Common use of Investor Directors Clause in Contracts

Investor Directors. From and after the Closing, the manner of selecting nominees for election to the Issuer Board will be as follows: (a) In connection with each annual or special meeting of shareholders of the Issuer at which Directors are to be elected (each such annual or special meeting, an “Election Meeting”), the Investor shall have the right to designate for nomination for election as an Investor Director such number of Investor nominees so that the total number of Investor Directors on the Issuer Board after giving effect to the election of the Investor nominees is equal to the product of the Investor Voting Interest multiplied by the Total Number of Directors, in each case rounded up to the next whole number; provided, that, if the Investor Voting Interest is less than ten percent (10%), then the Investor shall not be entitled to nominate any Person as an Investor Director. (b) The Investor shall give written notice to the Nominating and Corporate Governance Committee of each such nominee for Investor Director not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual Election Meeting; provided, that, if such Election Meeting is called for a date that is not within thirty (30) days before or after such anniversary date, the Investor shall give such notice not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the immediately preceding annual Election Meeting was mailed or public disclosure of the date of such Election Meeting was made, whichever first occurred; provided, further, however, that if the Investor fails to give such notice in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner; provided, further, that if the number of incumbent Investor Directors is less than the number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(a), then the Issuer and the Investor shall use their respective reasonable best efforts to mutually agree on a Director or Directors to satisfy the requirements of Section 3.1(a). (c) In the event the Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle the Investor to nominate a number of Persons for election as a Director to the Issuer Board pursuant to Section 3.1(a) that is less than the number of Investor Directors on the Issuer Board at the time of determination, then the Investor will (x) designate in Investor’s sole discretion the Investor Director or Investor Directors who are to resign from the Issuer Board so that the number of Investor Directors on the Issuer Board is equal to the number of Persons the Investor is entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a) and (y) use its reasonable best efforts to cause such Investor Director(s) to resign or otherwise be removed from the Issuer Board. (d) In the event the Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle the Investor to nominate a number of Persons for election as a Director to the Issuer Board pursuant to Section 3.1(a) that is greater than the number of Investor Directors on the Issuer Board at the time of determination, then the Issuer will promptly take such actions (including increasing the number of Persons constituting the entire Issuer Board) as are necessary to create the appropriate number of vacancies or newly-created directorships on the Issuer Board and will cause those Persons designated by the Investor to fill such vacancies or newly-created directorships so that the number of Investor Directors on the Issuer Board is equal to the number of Persons the Investor is entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a). Such Persons designated by Investor to fill such vacancies shall be appointed to the class in which the vacancy occurs, and, in the event the number of Persons constituting the Issuer Board is increased, such Persons designated to fill such newly-created directorships shall first (with respect to the first such Person) be appointed to the class of Directors on the Issuer Board that stood for election at the most recent Election Meeting prior to such appointment, and then (with respect to each subsequent such Person) to the class of Directors on the Issuer Board that stood for election at the next-most recent Election Meeting prior to such appointment.

Investor Directors. From and after the Closing, the manner of selecting nominees for election to the Issuer Board will be as follows: (a) In connection with each annual or special meeting of shareholders of the Issuer at which Directors are to be elected (each such annual or special meeting, an “Election Meeting”), the The Investor shall have the right initially be entitled to designate for nomination for election as an Investor two (2) Directors (inclusive of Xxxxxxxx Xxxxxxx, who is already a Director). Following the appointment of the Initial Director such Designees to the Company Board, the number of Directors the Investor nominees so that shall be entitled to designate for nomination to the total Company Board shall: (y) increase and decrease automatically to a number of Investor Directors on the Issuer Board after giving effect to the election of the Investor nominees is equal to the product product, rounded to the nearest whole number, of (i) the number of shares of Company Common Stock beneficially owned by the Investor (including any shares of Company Common Stock which are then issuable upon conversion of shares of Series A Preferred Stock held by the Investor) divided by the number of shares of Company Common Stock then outstanding (plus any shares of Company Common Stock issuable upon conversion of shares of Series A Preferred Stock included in clause (i)) and (ii) the size of the Investor Voting Interest multiplied by the Total Number of DirectorsCompany Board (e.g., in each case 2.4 will be rounded down to 2 and 2.5 will be rounded