be entitled to elect compensation consistent with the balance compensation received by other members of the total number Board of directors Directors, including any fees and equity awards, and reimbursement for reasonable out-of-pocket expenses incurred in attending meetings of the Corporation by vote Board of Directors and its committees; provided that such compensation shall be paid to the Purchaser or its designee(s); and (3) as of the Closing, the Board of Directors shall take all necessary and appropriate action to form and maintain a majority special committee of such shares. At any meeting held the Board of Directors (the “Search Committee”), consisting of three directors (at least one of whom shall always be a designee of the Purchaser), with the sole power and authority to identify, consider, assess, evaluate, research and recommend individual nominees for the purpose position of electing chief executive officer (or similar position, if the position of chief executive officer ceases to exist); provided that any such recommendation requires the unanimous consent of the members of the Search Committee and provided further that the Board of Directors shall not appoint a directorchief executive officer (or similar position, if the position of chief executive officer ceases to exist) without the recommendation of the Search Committee; notwithstanding anything to the contrary, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided obligations set forth in this Subsection 4.2, a vacancy in any directorship filled by Section 4.5(d)(3) shall terminate twenty-four (24) months from the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Closing Date.

Election of Directors. The holders (a) In any election of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; providedCompany to elect the Common Director, however, that, Stockholders holding shares of Common Stock shall each vote at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class regular or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose (or pursuant to a by written consent of stockholders. If the holders of consent) all shares of any class Common Stock then owned by them (or series of stock fail as to which they then have voting power) to elect a sufficient number of directors to fill all directorships (i) one (1) director nominated by Xxxxxxxxxx Xxxxxxxxx for which they are entitled to elect directors, voting exclusively and so long as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record Mr. Kishinsky owns at least 50% of the shares of Common Stock and of any other class or series of voting stock the Company currently held by Mr. Kishinsky (including any shares of the Preferred Stock)Common Stock issued or issuable upon conversion of the Series Seed Stock currently held by Mr. Kishinsky and shares of Common Stock purchased by Mr. Kishinsky under that certain Stock Purchase Agreement dated June __, exclusively 2012) and voting together as (ii) the Company’s Chief Executive Officer, provided, however, if Mr. Kishinsky elects the Company’s Chief Executive Officer to be a single classdirector pursuant to Section 2.2(a)(i) of this Agreement, on an as converted basis, then no director shall be appointed to pursuant to this Section 2.2(a)(ii) and Stockholders holding shares of Common Stock shall only be entitled to elect one (1) director, provided, further, that if for any reason the balance director serving pursuant to the terms of this Section 2.2(a)(ii), if any, shall cease to serve as the Company’s Chief Executive Officer, Stockholders holding shares of Common Stock shall promptly vote their respective shares (A) to remove the former Chief Executive Officer from the Board if such person has not resigned as a member of the total number Board and (B) to elect such person’s replacement as Chief Executive Officer of the Company as appointed by the Board (excluding such former Common Director) as a new Common Director. The Common Director appointed pursuant to Section 2.2(a)(i) of this Agreement shall initially be Xxxxxxxxxx Xxxxxxxxx. (b) In any election of directors of the Corporation by Company to elect the Series A Director, Stockholder(s) holding shares of Series A Stock shall each vote at any regular or special meeting of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person stockholders (or by proxy written consent) all shares of the holders of a majority of the outstanding Series A Stock then owned by them (or as to which they then have voting power) to elect two (2) directors nominated by Voxeo Europe Limited or its affiliates (“Aspect”) for so long as such Investor owns any shares of the class Common Stock issued or series issuable upon conversion of the Series A Stock purchased by such Investor pursuant to the Purchase Agreement (as adjusted for stock splits, stock dividends, combinations, recapitalizations or the like), provided, however, if at any time the Stockholders holdings shares of Common Stock are entitled to elect such one (1) director pursuant to Section 2.2(a) of this Agreement, then Stockholder(s) holding shares of Series A Stock shall constitute a quorum for the purpose of electing such also only be entitled to elect one (1) director. Except The Series A Director shall initially be [____]. (c) In any election of directors of the Company to elect the Mutual Director, the Stockholders shall each vote at any regular or special meeting of stockholders (or by written consent) all Shares then owned by them (or as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by to which they then have voting power) to elect one (1) Mutual Director who is acceptable to all of the holders other members of the Board. (d) In the absence of any class or series shall be filled only by vote or written consent in lieu of nomination from the persons with the right to nominate a meeting of director as specified above, the holders of such class or series or by any remaining director or directors previously nominated by such persons and then serving shall be reelected if still eligible to serve as provided herein. (e) To the extent that the application of subsections 2.2(a) through 2.2(d) above shall result in the designation of less than all of the authorized directors, then any remaining directors shall be nominated and elected by the holders stockholders of such class or series the Company entitled to vote thereon in accordance with, and pursuant to this Subsection 4.2to, the Certificate of Incorporation.

Election of Directors. The holders (a) At all times before (i) the Company effects its initial public offering pursuant to the Securities Act of record 1933, as amended (the "Act"), and, (ii) for so long as GEPT shall be the beneficial owner of any Series B Preferred Stock or Common Stock issued upon conversion of the shares of Preferred Stock, exclusively and as a separate class, Hunter shall be entitled to elect three (3i) directors vote all of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the his shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy to cause the Company not to increase the size of the holders Board of Directors of the Company without the consent of GEPT and (ii) vote all his shares of Common Stock in person or by proxy for the election of one person designated by GEPT to serve as director. IF GEPT fails to designate a person for election as director in any specific election, Hunter agrees to vote all of his shares to re-elect the person previously designated by GEPT. GEPT shall have the right, upon written request to Hunter, to require Hunter to request that the Company call a special meeting of shareholders at any time and from time to time, for the sole purpose of removing from the Board of Directors of the Company, such director originally designated by it, and in such event, Hunter shall vote all of his Common Stock in person or by proxy to effect the removal from the Board of Directors of the Company of the person designated for such removal from the Board of Directors by GEPT and to elect as director of the Company the person designated by GEPT as replacement thereof. Hunter agrees that for so long as the provisions of this Section 1(a) are effective, he will not transfer his Common Stock without requiring the transferee to be bound to the provisions of this Section 1(a). The Company agrees that it will not issue after the date hereof, any new voting securities without first obtaining the written consent of the purchaser or transferee of such voting securities to be bound by the terms hereof, as if a party hereto, if as a result of such issuances of voting securities, the aggregate shares of voting securities owned by Hunter would represent less than a majority of the outstanding shares voting securities of the class or series entitled Company. (b) At any time after (i) the Company effects its initial registered public offering pursuant to elect such director the Act, and, (ii) for so long as GEPT shall constitute a quorum for be the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders beneficial owner of any class Preferred Stock or series shall be filled only by vote or written consent in lieu of a meeting Common Stock issued upon the conversion of the holders Preferred Stock, the Company (a) will nominate and recommend as candidate for election to the Board of Directors of the Company one person designated by GEPT and reasonably acceptable to the Board of the Company (the "Designee") and (b) will not increase the size of the Board of Directors of the Company without the consent of GEPT, which consent shall not be unreasonably withheld. If at any time such class Designee is not a member of the Board of Directors of the Company, (i) the Company will notify such Designee, concurrently with notice given to members of the Board of Directors of the Company, of all meetings of the Board of Directors, and, as soon as available, will provide to such Designee all reports, financial statements or series other information distributed to the Board of Directors of the Company, (ii) the Company will permit such Designee to attend all such meetings of the Board of Directors as an observer and to participate as an elected member with all rights of an elected member, voting excepted, and (iii) the Company will permit GEPT, or any person designed by GEPT in writing to be acting on its behalf, to visit and inspect any remaining director or directors elected by of the holders properties of the Company and to discuss the affairs, finances and accounts of the Company with the principal officers and the auditors of the Company, all at such class or series pursuant to this Subsection 4.2reasonable time during business hours and as often as GEPT may reasonably request.

Election of Directors. The Board of Directors shall consist of seven (7) members. 3.2.1 The holders of record of the shares of Series B Preferred Stock, voting exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation (the “Series B Directors”). 3.2.2 The holders of record of shares of Series C Preferred Stock, voting exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation (the “Series C Directors”, and together with the Series B Directors, the “Preferred Directors”). 3.2.3 Together, the holders of Preferred Stock and Common Stock, voting as a single class on an as-converted basis, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. . 3.2.4 Any director elected as provided in the preceding sentences Subsections 3.2.1, 3.2.2 or 3.2.3 may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class stock entitled to elect such director or series of stock directors pursuant to Subsections 3.2.1, 3.2.2 or 3.2.3 fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to Subsections 3.2.1, 3.2.2 or 3.2.3, as the first sentence of this Subsection 4.2case may be, then any directorship not so filled shall remain vacant until such time as the such holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorshipdirectorship pursuant to Subsections 3.2.1, 3.2.2 or 3.2.3, as the case may be, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2.4, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.4. The rights of the holders to elect directors pursuant to Subsection 3.2.1 shall terminate on the first date following the Series E Original Issue Date (as defined below) on which there are issued and outstanding less than 2,000,000 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock), after which the directors otherwise to be elected pursuant to Subsection 3.2.1 shall be elected by the holders of record of the Preferred Stock and Common Stock, voting together as a single class on an as converted basis. The rights of the holders to elect directors pursuant to Subsection 3.2.2 shall terminate on the first date following the Series E Original Issue Date on which there are issued and outstanding less than 2,000,000 shares of Series C Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series C Preferred Stock), after which the directors otherwise to be elected pursuant to Subsection 3.2.2 shall be elected by the holders of record of the Preferred Stock and Common Stock, voting together as a single class on an as-converted basis.

Election of Directors. The holders (a) Each Stockholder (excluding the Xxxxx Stockholders) shall vote all of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the its shares of Common Stock and of any other class voting securities of the Company over which such Stockholder has voting control and shall take all other necessary or series of voting stock desirable actions within such Stockholder’s control (including the Preferred Stock), exclusively and voting together whether in such Stockholder’s capacity as a single classstockholder, on an as converted basisdirector, shall be entitled to elect the balance member of a board committee or officer of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a directorCompany or otherwise, the presence and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or bylaws), and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board, stockholder meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws), so that: (i) the authorized number of directors on the Board shall be established by the Xxxxx Stockholders; (ii) G. Xxxxxx Xxxxx shall be elected to the Board for so long as he remains the chief executive officer of Logan’s and, following such time as G. Xxxxxx Xxxxx ceases to be the chief executive officer of Logan’s, the then current chief executive officer of Logan’s shall be elected to the Board; (iii) the remainder of the directors, which will be designated by KIA VIII, shall be elected to the Board; (iv) the composition of the board of directors of each of the Company’s subsidiaries (a “Subsidiary Board”) shall be determined only upon the approval of the Board; (v) any committees of the Board or a Subsidiary Board shall be created only upon the approval of the Board; (vi) the removal from the Board or a Subsidiary Board (with or without cause) of any representative designated pursuant hereto by the Xxxxx Stockholders shall be at the Xxxxx Stockholders’ written request, but only upon such written request and under no other circumstances; and (vii) in the event that any representative designated pursuant hereto by KIA VIII for any reason ceases to serve as a member of the Board or a Subsidiary Board during his or her term of office, the resulting vacancy on the Board or the Subsidiary Board shall be filled by a representative designated by KIA VIII. (b) If KIA VIII fails to designate a representative to fill a directorship pursuant to the terms of this Section 8, the election of a person to such directorship shall be accomplished in accordance with the Company’s by-laws and applicable law. (c) In order to secure each Management Stockholder’s obligation to vote its shares of Common Stock and other voting securities of the Company in accordance with the provisions of Section 8 hereof, each Management Stockholder hereby appoints KIA VIII as its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of such Person’s shares of Common Stock and other voting securities of the Company for the election and removal of directors and all such other matters as expressly provided for in this Section 8. KIA VIII may exercise the irrevocable proxy granted to it hereunder at any time any Management Stockholder fails to comply with the provisions of this Section 8. The proxies and powers granted by each Management Stockholder pursuant to this paragraph (c) are coupled with an interest and are given to secure the performance of the obligations under this Agreement. Such proxies and powers will be irrevocable until the termination of this Agreement and will survive the death, incompetency and disability of each Management Stockholder and the holders of a majority each of the outstanding his or her respective shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Common Stock.

Election of Directors. The holders of record of the outstanding shares of Series A Preferred StockStock shall, exclusively and voting together as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors Directors of the Corporation (the “Preferred "Series A Directors”"); provided, further, that for administrative convenience, the initial Preferred . Such Directors may also shall be appointed elected by the Board of Directors in connection a plurality vote with the approval elected candidates receiving the greatest number of the initial issuance affirmative votes (with each holder of Series A Preferred Stock without entitled to cast one vote for a separate action by candidate for the directorships reserved for the holders of Series A Preferred Stock with respect to each share of Series A Preferred Stock held by such holder) of the outstanding shares of Series A Preferred Stock, with votes withheld having no legal effect. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the The holders of the outstanding shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directorsSeries A Preferred Stock shall, voting exclusively and together as a separate class, pursuant be entitled to remove any of the first sentence Series A Directors, with or without cause. The election and removal of this Subsection 4.2, then any directorship not so filled such Directors shall remain vacant until such time as occur (i) at the annual meeting of holders of capital stock, (ii) at any special meeting of holders of capital stock, (iii) at any special meeting of holders of Series A Preferred Stock called by holders of a majority of the outstanding shares of Series A Preferred Stock or (iv) by the written consent of holders of the outstanding shares of Series A Preferred Stock entitled to vote for such series or class Directors in the manner and on the basis specified above. If at any time when any share of stock elect Series A Preferred Stock is outstanding any such Director ceases to be a person to fill such directorship Director for any reason, the vacancy shall only be filled by the vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of Series A Preferred Stock, voting together as a separate class, in the class manner and on the basis specified above or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the law. The holders of outstanding shares of Series A Preferred Stock shall also be entitled to vote in the election of all other Directors of the Corporation together with holders of all other shares of the Corporation's outstanding capital stock entitled to vote thereon, voting as a single class, with each outstanding share of Series A Preferred Stock entitled to the number of votes specified in Section A.2(b). The holders of outstanding shares of Series A Preferred Stock may, in their discretion, determine not to elect one or more Directors as provided herein from time to time, and during any class or series such period the Board of Directors nonetheless shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2deemed duly constituted.

Election of Directors. The (a) At each annual meeting of the Company’s Stockholders or at each special meeting of the Company’s Stockholders involving the election of directors, and at any other time at which the holders of record capital stock in the Company have the right to or will vote for or render consent in writing regarding the election of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; providedCompany, howeverthen and in each event, that(i) the Company hereby covenants and agrees to cause to be nominated for election to the Board of Directors, at any time there are any and use best efforts to cause to be elected, and (ii) the Stockholders hereby covenant and agree to vote all shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be that they are entitled to vote, as follows: to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that one individual designated for administrative convenience, the initial Preferred Directors may also be appointed by election to the Board of Directors by 3i QPEL (the “3i QPEL Director”) and to elect one individual designated for election to the Board of Directors by the BFI Group (the “BFI Director” and each of the 3i QPEL Director and the BFI Director a “Designated Director”), in connection each case in accordance with this Article VI. No Stockholder shall grant to any Person a proxy to vote such Stockholder’s shares of capital stock of the Company unless such Person signs a statement expressly agreeing to vote such shares in accordance with this Article VI. The identity of the 3i QPEL Director shall be determined by 3i QPEL in its sole discretion and the identity of the BFI Director shall be determined by BFI in its sole discretion; provided, that (i) Bendheim shall be the Designated Director of the BFI Group until his death, disability or retirement from his position as the BFI Director, (ii) no such Designated Director shall be disqualified from serving as a director under applicable law or the rules or guidelines of AIM or any exchange on which Stock shall be listed or market on which quoted, and (iii) no such Designated Director shall be the director of any business that competes or reasonably expects to compete with the approval business of the initial issuance of Preferred Stock without Company. If a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only byDesignated Director resigns or is removed, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled resulting vacancy shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders the election or appointment of a director nominated by the Stockholder that designated such Designated Director, and until the first to occur of the Corporation other than filling of such vacancy or the expiration of 15 days, or except to the extent the designating Stockholder shall grant a waiver, the Board of Directors will not transact any business or exercise any powers until such vacancy is filled except to elect or appoint the replacement Designated Director in accordance with the instructions received from 3i QPEL or BFI, as the case may be, and to preserve the business and assets of the Company in the ordinary course of business. No Stockholder shall vote any of its shares of capital stock of the Company to remove a Designated Director except to the extent instructed to do so by the stockholders of Stockholder designating the Corporation that are entitled to elect a person to fill such directorship, voting exclusively Designated Director. (b) 3i QPEL and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, BFI each shall also be entitled to elect designate for election one director for election to the balance of the total number board of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy each subsidiary of the holders Company (other than any subsidiary for which by law or agreement with a third party the Company has only one designee on the Board or one non-local designee) in the manner contemplated by subsection (a) above; provided that such director designated for subsidiaries shall be required to be available to the Chairman of a majority the Board on the same basis as directors designated by such of 3i QPEL and BFI as shall be the Majority Stockholder (except local directors of non-U.S. subsidiaries). (c) The members of the Stockholder Group as shall own more of the outstanding shares Common Stock than the other Stockholder Group shall have the right, as between or among the Stockholder Groups, to designate the Chairman of the class Board of Directors. Upon the death, disability or series entitled retirement of Bendheim from his position as the BFI Director, BFI shall designate a successor to elect such director serve in Bendheim’s place on the Board of Directors (who shall constitute a quorum to the extent practicable be the individual that has effective control of BFI from time to time). Subject to Section 6.1, nominations for election to the purpose Board of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled Directors shall be determined by the holders entire Board of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Directors.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued Corporation and outstanding, in lieu of the holders of record of the shares of Preferred Class A Common Stock and Class B Common Stock, the holders of record of shares of Series A-1 Preferred Stock exclusively and voting together as a single class, shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); providedor, furtherif applicable, that for administrative convenience, the initial Preferred Directors such greater number of directors as may also be appointed provided by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockSubsection 3.2.2. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series A Preferred Stock or series of stock Class A Common Stock and Class B Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2.1, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series A Preferred Stock or class of stock Class A Common Stock and Class B Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Class A Common Stock and Class B Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock), exclusively and voting together as a single class, class on an as as-converted to Class A Common Stock basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2directors.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Series A Director”), the holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation (the “Series B Directors”), the holders of record of the shares of Series C Preferred Stock and Series C-1 Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; providedCorporation (the “Series C/C-1 Directors ”), however, that, at any time there are any and the holders of record of shares of Series A-1 B Preferred Stock, Series C Preferred Stock issued and outstandingSeries C-1 Preferred Stock shall be entitled to elect one (1) director, in lieu with such director subject to the approval of the holders of record of the shares of Preferred Stock, the holders of record of shares of Common Stock and Series A-1 A Preferred Stock shall be entitled to elect three (3) directors of the Corporation voting together as a single class (the “Preferred DirectorsIndependent Director”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series A Preferred Stock, Series B Preferred Stock or series of stock Series C Preferred Stock and Series C-1 Preferred Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series A Preferred Stock, the Series B Preferred Stock or class of stock the Series C Preferred Stock and Series C-1 Preferred Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock, and Series C-1 Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by who are not the Series A Director, Series B Directors, Series C/C-1 Directors or the Independent Director (the “Common Independent Directors”); provided that, if any Common Independent Director or any Affiliate (as defined below) of any Common Independent Director holds any shares of Preferred Stock, such vote of such Common Independent Director shall not count on any matters relating to or in connection with a majority Sale of such sharesthe Company as defined in that certain Fourth Amended and Restated Voting Agreement by and among the Corporation and those parties named therein, dated as of the date hereof and as amended from time to time. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors a director of the Corporation (the “Preferred DirectorsSeries B Director”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed with or without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series B Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series B Preferred Stock, the remaining Series B Director in office, if any (which appointment shall be subject to removal by the Series B Preferred Stock holders as provided herein) or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meetingmeeting or as may be appointed pursuant to a voting or similar agreement of the parties; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series B Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2. The rights of the holders of the Series B Preferred Stock and the rights of the holders of the Common Stock under the first sentence of this Subsection 3.2 shall terminate on the first date following the Series B Original Issue Date (as defined below) on which there are issued and outstanding less than 20,000 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock). All references herein to matters, events or actions that require consents or approvals or the exercise of a veto right of the “Series B Director” or of the “Board, including the Series B Director” or similar terms, shall require the affirmative consent in writing of the Series B Director for such consent or approval (or, if not affirmatively approved in writing by the Series B Director shall be deemed vetoed or denied) and, in the event that no Series B Director is in office, then such consent, approval or exercise of veto right shall require affirmative consent of holders of a majority of the outstanding Series B Preferred Stock (or, if not so approved, shall be deemed vetoed or denied). At any time that veto right or requirement to consent to a matter is not obtained such matters shall be deemed not to have been approved or authorized by the Corporation. The rights provided by this Subsection 3.2 and all related rights in this Certificate, may be waived only if waived in writing by the Series B Director.

Election of Directors. The Unless otherwise required by the Certificate of Incorporation, the election of directors shall not be by ballot unless the person presiding at such meeting shall so direct or any shareholder, present in person or by proxy and entitled to vote thereon, shall so demand. If authorized by the Board of Directors, such requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder or proxy holder. Unless otherwise required by law, the Certificate of Incorporation, or these by-laws, the election of directors shall be decided by a majority of the votes cast at a meeting of the stockholders by the holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be stock entitled to elect three (3) directors of vote in the Corporationelection; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu if the Chairman of the holders Board determines that the number of record nominees for director exceeds the number of directors to be elected, directors shall be elected by a plurality of the votes of the shares represented in person or by proxy at any meeting of Preferred Stockstockholders held to elect directors and entitled to vote on such election of directors. For purposes of this Section 2.09(b), a majority of the votes cast means that the number of shares voted “for” a nominee must exceed the votes cast “against” such nominee’s election. If a nominee for director who is not an incumbent director does not receive a majority of the votes cast, the holders nominee shall not be elected. The Board of record of shares of Series A-1 Preferred Stock shall be entitled Directors has established procedures under which a director standing for reelection in an uncontested election must tender a resignation conditioned on the incumbent director’s failure to elect three (3) directors receive a majority of the votes cast. In the event of an uncontested election of directors, if an incumbent director who is standing for re-election does not receive a majority of the votes cast, the independent members of the Board of Directors, in accordance with the procedures established by the Board of Directors, shall decide whether or not to accept such resignation within ninety (90) days after the date the results of the election are certified and the Corporation shall promptly disclose and explain such decision in a document furnished or filed with the United States Securities and Exchange Commission (the “Preferred DirectorsSEC”); provided. The independent members of the Board of Directors in making their decision, furthermay consider any factors or other information that they consider appropriate and relevant, that including the recommendation of a committee established for administrative conveniencethe purposes thereof. The director who tenders their resignation shall not participate in the decision of the Board of Directors or the recommendation of any committee with respect to their resignation. If such director’s resignation is rejected by the Board of Directors, such director shall continue to serve until the initial Preferred Directors may also be appointed next annual meeting and until their successor is duly elected, or their earlier resignation or removal. If a director’s resignation is accepted by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent this Article II, Section 9(b), then the Board of stockholders. If the holders of shares of Directors, in its sole discretion, may fill any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, resulting vacancy pursuant to the first sentence provisions of this Subsection 4.2Article III, then any directorship not so filled shall remain vacant until such time as Section 3.03 or may decrease the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders size of the Corporation other than by the stockholders Board of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series Directors pursuant to this Subsection 4.2the provisions of Article III, Section 3.02.

Election of Directors. The holders of record For so long as any shares of the shares Convertible Preferred Stock remain issued and outstanding, the holders thereof, voting separately as a class, shall have the right to elect one director to serve on the Company's Board of Directors. The Company shall cause to be nominated as a candidate for such director position any person that, at least 60 calendar days before any meeting (i) is designated in writing by a holder of Convertible Preferred Stock, exclusively (ii) who agrees in writing to serve if elected and (iii) who provides the Company with a reasonable description of his personal and business background and qualifications to serve as a separate director of the Company; PROVIDED, HOWEVER, that the Company may refuse to cause any person to be so nominated if, based on a review of such person's qualifications, the Board of Directors reasonably concludes that such person is unfit to serve as director of the Company. From and after such appointment (i) such director shall serve until the next annual meeting of the shareholders of the Company and until his successor has been elected and qualifies and (ii) at each annual meeting of the shareholders of the Company, the Convertible Preferred Stock, voting as a single class, shall be entitled to elect three (3) directors one director of the Corporation; provided, however, that, at any time there are any shares Company. Cumulative voting by holders of Series A-1 Convertible Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by is prohibited. Any vacancy on the Board of Directors in connection with caused by the approval death or resignation of a director so elected or appointed shall be filled at the next annual meeting of the initial issuance shareholders of Preferred Stock without a separate action the Company, PROVIDED, HOWEVER, that the Board of Directors shall promptly appoint to fill such vacancy any qualified person designated in writing by the holders of more than 50% of the then outstanding Convertible Preferred Stock. Any The term of office of the director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of designated by the holders of the Convertible Preferred Stock will terminate immediately upon there being no shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Convertible Preferred Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2outstanding.

Election of Directors. The holders of record of From and after the shares of Preferred StockClosing Date, exclusively and as a separate class, Seller shall be entitled to elect three nominate two (32) directors individuals for election to the Keebler Board of the Corporation; Directors, provided, however, that, that if Seller (together with its Affiliates) ceases to beneficially own at any time there are any least 6,879,000 shares of Series A-1 Preferred Keebler Stock issued and outstandingon a fully-diluted basis, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock Seller shall only be entitled to elect three nominate one (31) directors individual for election to the Keebler Board of the Corporation (the “Preferred Directors”); Directors pursuant to this Section 12.1, and provided, further, that if Seller (together with its Affiliates) ceases to beneficially own at least 2,866,250 shares of Keebler Stock on a fully-diluted basis, Seller shall no longer be entitled to nominate an individual to the Keebler Board of Directors pursuant to this Section 12. 1. Purchaser agrees to vote, in person or by proxy, or to enter into written consents in respect of, all of the Keebler Stock owned by Purchaser at any annual or special meeting of the stockholders of Keebler called for administrative conveniencethe purpose of voting on the election of Directors or by consensual action of stockholders without a meeting with respect to the election of Directors, in favor of the initial Preferred election of the individuals nominated by Seller in accordance with this Section 12. 1. At all times Seller shall have the right to recommend the removal, with or without cause, of such Directors and the nomination of a replacement therefor. At such time as Seller (together with its Affiliates) becomes the beneficial owner of less than 6,879,000 shares of Keebler Stock, on a fully-diluted basis, Seller shall cause one of the Directors nominated by it and then serving on the Keebler Board of Directors pursuant to this Section 12.1 to tender his or her resignation. At such time as Seller (together with its Affiliates) becomes the beneficial owner of less than 2,866,250 shares of Keebler Stock, on a fully diluted basis, Seller shall cause each of the Directors nominated by it and then serving on the Keebler Board of Directors pursuant to this Section 12.1 to tender his or her resignation. Only Keebler Stock owned by Seller on the date hereof shall be counted for purposes of determining whether Seller (together with its Affiliates) holds the requisite percentages to be entitled to nominate Directors. In addition, for so long as Seller is entitled to nominate at least one Director, it may also be appointed by designate one of its nominees to sit on each committee of the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect unless such director or directors, given either at a special meeting of is prohibited from sitting on such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If committee under the holders of shares rules of any class applicable stock exchange or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2regulatory authority.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation (the “Series A Directors”), the holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; providedCorporation (the “Series B Directors”), however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Series C Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred DirectorsSeries C Director”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by ) and the holders of Preferred record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Common Director”). Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a A vacancy in any directorship filled by the holders of any class or series shall may be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders 2.1 Each Stockholder agrees to vote all of record of the shares of Preferred Stock, exclusively such person's Shares and as a separate class, shall be entitled take all other actions reasonably necessary to elect three ensure that two (32) directors of the Corporation; provided, however, that, at any time there Company are any shares the designees of Series A-1 Preferred Stock issued Matrix (the "Matrix Directors") and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three that two (32) directors of the Corporation Company are the designees of the DermaPlus (the “Preferred "DermaPlus Directors”"); provided, further, that for administrative convenience, the initial Preferred Directors may also . The fifth director shall be appointed chosen by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; Matrix and no such directorship may be filled by stockholders DermaPlus (and its permitted transferee) own collectively less than 50% of the Corporation other than issued and outstanding shares of common stock entitled to vote for directors. Upon the occurance of this event the parties hereto shall be free to vote for any candidate for Director without regard to the nominating party. 2.2 The Company will pay the reasonable expenses incurred by the stockholders each of the Corporation that are entitled directors in attending meetings of the board or of committees thereof, in connection with attending such meetings. So long as any directors designated pursuant to elect a person to fill such directorship, voting exclusively and this Section 2 serves as a separate classdirector of the Company and for three (3) years thereafter, the Company shall maintain directors' and officers' liability insurance coverage in amounts appropriate for a company of this size and nature, provided however that the Board of Directors may waive this provision for any period by unanimous vote. The holders Company's Certificate and Bylaws shall provide for indemnification and exculpation of record directors to the fullest extent permitted by applicable law. 2.3 The provisions of this Section 2 shall be binding upon, and inure to the benefit of, the successors in interest of the Stockholders to any of the shares of Common Stock held by the Stockholders and references to the "Stockholders" herein shall be deemed to also refer to their respective successors in interest. The Company shall not permit the transfer of any shares of Common Stock on its books or issue a new certificate representing any shares of Common Stock unless and until the person to whom such security is to be transferred shall have executed an agreement or instrument pursuant to which such person agrees to be bound by all the provisions of this Section 2, in addition to any other class or series requirements contained in this Agreement. The shares of voting stock (including the Preferred Stock)Common Stock shall an appropriate legend to reflect these restrictions, exclusively and voting together as a single class, on an as converted basis, shall be entitled in addition to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person other legends required hereunder or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2other applicable law.

Election of Directors. The On all matters relating to the election and removal of directors of the Company, the Key Holders and the Investors agree to vote all Key Holder Shares and Investor Shares held by them (or the holders thereof shall consent pursuant to an action by written consent of the holders of record capital stock of the shares Company) so as to elect members of Preferred the board of directors of the Company (the “Board”) as follows: At each election of or action by written consent to elect directors in which the holders of Series A Stock, exclusively and voting as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directorsa director of the Company, the Investors shall vote all of their respective Investor Shares so as to elect one (1) individual designated by [Foundry] (“Foundry”), which individual shall initially be ● . Any vote taken to remove any director elected pursuant to this Section 1.2(a), or to fill any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 1.2(a), shall also be subject to the provisions of this Section 1.2(a). Upon the request of any party entitled to designate a director as provided in this Section 1.2(a), each Investor agrees to vote its Investor Shares for the removal of such director. At each election of directors in which the holders of Common Stock, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a directorCompany, the presence in Key Holders shall vote all of their respective Key Holder Shares so as to elect (i) the person or serving as Chief Executive Officer of the Company, which individual shall initially be ● , and (ii) one (1) individual designated by proxy of the holders of a majority of the outstanding shares of Key Holder Shares held by Key Holders then providing services to the class Company as officers or series entitled employees, if any. Any vote taken to elect such remove any director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Section 1.2(b), or to fill any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 1.2(b), shall also be subject to the provisions of this Section 1.2(b). In the event that the person serving as the director to be elected as set forth in this Section 1.2(b)(i) ceases to serve as the Chief Executive Officer of the Company, each Key Holder agrees to vote its Key Holder Shares for the removal of such director at the request of a majority of the members of the Board excluding the director to be removed.

Election of Directors. (a) The holders Company represents and warrants that there is one vacancy on the Board of record Directors. Effective as of the shares Closing, the Board of Preferred Stock, exclusively and as a separate class, Directors shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of appoint one Purchaser Director designated by the holders of record a majority of the Preferred Stock to fill the current vacancy and the Purchasers shall designate one person to serve as the Purchaser Observer. The Purchaser Director shall be appointed to each committee of the Board of Directors. The Purchaser Observer shall execute a confidentiality agreement with the Company in form and substance reasonably acceptable to the Company. (b) So long as the Purchasers and the Permitted Transferees hold at least 20% of the Underlying Common Stock, the holders of a majority of the Preferred Stock shall continue to have the right to nominate one person who shall be included among the Company's nominees for election to the Board as the Purchaser Director and, so long as they own at least 20% of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock Purchasers shall be entitled have the right to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a designate one person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and serve as a separate classPurchaser Observer. The holders of record of Company shall nominate each person so designated as Purchaser Director and shall use reasonable efforts to have the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy nominee of the holders of a majority of the outstanding shares Preferred Stock elected to the Board of the class or series Directors. (c) If at any time holders of Preferred Stock entitled to elect such nominate a director notify the Board of Directors of their wish to remove any incumbent Preferred Director as a director, that incumbent Preferred Director shall constitute a quorum for immediately resign from the purpose Board or the Board shall vote to remove the Purchaser Director (if his or her removal is permitted under the Bylaws and the DGCL). Removal of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled an incumbent Preferred Director by the holders Board or the resignation of any class or series shall be filled only by vote or written consent in lieu of a meeting an incumbent Purchaser Director otherwise than at the request of the holders of such class a majority of the Preferred Stock require their prior written consent unless the removal is based upon the Purchaser Director's willful misconduct or series gross negligence. (d) If at any time a vacancy is created on the Board by reason of the incapacity, death, removal or by any remaining director or directors elected by resignation of an incumbent Purchaser Director, the holders of such class a majority of the Preferred Stock may designate a person to fill the vacancy (who promptly shall be appointed by the incumbent directors). If at any time an incumbent Purchaser Observer is unable to serve in that capacity by reason of his or series her incapacity, death or resignation, the Purchasers may designate a person to fill the vacancy or may leave the position unfilled. (e) At each meeting of stockholders of the Company at which directors are elected, the nominees for directors proposed by the Company shall include the Preferred Director required pursuant to this Subsection 4.2Agreement.

Election of Directors. The holders (a) From and after the Effective Time, Stockholder shall have the right, but not the obligation, to designate each director to be nominated, elected or appointed to the Board of record Directors of the shares Company (each, a “Stockholder Designee” and collectively, the “Stockholder Designees”), regardless of Preferred Stock(i) whether such Stockholder Designee is to be elected to the Board of Directors of the Company (the “Board”) at a meeting of stockholders called for the purpose of electing directors (or by consent in lieu of meeting) or appointed by the Board in order to fill any vacancy created by the departure of any director or increase in the authorized number of members of the Board or (ii) the size of the Board. (b) For so long as Stockholder has the right under Section 1(a) to designate Stockholder Designees, exclusively the Company shall take all Necessary Action to cause each Stockholder Designee to be so nominated, elected or appointed to the Board, including (as applicable) (i) ​ submitting each Stockholder Designee to the Company’s stockholders as the Company’s nominee for election at a meeting of the Company’s stockholders, (ii) recommending that such Stockholder Designee be elected by the Company’s stockholders and (iii) soliciting proxies or consents in favor thereof. In the event that any Stockholder Designee shall fail to be elected or appointed to the Board pursuant to the preceding sentence, the Company shall (at the written request of Stockholder) take all Necessary Action to cause an alternative Stockholder Designee to be elected or appointed to the Board, as soon as possible. For so long as Stockholder has the right to designate Stockholder Designees pursuant to Section 1(a), Stockholder may, at any time and from time to time, designate a separate classreplacement director therefor, who shall be entitled to elect three elected or appointed in accordance with Section 1 of this Agreement and who shall be deemed a “Stockholder Designee” for purposes of this Agreement. (3c) directors The parties hereto acknowledge and agree that the members of the CorporationBoard are subject to removal pursuant to the applicable provisions of the Delaware General Corporation law, the Certificate of Incorporation of the Company, and the bylaws of the Company (as may be amended and/or amended and restated from time to time in accordance with the terms thereof, the “Company Bylaws”); provided, however, that, at that the Company shall refrain from taking any time there are actions to cause any shares Stockholder Designee to be removed without cause except with the written consent of Series A-1 Preferred Stock issued Stockholder. (d) Xxxxxxxxxxx xxxxxx agrees to vote in favor of and outstanding, to consent to the Stockholder Designees in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors connection with each vote taken or written consent executed in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number election of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Board.

Election of Directors. The holders of record Stockholder shall designate two (2) persons (the "Stockholder Representatives") to be elected as members of the shares Company's Board of Preferred StockDirectors (the "Board"), exclusively and the Company shall nominate each Stockholder Representative for election as a separate classdirector of the Company, and use its best efforts to cause each Stockholder Representative to be so elected. In the event a Stockholder Representative's position as a director is terminated for any reason (a "Terminated Stockholder Director"), such Terminated Stockholder Director's position on the Board, and any committees thereof, shall be entitled filled promptly by a successor Stockholder Representative nominated by Stockholder and approved in accordance with the Company's Bylaws and Certificate of Incorporation. The rights of Stockholder set forth herein will be limited to elect three (3) directors one Stockholder Representative at any time that the number of shares of Company Common Stock beneficially owned by the Stockholder, when combined with the number of shares of Company Common Stock that could be obtained upon conversion of the CorporationCompany Series G Convertible Preferred Stock beneficially owned by Stockholder (such combined number defined as the "Imputed Common Stock Ownership"), equals less than ten percent (10%) of the Company Common Stock that would be outstanding upon such conversion without taking into consideration any warrants, options, stock or other equity issued in connection with the Anticipated Financing (as defined in Article 9 of the Purchase Agreement, as amended) except for Company Common Stock issued pursuant to warrants, options or other rights exercisable at a price at least equal to the market value of such Common Stock on the date of exercise (the "Financing Equity"), and the Stockholder shall have no right to a Stockholder Representative at any time that its Imputed Common Stock Ownership is less than five percent (5%) of the Company Common Stock that would be outstanding upon conversion of the Series G Convertible Preferred Stock beneficially owned by Stockholder without taking into consideration the Financing Equity; provided, however, that, at any time there are any shares that the ownership of Series A-1 the Company's Common Stock or Preferred Stock issued and outstandingby an entity controlling, in lieu controlled by or under common control with the Stockholder with the prior consent of the holders of record of Company (which consent shall not be unreasonably withheld), and which has agreed in a writing delivered to the shares of Preferred Stock, Company to be obligated as the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three Stockholder hereunder (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote case of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares ownership of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively shall be attributed to the Stockholder for purposes of this 1.1. (a) The initial Stockholder Representatives shall be Xxxx Xxxxxxxx and voting together Xxxx Xxxx. Upon the Company's request following an event resulting in the limitation or loss of Stockholder's rights to Stockholder Representative(s), the Stockholder will cause one or both of the Stockholder Representatives, as the case may be, to resign as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2The Board, a vacancy in other than the Stockholder Representatives, will have the right to approve any directorship filled Stockholder Representative nominated by the holders of Stockholder, provided that such approval will not be unreasonably withheld, and provided further that in the event any class or series Stockholder Representative is not so approved, Stockholder shall be filled only by vote or written consent in lieu of a meeting of the holders of continue to nominate Stockholder Representatives until such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2approval is granted.

Election of Directors. The holders of record At each annual meeting of the shares shareholders of Preferred Stockthe Company, exclusively and as a separate class, shall be entitled to elect three (3) or at each special meeting of the shareholders of the Company involving the election of directors of the Corporation; providedCompany, however, that, and at any other time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu at which shareholders of the holders Company will have the right to or will vote for or render consent in writing, regarding the election of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); providedCompany, further, that for administrative conveniencethen and in each event, the initial Preferred Directors may also be appointed Shareholders hereby covenant and agree to vote all shares of capital stock of the Company presently owned or hereafter acquired by them (whether owned of record or over which any person exercises voting control) to cause and maintain the election of two representatives to the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action Company designated by the holders of the outstanding shares of Series C Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote The rights of the holders of the outstanding shares of Series C Preferred Stock to designate two representatives to be elected to the class Board of Directors as set forth in the next preceding paragraph shall terminate in the event the Investors (as defined in the Series C Preferred Certificate Resolution) cease to own 50% of the Fully Diluted Warrant Common Stock (as defined in the Series C Preferred Stock Certificate of Resolution) which it owned as of the date hereof, adjusted for stock dividends, stock splits, reverse stock splits, reorganizations, recapitalizations and the like. " In the event the Company breaches a covenant under the Securities Purchase Agreement at any time any share of 10% Exchangeable Preferred Stock is outstanding, the Shareholders agree that the number of directors will be increased to an even number, and the holders of the outstanding shares of Series C Preferred Stock shall have the right to designate one-half of the directors until such breach is cured or series waived, and the Shareholders shall vote all of their shares of capital stock entitled of the Company presently owned or hereafter acquired by them (whether owned of record or over which any person exercises voting control) to remove such directors as is necessary to allow the holders of the outstanding shares of Series C Preferred Stock to elect such director or one-half of all directors, given either at a special meeting and to cause and maintain the election of such stockholders duly called directors as designated by the holders of the outstanding shares of Series C Preferred Stock until such breach is cured or waived. At the request of the holders of the outstanding shares of Series C Preferred Stock, each of the parties hereto shall vote or cause to be voted all Shares owned by them or any shares over which they have voting control (i) to remove from the Board of Directors any director designated by the holders of the outstanding shares of Series C Preferred Stock, and (ii) to fill any vacancy in the membership of the Board of Directors with a designee of the holders of the outstanding shares of Series C Preferred Stock whose designee's resignation or removal from the Board caused such vacancy. 3 The Company shall provide to the holders of outstanding Series C Preferred Stock prior written notice of any intended mailing of notice to shareholders for that purpose or pursuant a meeting at which directors are to a written consent be elected, and Culligan shall notify the Company in writing, prior to such mailing, of stockholdersthe persons designated by it as its nominees for election as directors. If the holders of shares of any class or series of stock outstanding Series C Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant give notice to the first sentence of this Subsection 4.2Company as provided above, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, it shall be entitled to elect deemed that the balance designees of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such Culligan then serving as director shall constitute a quorum be their designee for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2reelection.

Election of Directors. The holders of record of the shares of Series Seed Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) two directors of the Corporation; provided, however, that, at any time there are any shares of Corporation (the “Series A-1 Preferred Stock issued Seed Directors”) and outstanding, in lieu of the holders of record of the shares of Preferred Common Stock, the holders of record of shares of Series A-1 Preferred Stock exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockCorporation. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series Seed Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series Seed Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series Seed Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect three four (34) directors of the Corporation; provided, however, that, at any time there are any shares of Corporation (the “Series A-1 Preferred Stock issued A Directors”) and outstanding, in lieu of the holders of record of the shares of Preferred Common Stock, the holders of record of shares of Series A-1 Preferred Stock exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockCorporation. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series A Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series A Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and Investors voting together as a separate class, class shall be entitled have the right to elect three (3) directors Directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance Company, two of whom shall meet the independence criteria of Nasdaq and of any other rules and regulations applicable to the Company. Notwithstanding the foregoing, to the extent that the number of outstanding shares of Series B Convertible Preferred Stock without and the number of shares of Common Stock which are held by the Investors are diminished as a separate action result of sale or other transfer, the number of Directors of the Board of Directors of the Company which may be elected by the holders of Preferred Stock. Any director elected as provided in thereof shall be proportionately reduced or eliminated to the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting extent that total number of such stockholders duly called for that purpose shares is nearer to two-thirds, one-third or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant zero compared to the first sentence of this Subsection 4.2, then initial total number thereof. At any directorship not so filled shall remain vacant until such time as the holders of such series meeting (or class of stock elect in a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting thereof) held for the purpose of electing a directorDirectors, the presence in person or by proxy (or the written consent) of the holders of a majority of the outstanding shares of Preferred Stock and of the class or series entitled to elect such director shares of Common Stock then held by the Investors shall constitute a quorum for the purpose election of electing such directorthe foregoing Directors. Except as otherwise provided in this Subsection 4.2, a A vacancy in any directorship filled elected pursuant to this paragraph by the holders of any class or series Investors shall be filled only by vote or written consent of such holders. In consideration of the foregoing rights, the Investors shall not participate in lieu the election of Directors set forth in Section 1(b)(iii) of the Certificate of Designation. GOVERNING LAW; MISCELLANEOUS. Governing Law. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN DENVER, COLORADO WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. THE PARTIES FURTHER AGREE THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR PROCEEDING. NOTHING HEREIN SHALL AFFECT ANY PARTY'S RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. THE PARTIES AGREE THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING ATTORNEYS' FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH DISPUTE. Counterparts; Signatures by Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a meeting copy of this Agreement bearing the signature of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to party so delivering this Subsection 4.2Agreement.

Election of Directors. The Board shall be comprised of five (5) members to be elected as follows: 3.2.1 The holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall by majority be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors one director of the Corporation (the “Preferred DirectorsSeries B Director”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of Series B Preferred Stock, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of such stockholders. If the class holders of shares of Series B Preferred Stock fail to elect the Series B Director, then the directorship not so filled shall remain vacant until such time as the holders of the Series B Preferred Stock elect the Series B Director by vote or series written consent in lieu of stock a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the holders of the Series B Preferred Stock, voting or consenting exclusively and as a separate class. 3.2.2 The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall by majority be entitled to elect one director of the Corporation (the “Series A Director”; together with the Series B Director, the “Preferred Directors”). Any director elected as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of Series A Preferred Stock, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of such stockholders. If the holders of shares of Series A Preferred Stock fail to elect the Series A Director, then the directorship not so filled shall remain vacant until such time as the holders of the Series A Preferred Stock elect the Series A Director by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the holders of the Series A Preferred Stock, voting or consenting exclusively and as a separate class. 3.2.3 The holders of record of the shares of Founders 1 Preferred Stock, exclusively and as a separate class, shall by a majority be entitled to elect one director or directorsof the Corporation. Any director elected as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of Founders 1 Preferred Stock, exclusively and voting as a separate class, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock Founders 1 Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, director pursuant to the first sentence of this Subsection 4.2Section 3.2.3, then any the directorship not so filled shall remain vacant until such time as the holders of such series or class of stock Founders 1 Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders holders of Founders 1 Preferred Stock, voting or consenting exclusively and as a separate class. 3.2.4 The holders of record of the Corporation that are shares of Common Stock, exclusively and as a separate class, shall by a majority be entitled to elect one director of the Corporation. Any director elected as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of Common Stock, exclusively and voting as a separate class, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of Common Stock fail to elect a director pursuant to the first sentence of this Section 3.2.4, then the directorship not so filled shall remain vacant until such time as the holders of Common Stock elect a person to fill such directorshipdirectorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the holders of Common Stock, voting or consenting exclusively and as a separate class. . 3.2.5 The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance remaining director of the total number of directors of the Corporation by vote of Corporation, voting or consenting together as a majority of such shares. single class on an as-converted to Common Stock basis. 3.2.6 At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 3.2, a vacancy in any directorship filled by the holders of any class or classes or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or classes or series or by any remaining director or directors elected by the holders of such class or classes or series pursuant to this Subsection 4.2Section 3.2.

Election of Directors. (a) The holders of record of the Stockholders agree to vote all shares of Common Stock, Series A Preferred Stock, exclusively Series B Preferred Stock and any other shares of voting securities of the Company now owned or hereafter acquired or controlled by them (collectively, the “Voting Securities”), attend all meetings whether in person or by proxy, and otherwise to use their respective best efforts as a separate classstockholders or directors of the Company, shall to cause and maintain the size of the Board of Directors to be entitled eight (8) (except as provided below), and to elect cause and maintain the election to the Board of Directors of the Company of: (i) three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed individuals designated by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of Series B Preferred Stock held by Xxxx Capital, Battery Ventures and their Affiliates (collectively, the class or series “Preferred Directors”); provided, that (A) for so long as Xxxx Capital and its Affiliates own at least 2% of the Common Stock on an As-Converted Basis, Xxxx Capital shall be entitled to designate one Preferred Director (the “Bain Director”), (B) for so long as Battery Ventures and its Affiliates own at least 2% of the Common Stock on an As-Converted Basis, Battery Ventures shall be entitled to designate one Preferred Director (the “Battery Director”), and (C) for so long as Xxxx Capital is entitled to designate the Bain Director and/or Battery Ventures is entitled to designate the Battery Director, the director or directors designated pursuant to the preceding clauses (A) and (B) shall mutually designate the remaining Preferred Director; (ii) for so long as Xxxxxx X. Xxxxxxx or any of his Affiliates owns at least 2% of the Common Stock on an As-Converted Basis, one (1) individual designated by Xxxxxx X. Xxxxxxx (the “Petters Director”); (iii) the Chief Executive Officer of the Company, who shall initially be Xxxxx Xxxxx; and (iv) three (3) independent directors mutually agreed by the Chief Executive Officer and the Required Holders, The directors designated pursuant to Section 2.1(a)(i) shall be the “Series B Directors” as defined in the Amended and Restated Certificate of Incorporation (as defined in the Purchase Agreement). (b) No party hereto shall vote to remove any member of the Board of Directors designated in accordance with the procedures set forth in Section 2.1(a); provided, however, that (i) if the parties originally designating a director as provided in Section 2.1(a)(i), (ii) or (iii) elect to remove such director, the parties hereto agree to vote to remove such director shall constitute from the Board of Directors of the Company and (ii) if the Chief Executive Officer or the Required Holders elect to remove a quorum for the purpose of electing such director. Except director designated as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders terms of Section 2.1(a)(iv), the parties hereto agree to vote to remove such director from the Board of Directors of the Company. (c) Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any class or series director designated under Section 2.1(a) shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected another person designated by the holders of parties originally designating such class or series director, so long as such originally designating parties are entitled to make such designation pursuant to Section 2.1(a). (d) The Company shall promptly take any and all actions in its power necessary to cause the election, appointment or removal of any person designated to the Board of Directors in accordance with this Subsection 4.2Section 2.1.

Election of Directors. (a) The Corporation shall have five (5) directors. (b) The directors shall be elected as follows: (i) the holders of record of the shares of Preferred Series A Stock, voting exclusively and as a separate class, shall be entitled to elect three four (34) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of (ii) the holders of record of the shares of Preferred Series B Stock, the holders of record of shares of Series A-1 Preferred Stock voting exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockCorporation. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of a majority of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders shareholders duly called for that purpose or pursuant to a written consent of stockholdersshareholders. If the holders of shares of any class Series A Stock or series of stock Series B Stock, voting elusively and as a separate class, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence two sentences of this Subsection 4.22.4.2(b), then any directorship not so filled shall remain vacant until such time as the holders of such series Series A Stock or class of stock Series B Stock, voting exclusively and as a separate class, as applicable, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders shareholders of the Corporation other than by the stockholders shareholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Section 305(a) of the Code notwithstanding, a no vacancy in any directorship directorship, regardless of how created, shall be filled by the remaining directors, and any such vacancy shall be filled by the holders of any class or series shall be filled only Stock by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series election pursuant to this Subsection 4.22.4.2(b) and in accordance with Section 305(b) or Section 305(c) of the Code.

Election of Directors. The holders of record of 64% of the shares of Series A Preferred Stock, voting exclusively and as a separate class, shall be entitled to elect three four (34) directors of the Corporation; provided, however, that, Corporation at any time there are any shares election of directors (the “Series A-1 Preferred Stock issued and outstanding, in lieu of the A Directors”). The holders of record of 66-2/3% of the shares of Series B Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock voting exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation at any election of directors (the “Series B Director”, and together with the Series A Directors, the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate classclasses, pursuant to the first sentence two sentences of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such the applicable series or class of stock Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate classclasses. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single classclass and not as separate series, and on an as as-converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2. The rights of the holders of the Series A Preferred Stock under the first sentence of this Subsection 3.2 shall terminate on the first date following the Series D Original Issue Date (as defined below) on which there are issued and outstanding less than 1,000,000 shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock). The rights of the holders of the Series B Preferred Stock under the second sentence of this Subsection 3.2 shall terminate on the first date following the Series D Original Issue Date (as defined below) on which there are issued and outstanding less than 1,000,000 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock).

Election of Directors. The (a) Each Stockholder hereby covenants and agrees that for so long as the Investor holds more than 25% of the voting capital stock of the Company, at each annual meeting of the Stockholders of the Company, and at each special meeting of the Stockholders of the Company called for the purpose of electing directors of the Company, and at any time at which holders of record any Stockholder Shares shall have the right to vote for or consent in writing to the election of directors of the shares of Preferred StockCompany, exclusively then, and as a separate classin each such event, the Investor shall be entitled to elect three (3) nominate all of the directors of the CorporationCompany, other than the director nominated pursuant to Sections 7(b) (each an "INVESTOR DIRECTOR"). In furtherance of the foregoing, the number of directors nominated by the Investor pursuant to this paragraph (a) shall in all events exceed a majority of the Board. Each Stockholder shall so vote all of the Stockholder Shares owned by it, or consent in writing with respect to such Stockholder Shares, to cause the election of each Investor Director to the Board. In the event that any vacancy in the Board is created by the removal, resignation or death of an Investor Director, the Investor shall be entitled to appoint, and each Stockholder hereby covenants and agrees to vote all of its Stockholder Shares owned by it, or consent in writing with respect to such Stockholder Shares to so appoint, such Investor Director's successor. The initial Board shall be comprised of seven directors. The number of directors constituting the Board, and the number of Investor Directors, may be increased or decreased (but not below five members) at any time at the sole discretion of the Investor. (b) Each Stockholder hereby covenants and agrees that, for so long as the Pauls hold more than 50% of the Common Stock issued to them at the Closing (as defined in the Merger Agreement), at each annual meeting of the stockholders of the Company, and at each special meeting of the stockholders of the Company called for the purpose of electing directors of the Company, and at any time at which holders of any Stockholder Shares shall have the right to vote for or consent in writing to the election of directors of the Company, then, and in each such event, the Pauls shall be entitled to nominate either Xxxx Xxxx or Xxxxx Xxxx or any natural person who is a member of their Family Group to the Board and each Stockholder shall so vote all of the Stockholder Shares owned by it, or consent in writing with respect to such Stockholder Shares, to cause the election of such director to the Board. In the event that any vacancy in the Board is created by the removal, resignation or death of such director, the Pauls shall be entitled to appoint, and each Stockholder hereby covenants and agrees to vote all of its Stockholder Shares owned by it, or consent in writing with respect to such Stockholder Shares to so appoint, such director's successor; provided, however, thatthat such director's successor shall be either Xxxx Xxxx or Xxxxx Xxxx or any natural person who is a member of their Family Group. In addition, at any time there are any shares for so long as the Pauls hold more than 50% of Series A-1 Preferred the Common Stock issued and outstandingto them at the Closing, in lieu the Pauls shall have the right to designate one additional person to attend each meeting of the holders of record Board as an observer and such observer shall be furnished a copy of the shares minutes and other records of Preferred Stock, all meetings and other actions taken by the holders of record of shares of Series A-1 Preferred Stock shall be entitled Board and its committees and all written material given to elect three (3) directors of in connection with such meeting at the Corporation (same time as such materials and information are given to the “Preferred Directors”)directors; provided, furtherhowever, that such observer shall be either Xxxx Xxxx or Xxxxx Xxxx or any natural person who is a member of their Family Group. (c) The Company shall reimburse each director of the Company, or his or her designee, for administrative convenience, the initial Preferred Directors may also be appointed all reasonable travel and accommodation expenses incurred by the Board of Directors such director in connection with the approval performance of the initial issuance of Preferred Stock without his or her duties as a separate action by the holders of Preferred Stockdirector. Any director elected as provided in the preceding sentences may be removed without cause byThe Company shall, and only byeach Stockholder shall use reasonable commercial efforts to cause the Board to cause the Company to, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or maintain a directors, given either at a special meeting of such stockholders duly called for ' liability insurance policy that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant is reasonably acceptable to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Investor.

Election of Directors. The Subject to the provisions of the Restated Certificate and Bylaws as in effect from time to time after the date hereof, each Stockholder agrees that at each annual meeting of the Company’s stockholders, at any other meeting of the Company’s stockholders at which members of the Board are to be elected, and whenever members of the Board are to be elected by written consent, such Stockholder shall vote or act with respect to all of its Shares so as to elect directors in accordance with the following: (a) At each election of directors in which the holders of record of the shares of Preferred Common Stock, exclusively and voting as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by Company, each Stockholder owning Common Stock will vote of a majority of such shares. At any meeting held Shares for the purpose election of electing a director, the presence in person or (i) one individual designated by proxy of the holders of a majority of the then issued and outstanding share of Common Stock (the “Common Stock Designee”); (ii) one individual designated by holders of a majority of the then issued and outstanding shares of Series 1 Preferred Stock (the “Series 1 Designee”); (iii) one individual designated by holders of a majority of the then issued and outstanding shares of Series A Preferred Stock (the “Series A Designee”); (iv) one individual designated by holders of a majority of the then issued and outstanding shares of Series B Preferred Stock (the “Series B Designee”); (v) two individuals designated by holders of a majority of the then issued and outstanding shares of Common Stock and Series 1 Preferred Stock, voting together as a single class on an as-converted basis (the “Common/Series 1 Joint Designees”); and (vi) one independent individual designated by holders of a majority of the then issued and outstanding shares of the outstanding capital stock of the Company, voting together as a single class or series on an as-converted basis (the “Independent Director”). (b) At each election of directors in which the holders of Series 1 Preferred Stock, voting as a separate class, are entitled to elect directors of the Company, each Stockholder owning Series 1 Preferred Stock will vote such Shares for the election of (i) the Common Stock Designee; (ii) the Series 1 Designee; (iii) the Series A Designee; (iv) the Series B Designee; (v) the Common/Series 1 Joint Designees; and (vi) the Independent Director. (c) At each election of directors in which the holders of Series A Preferred Stock, voting as a separate class, are entitled to elect directors of the Company, each Stockholder owning Series A Preferred Stock will vote such Shares for the election of (i) the Common Stock Designee; (ii) the Series 1 Designee; (iii) the Series A Designee; (iv) the Series B Designee; (v) the Common/Series 1 Joint Designees; and (vi) the Independent Director. (d) At each election of directors in which the holders of Series B Preferred Stock, voting as a separate class, are entitled to elect directors of the Company, each Stockholder owning Series B Preferred Stock will vote such Shares for the election of (i) the Common Stock Designee; (ii) the Series 1 Designee; (iii) the Series A Designee; (iv) the Series B Designee; (v) the Common/Series 1 Joint Designees; and (vi) the Independent Director. Each such director shall constitute a quorum hold office for the purpose of electing term specified in the Company’s Restated Certificate or Bylaws or until such director. Except as otherwise provided in this Subsection 4.2’s earlier death, a vacancy in any directorship filled by the holders of any class resignation, removal or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2disqualification.

Election of Directors. The Board of Directors shall be composed of five members; provided that at the election of holders of a majority of the outstanding Series B Preferred (the “Board Expansion Right”), the Board of Directors shall be increased by two members (the “Additional Series B Directors”), for a total of seven members. The holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) two directors of the Corporation; providedCorporation (or four directors in the event that they exercise their Board Expansion Right) (including any Additional Series B Directors, howeverthe “Series B Directors”), that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Common Stock and Series B Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock voting together, shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); providedCorporation. Except as otherwise required by law, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series B Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series B Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series B Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any all remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Directors.

Election of Directors. The holders Board of record Directors of the shares New Company shall comprise of Preferred Stockfour Directors, exclusively two of whom shall be appointed (not nominated) to the Board by CMR and as a separate class, two of whom shall be appointed (not nominated) by SPAR. Each of SPAR and CMR shall be entitled to elect three (3) directors remove and replace any Director so appointed or removed by it. A director appointed by a Shareholder shall be deemed to have resigned with effect from the date on which that Shareholder disposes of its shares in the New Company or the date on which the New Company receives notice from a Shareholder of the Corporation; providedremoval of a Director appointed by that shareholder. The appointment, however, that, at any time there are any shares removal and replacement of Series A-1 Preferred Stock issued a Director shall be by notice to the New Company and outstanding, in lieu binding on the Shareholders and the New Company regardless of whether the formalities required for the appointment of Directors under the Companies Act have been met. A Director need not hold a qualifying share. The Chairman of the holders Board of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock Directors shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with from amongst the approval Directors. The Chairman shall be the Chairman both of the initial issuance Board of Preferred Stock without Directors and meetings of Shareholders. Should the Chairman not be present at any meeting of Directors of Shareholders then the Directors or Shareholders present at that meeting shall elect a separate action by Chairman for the holders purpose of Preferred Stockthat meeting. Any director elected In case of any decrease or increase of the number of Directors, the representations stipulated above shall be unchanged and pro rata as between SPAR and CMR at all times unless otherwise provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholdersthis Agreement under Article 23 below. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, Each Director shall be entitled to elect appoint (and thereafter remove) on notice to the balance New Company an Alternate Director to act in his place. An alternate, when acting as such, shall have all the powers and obligations of a Director, including the right to attend, speak and vote at meetings of the total number Board. The appointment of directors of an alternate Director shall cease on the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders happening of any class event which, if he were a Director, would cause him to cease to hold office as a Director, or, if the Director who appointed him ceases to be a Director, or series shall be filled only by vote or written consent in lieu of a meeting of removes the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2.alternate Director

Election of Directors. The holders of record of the shares of Series A Preferred Stock, Series B Preferred Stock and/or Series C Preferred Stock (together, the “ABC Preferred Stock”), exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Preferred Stock Director”) and the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class ABC Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the ABC Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock), Series A-2 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (together, the “Voting Preferred Stock”) other than the Series D-1 Preferred Stock, exclusively and voting together as a single class, class (on an as as-converted to Common Stock basis), shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Corporation (the “Preferred Stock issued Director”) and outstanding, in lieu of the holders of record of the shares of Preferred Common Stock, the holders of record of shares of Series A-1 Preferred Stock exclusively and as a separate class, shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockCorporation. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock and the Series A-2 Preferred Stock), exclusively and voting together as a single class, class (on an as as-converted to Common Stock basis), shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders So long as 20% of record the aggregate amount of the shares of Series A Preferred StockStock issued to the Purchasers (as defined in that certain Securities Purchase Agreement, exclusively dated June 1, 2007, by and among the Corporation and the Purchasers named therein (the “Securities Purchase Agreement”)) (all capitalized terms used in this Certificate and not otherwise defined will have the definitions assigned to them in the Securities Purchase Agreement) at the Closing are outstanding, the holders of outstanding shares of Series A Preferred Stock shall, voting together as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors two Directors of the Corporation (the “Preferred Series A Directors”); provided. The Series A Directors shall be elected by a plurality vote of holders of Series A Preferred Stock, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval elected candidates being the individuals receiving the greatest number of affirmative votes (with each holder of Series A Preferred Stock entitled to cast one vote for or against each candidate with respect to each share of Series A Preferred Stock held by such holder) of the initial issuance outstanding shares of Series A Preferred Stock without a separate action by Stock, with votes cast against such candidate and votes withheld having no legal effect. The election of such Directors shall occur: (i) at the annual meeting of holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either capital stock; (ii) at a any special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of capital stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until if such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held is called for the purpose of electing a director, the presence in person or by proxy directors; (iii) at any special meeting of the holders of Series A Preferred Stock called by holders of not less than a majority of the outstanding shares of Series A Preferred Stock (a “Majority Interest”); or (iv) by the class or series written consent of holders of the outstanding shares of Series A Preferred Stock entitled to vote for such Directors in the manner and on the basis specified above. If at any time when the holders of Series A Preferred Stock are entitled to elect such director shall constitute Directors, any such Series A Director should cease to be a quorum Director for any reason, the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by the vote or written consent in lieu of a meeting of the holders of such class the outstanding shares of Series A Preferred Stock, voting together as a separate class, in the manner and on the basis specified above or series or as otherwise provided by any remaining director or directors elected by the law. The holders of outstanding shares of Series A Preferred Stock shall also be entitled to vote in the election of all other Directors of the Corporation together with holders of all other shares of the Corporation’s outstanding capital stock entitled to vote thereon, voting as a single class, with each outstanding share of Series A Preferred Stock entitled to the number of votes specified in Section 2(b) hereof. The holders of outstanding shares of Series A Preferred Stock may, in their sole discretion, determine not to elect Series A Directors as provided herein from time to time, and during any such class or series pursuant to this Subsection 4.2period the Board of Directors nonetheless shall be deemed duly constituted.

Election of Directors. The holders (a) Each Other Shareholder shall vote all of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the its shares of Common Stock and of any other class voting securities of the Company over which such Other Shareholder has voting control and shall take all other necessary or series of voting stock desirable actions within such Other Shareholder’s control (including the Preferred Stock), exclusively and voting together whether in such Other Shareholder’s capacity as a single classstockholder, on an as converted basisdirector, shall be entitled to elect the balance member of a Board committee or officer of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a directorCompany or otherwise, the presence and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings and approval of amendments and/or restatements of the Certificate of Incorporation or Bylaws), and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special Board or stockholder meetings and approval of amendments and/or restatements of the Certificate of Incorporation or Bylaws), so that: (i) the authorized number of directors on the Board shall be fixed pursuant to and in accordance with the LLC Agreement, which directors shall have the voting rights as specified in the LLC Agreement; (ii) all of the directors, which will be designated by the LLC in accordance with the LLC Agreement, shall be elected to the Board; (iii) the composition of the board of directors of each of the Company’s Subsidiaries (a “Subsidiary Board”) shall be determined in accordance with the LLC Agreement; (iv) any committees of the Board or a Subsidiary Board shall be created only upon the approval of the Board; and (v) the removal from the Board or a Subsidiary Board or a committee of the Board or a Subsidiary Board (with or without cause) of any representative designated pursuant hereto by the LLC shall be at the LLC’s written request exercised in accordance with the LLC Agreement, as the case may be, but only upon such written request and under no other circumstances. (b) In order to secure each Other Shareholder’s obligation to vote its shares of Common Stock and other voting securities of the Company in accordance with the provisions of this Section 8, each Other Shareholder hereby appoints the LLC as its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of such Person’s shares of Common Stock and other voting securities of the Company for the election and removal of directors and all such other matters as expressly provided for in this Section 8. The LLC may exercise the irrevocable proxy granted to it hereunder at any time any Other Shareholder fails to comply with the provisions of this Section 8. The proxies and powers granted by each Other Shareholder pursuant to this paragraph (b) are coupled with an interest and are given to secure the performance of the obligations under this Agreement. Such proxies and powers will be irrevocable until the termination of this Agreement, and will survive the death, incompetency and disability or insolvency or dissolution, as applicable, of each Other Shareholder and the holders of a majority each of the outstanding his, her or its respective shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Common Stock.

Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect three two (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (32) directors of the Corporation (the “Preferred Series A Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock Series A Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock the Series A Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and and, no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The Board of Directors shall be composed of five members; provided that at the election of holders of a majority of the outstanding Series B Preferred (the “Board Expansion Right”), the Board of Directors shall be increased by two members (the “Additional Series B Directors”), for a total of seven members. The holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) two directors of the Corporation; providedCorporation (or four directors in the event that they exercise their Board Expansion Right) (including any Additional Series B Directors, howeverthe “Series B Directors”), that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Common Stock and Series B Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock voting together, shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred StockCorporation. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class Series B Preferred Stock or series of stock Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.23.2, then any directorship not so filled shall remain vacant until such time as the holders of such series the Series B Preferred Stock or class of stock Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series B Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.23.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.23.2.

Election of Directors. The holders So long as the number of record of the outstanding shares of Series C-1 Preferred Stock and Series C-2 Preferred Stock, exclusively and as a separate classin the aggregate, shall equal or exceed such number of shares that can be entitled to elect three converted into Common Stock which represents beneficial ownership of more than five percent (35%) directors of the Corporation; provided, however, that, at any time there are any outstanding shares of Series A-1 Preferred Common Stock issued and outstanding(without regard to or giving effect to any limitations on the ability to convert in effect prior to the date of the first Shareholder Issuance Vote (as defined in the Securities Purchase Agreement)), in lieu of the holders of record of the shares of Series C-1 Preferred Stock and Series C-2 Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock voting together as a single class, shall be entitled to elect three one (31) directors director of the Corporation (the “Preferred DirectorsSeries C Director”); provided. For purposes of this Subsection 6.2, further, that for administrative convenience, the initial Preferred Directors may also beneficial ownership shall be appointed determined by the Board of Directors Corporation in connection accordance with the approval Section 13(d) of the initial issuance of Preferred Stock without a separate action by Exchange Act and the holders of Preferred Stockrules and regulations promulgated thereunder. Any director elected as provided in the preceding sentences may be removed with or without cause by, and only by, the affirmative vote of the holders of the shares Series C-1 Preferred Stock and the holders of the class or series of stock entitled to elect such director or directorsSeries C-2 Preferred Stock, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series Series C-1 Preferred Stock and the holders of stock the Series C-2 Preferred Stock fail to elect such a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2director, then any directorship not so filled shall remain vacant until such time as the holders of such series or class the Series C-1 Preferred Stock and the holders of stock the Series C-2 Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders holders of shares of Series C-1 Preferred Stock and the holders of the Corporation that are entitled to elect a person to fill such directorshipSeries C-2 Preferred Stock, voting exclusively and as a separate class. The Any vacancy in the position of Series C Director shall be filled by the holders of record the Series C-1 Preferred Stock and the holders of the shares Series C-2 Preferred Stock by vote or written consent in lieu of Common Stock a meeting; and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall no such directorship may be entitled to elect the balance of the total number of directors filled by stockholders of the Corporation other than by vote the holders of the Series C-1 Preferred Stock and the holders of the Series C-2 Preferred Stock, voting exclusively and as a majority of such sharesseparate class. At any meeting held for the purpose of electing a directorthe Series C Director, the presence in person or by proxy of the holders of a majority majority, in the aggregate, of the outstanding shares of the class or series entitled to elect such director Series C-1 Preferred Stock and Series C-2 Preferred Stock shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Series C Director.

Election of Directors. The authorized number of --------------------- directors of this Corporation shall be seven (7). Notwithstanding 4(a) above, the holders of record of the shares of Series A Preferred Stock, exclusively and voting as a separate class, shall be entitled to elect four (4) directors of the corporation; and the holders of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Common Stock, voting together as a single class on an as converted basis, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharescorporation. At any meeting held for the purpose of electing a directordirectors, the presence in person or by proxy of the holders of a majority of the Series A Preferred Stock then outstanding shares of the class or series entitled to elect such director shall constitute a quorum of the Series A Preferred Stock for the election of directors to be elected solely by the holders of Series A Preferred Stock. At any meeting held for the purpose of electing such directordirectors, the presence in person or by proxy of the holders of a majority of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Common Stock then outstanding, on an as converted basis, shall constitute a quorum of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Common Stock for the election of directors to be elected solely by the holders of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Common Stock, voting together as a single class on an as converted basis. Except as otherwise provided in this Subsection 4.2, a A vacancy in any directorship filled elected by the holders of any class or series Series A Preferred Stock shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by Series A Preferred Stock; and a vacancy in any remaining director or directors directorship elected by the holders of such class or series pursuant to this Subsection 4.2Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Common Stock voting together shall be filled only by the vote of the holders of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Common Stock voting together as provided above.

Election of Directors. The holders of record of the shares of Series C Preferred Stock, exclusively and as a separate class, shall be entitled to elect five (5) directors of the Corporation (the “Series C Directors”) and the holders of record of the shares of Voting Common Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Voting Common Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders shareholders duly called for that purpose or pursuant to a written consent of stockholdersshareholders. If the holders of shares of any class Series C Preferred Stock or series of stock Voting Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are each such group is entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2Article VI(B), then any directorship Series C Director or Voting Common Director position not so filled shall remain vacant until such time as the holders of such series the Series C Preferred Stock or class of stock Voting Common Stock, respectively, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders shareholders of the Corporation other than by the stockholders shareholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Voting Common Stock and of any other class or series of voting stock (including the Series C Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such sharesCorporation, if any. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2Article VI(B), a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Article VI(B).

Election of Directors. The holders of record of the shares of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect Table of Contents a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2.

Election of Directors. The holders Each Investor, as a holder of record Preference A Shares, hereby agrees on behalf of itself and any transferee or assignee of any such Preference A Shares, to hold all of the shares Preference A Shares registered in its name (and any securities of Preferred Stockthe Company issued with respect to, exclusively upon conversion of, or in exchange or substitution for such Preference A Shares, and any other voting securities of the Company subsequently acquired by such Investor) and any voting securities of the Company held in trust over which they have voting power (hereinafter collectively referred to as the “Investor Shares”) subject to, and to vote the Investor Shares at a regular or special meeting of shareholders (or by written consent) in accordance with, the provisions of this Agreement. Each Management Holding Company, as a separate classholder of Ordinary Shares and, shall be entitled to elect three (3) directors if applicable, Preference A Shares of the Corporation; providedCompany, howeverhereby agrees on behalf of itself and any transferee or assignee of any such Ordinary Shares and, thatif applicable, at Preference A Shares, to hold all of such Ordinary Shares, Preference A Shares and any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu other securities of the holders of record Company acquired by such Management Holding Company in the future (and any securities of the shares of Preferred StockCompany issued with respect to, the holders of record of shares of Series A-1 Preferred Stock shall be entitled to elect three (3upon conversion of, or in exchange or substitution for such securities) directors of the Corporation (the “Preferred DirectorsManagement Holding Company Shares”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by) subject to, and only by, to vote the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either Management Holding Company Shares at a regular or special meeting of such stockholders duly called for that purpose shareholders (or pursuant to a by written consent consent) in accordance with, the provisions of stockholdersthis Agreement. If the holders The Management Shareholder hereby agrees (a) on behalf of shares itself and any transferee or assignee of any class securities in any Management Holding Company to cause such Management Holding Company to vote the Management Holding Company Shares at a regular or series special meeting of stock fail to elect a sufficient number shareholders (or by written consent) in accordance with, the provisions of directors to fill all directorships for which they are entitled to elect directorsthis Agreement and (b) if and when applicable, voting exclusively and as a separate classholder of Ordinary Shares and Preference A Shares of the Company, pursuant on behalf of itself and any transferee or assignee of any such Ordinary Shares and Preference A Shares, to hold all of such Ordinary Shares, Preference A Shares and any other securities of the first sentence Company acquired by such Management Shareholder in the future (and any securities of the Company issued with respect to, upon conversion of, or in exchange or substitution for such securities) (the “Management Shares”) subject to, and to vote the Management Shares at a regular or special meeting of shareholders (or by written consent) in accordance with, the provisions of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2Agreement.

Election of Directors. The Notwithstanding the other provisions of this Article IV, upon the occurrence of a Default Event (hereafter defined) and for the duration of the Default Period (hereafter defined) the number of positions on the Board of Directors shall be increased as follows and the manner of election of the new additional Directors shall be as follows: the holders of record of the shares of outstanding Series C Preferred Stock and D Preferred Stock, exclusively and voting together as a separate classclass by a majority of the votes which they are eligible to cast as such holders, shall be entitled to elect three (3) directors increase the size of the Corporation; providedBoard of Directors so that the size thereof shall consist of, howeverand shall be entitled to elect, that(i) six new additional Directors if the existing number of Directors at the time a Default Event occurs is eleven or less, and (ii) one additional Director for each Director that exceeds eleven at any the time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of a Default Event occurs. In case the holders of record the Series C Preferred Stock and D Preferred Stock become entitled to exercise such special voting rights, they may during the Default Period call a special meeting of stockholders, in the shares manner provided herein or in the by-laws or otherwise as provided by law, for the purpose of Preferred Stockincreasing or decreasing the number of positions on the Board of Directors, electing such members to the Board of Directors and (if deemed necessary) removing any incumbent directors in order to achieve the proportion described above. In addition, the holders of record of shares of the Series A-1 C Preferred Stock and D Preferred Stock shall be entitled to elect three have such special voting rights at any annual or regular meeting of stockholders (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action or any other special meeting not called by the holders of Series C Preferred Stock and D Preferred Stock) held during the Default Period. Any director elected as provided in In lieu of the preceding sentences may be removed without cause byforegoing, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting Series C Preferred Stock and D Preferred Stock may take any of such stockholders duly called for that purpose or pursuant to action by a written consent of stockholders. If in accordance with the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 4.2DGCL.

Election of Directors. The holders of record (i) At or prior to the effective time of the shares Merger (as such term is defined in the Investment Agreement), the Board of Preferred Stock, exclusively and as a separate class, shall be entitled to elect three (3) directors Directors of the CorporationCompany (as such term is defined in the Investment Agreement) shall take such actions as are necessary to cause the persons indicated on Exhibit B (each an "Investor Director") to be elected to the Board of Directors of the Company, for an initial three-year term, at the effective time of the Merger; provided, however, thatthat the director nominated by Par Investment Partners, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of the holders of record of the shares of Preferred Stock, the holders of record of shares of Series A-1 Preferred Stock L.P. shall be entitled appointed to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by Company on the holders of Preferred Stock. Any director elected as provided in date which is two business days after the preceding sentences may be removed without cause by, and only by, the affirmative vote effective time of the holders Merger. (ii) In the event that ACE Aviation Holdings, Inc. ("ACE") is entitled to designate an Investor Director pursuant to terms of its Investment Agreement, for so long as ACE, together with its Affiliates, holds not less than 66.67% of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of (after accounting for any other class reverse stock split, pro rata repurchases or series of voting stock similar actions by the Company) acquired by it pursuant to its Investment Agreement (including the Preferred Stock"ACE Director Threshold"), exclusively and voting together as a single classthe Company agrees to nominate, on an as converted basis, shall be entitled to elect at the balance expiration of the total number term of ACE's Investor Director, a director nominee designated by ACE for a successive three year term and, in the event ACE's Investor Director resigns, dies or become incapacitated, the Company shall cause the vacancy so created to be filled by a designee of ACE to serve the unexpired term of the director being replaced, provided that, in either such case, the director designated or nominated by ACE meets the basic qualifications for directors, if any, contained in the Company's bylaws applicable to all directors of the Corporation Company. If ACE, together with its Affiliates, falls below the ACE Director Threshold, it shall cause its Investor Director (as indicated on Exhibit B) to resign from the Board of Directors of the Company. (iii) With respect to any Investors other than ACE who are entitled to designate directors to the Company's Board of Directors as of the Closing Date (each a "Designating Investor"), for so long as the Designating Investor, together with its Affiliates and any of their respective shareholders, partners or members, collectively, holds not less than 35% of the number of shares of Common Stock (after accounting for any reverse stock split, pro rata repurchases or similar actions by vote of a majority of such shares. At any meeting held for the purpose of electing a directorCompany) acquired by it pursuant to its Investment Agreement (the "Designating Investor Threshold"), the presence in person or by proxy Company agrees to nominate, at the expiration of the holders of a majority term of the outstanding shares Designating Investor's designee, a director nominee designated by the Designating Investor for a successive three year term and, in the event the Designating Investor's designee resigns, dies or become incapacitated, the Company shall cause the vacancy so created to be filled by a designee of the class Designating Investor to serve the unexpired term of the director being replaced, provided that, in either such case, the director designated or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2, a vacancy in any directorship filled nominated by the holders of any class or series shall be filled only by vote or written consent Designating Investor meets the basic qualifications for directors, if any, contained in lieu of a meeting the Company's bylaws applicable to all directors of the holders Company. If the Designating Investor, together with its Affiliates and any of their respective shareholders, partners or members, collectively, falls below the Designating Investor Threshold, its designee shall serve out his or her term, but such class or series or by any remaining Designating Investor shall no longer have a right to designate a director or directors elected by to the holders Company's Board of such class or series pursuant to this Subsection 4.2Directors.

Election of Directors. The On all matters relating to the election of directors of the Company, the Key Common Holders and the Investors agree to vote all Key Common Holder Shares and Investor Shares held by them (or the holders thereof shall consent pursuant to an action by written consent of the holders of record capital stock of the shares Company), respectively, so as to elect members of Preferred Stockthe Company’s Board of Directors (the “Board”) as follows: (a) For so long as holders of Series E Stock are entitled under the Amended and Restated Certificate of Incorporation of the Company, exclusively and as amended from time to time (the “Certificate of Incorporation”), voting as a separate class, to elect two (2) members of the Board (the “Series E Directors”), the Series E Directors shall be individuals nominated by Clarus Lifesciences I, L.P. together with its Affiliated Parties (collectively, “Clarus Ventures”) for so long as Clarus Ventures holds Series E Stock, which individuals shall initially be Xxxx Xxxxxxx and Xxxxxx Xxxxxx. In the event that Clarus Ventures ceases to be entitled to nominate the Series E Directors pursuant to the preceding sentence, such Series E Directors shall be nominated by holders of at least a majority of the then outstanding shares of Series E Stock. Any vote or action by written consent taken to remove any directors elected pursuant to this Section 1.3(a), or to fill any vacancy created by the resignation, removal or death of any director elected pursuant to this Section 1.3(a), shall also be subject to the provisions of this Section 1.3(a). (b) For so long as holders of Common Stock are entitled under the Certificate of Incorporation, voting as a separate class, to elect three (3) directors members of the Corporation; provided, however, that, at any time there are any shares of Series A-1 Preferred Stock issued and outstanding, in lieu of Board (the holders of record of the shares of Preferred Stock“Common Directors”), the holders of record of shares of Series A-1 Preferred Stock Common Directors shall be entitled to elect three (3) directors of the Corporation (the “Preferred Directors”); provided, further, that for administrative convenience, the initial Preferred Directors may also be appointed individuals nominated by the Board of Directors in connection with the approval of the initial issuance of Preferred Stock without a separate action by the holders of Preferred Stock. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of any class or series of stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 4.2, then any directorship not so filled shall remain vacant until such time as the holders of such series or class of stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as converted basis, shall be entitled to elect the balance of the total number of directors of the Corporation by vote of a majority of such shares. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the then outstanding shares Key Common Holder Shares, which individuals shall initially be Xxxxx Xxxx, Xxxxx Xxxxxx and Xxxxx Xxxxxxx. Any vote or action by written consent taken to remove any director elected pursuant to this Section 1.3(b), or to fill any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 1.3(b), shall also be subject to the class provisions of this Section 1.3(b). The Series E Directors and Common Directors are collectively referred to herein as “Designated Directors.” (c) The Company shall provide the Holders with 10 days’ prior written notice of any intended mailing of a notice to stockholders for a meeting at which directors are to be elected (a “Stockholder Mailing”); provided, however, that in the event the Company receives notice (the “Investor Notice”) from any person, entity or series group entitled to elect nominate a Designated Director hereunder (such director person, entity or group, a “Designating Party”) that such Designating Party, having the right to do so hereunder, desires to replace the individual then serving as the Designated Director nominated by such Designating Party pursuant to Section 1.3 hereof, the Company shall constitute not call a quorum special meeting of stockholders for the purpose of electing such director. Except as otherwise provided in this Subsection 4.2directors, a vacancy in any directorship filled by but shall instead deliver to the holders of any class or series shall be filled only by vote or Series E Stock and/or Common Stock, as applicable, a written consent in lieu of stockholders for the purpose of electing directors, within five (5) days after receipt of such Investor Notice, and each holder of Series E Stock and/or Common Stock, as applicable, shall execute and return to the Company such written stockholder consent within ten (10) days after receipt of such consent. Except with respect to a meeting director who is being elected by written consent of stockholders pursuant to the immediately preceding sentence, the Designating Party entitled to nominate directors of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant Company hereunder, shall give written notice to all other parties to this Subsection 4.2.Agreement, prior to such Stockholder Mailing, of the persons designated pursuant to