up to the next whole number; 3), provided, thathowever, if that in no event shall the number of Directors the Investor Voting Interest is less than shall be entitled to designate for nomination to the Company Board pursuant to this Agreement represent the majority of the Directors; and (z) decrease to one (1) Director in the event the Investor ceases to beneficially own at least ten percent (10%), ) of the then outstanding shares of Company Common Stock and to zero (0) Directors in the event the Investor ceases to beneficially own at least five percent (5%) of the then outstanding shares of Company Common Stock, in each case including any shares of Company Common Stock which are then issuable upon conversion of shares of Series A Preferred Stock held by the Investor). The appointment of any such Investor Director Designees pursuant hereto shall be subject to such Persons’ satisfaction of the Director Qualification Standards; provided, that so long as the Investor is entitled to nominate no more than two (2) Directors, such Directors shall not be entitled required to nominate comply with any Person as an Investor Director. (b) The Investor shall give written notice to independence or board diversity requirements under the Nominating rules and Corporate Governance Committee regulations of each such nominee for Investor Director not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual Election MeetingNASDAQ; provided, that, if such Election Meeting is called for a date that is not within thirty (30) days before or after such anniversary date, the Investor shall give such notice not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the immediately preceding annual Election Meeting was mailed or public disclosure of the date of such Election Meeting was made, whichever first occurred; provided, further, however, that if the Investor fails to give such notice in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner; provided, further, that if the number of incumbent Investor Directors is less than the number of Investor any additional Directors the Investor is entitled to designate nominate shall be required to comply with applicable independence requirements under the rules and regulations of Nasdaq. (b) In the event that the Investor nominates any Investor Director Designees pursuant to Section 3.1(aclause (a) above, the Company shall (i) include the Investor Director Designees in its slate of nominees for election to the Company Board at the next annual or special meeting of the stockholders of the Company at which directors are to be elected (of the same class as the Directors to be elected at such meeting, to the extent the Company Board is a classified board) and (ii) recommend that the Company’s stockholders vote in favor of the election of such Investor Director Designee at any such annual or special meeting of the Company’s stockholders, and support such Investor Director Designee in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees (including, to the extent applicable, solicitation of proxies or consents in favor of such nominees), then subject in each case to the Issuer Directors’ fiduciary duties. The Company and the Company Board shall take all necessary actions to ensure that, at all times when the Investor shall use their respective reasonable best efforts Director Designee is eligible to mutually agree be appointed or nominated, there are sufficient vacancies on a Director or Directors the Company Board to satisfy the requirements of Section 3.1(a)permit such designation. (c) In The Investor shall have the event sole right to (subject to any limitations under the Investor Beneficially Owns a number Certificate of shares of Issuer Common Stock which would entitle Incorporation, the Investor Bylaws or any applicable Law) cause to nominate a number of Persons for election as a Director to the Issuer Board pursuant to Section 3.1(a) that is less than the number of Investor Directors on the Issuer Board at the time of determination, then the Investor will (x) designate in Investor’s sole discretion the resign any Investor Director at any time and to nominate, designate or Investor Directors who are appoint, as applicable (and subject to resign from any limitations under the Issuer Board so that Certificate of Incorporation, the number of Investor Directors on the Issuer Board is equal to the number of Persons Bylaws or any applicable Law), any replacement or successor thereof if the Investor is then entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a) and (y) use its reasonable best efforts to cause such Investor Director(s) to resign or otherwise be removed from the Issuer Boardrights hereunder. (d) In If an Investor Director ceases to serve on the event Company Board for any reason during his or her term, the vacancy created thereby shall be filled, and the Company Board shall fill such vacancy, with a new Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle the Director Designee and appoint such Investor to nominate a number of Persons for election as a Director to the Issuer Board pursuant Compensation Committee and/or the Nominating Committee, as applicable, subject to Section 3.1(a) that is greater than satisfaction of the number of Investor Directors on the Issuer Board at the time of determinationapplicable Committee Qualification Requirements, then the Issuer will promptly take such actions (including increasing the number of Persons constituting the entire Issuer Board) as are necessary to create the appropriate number of vacancies or newly-created directorships on the Issuer Board and will cause those Persons designated by the Investor to fill such vacancies or newly-created directorships so that the number of Investor Directors on the Issuer Board is equal in each case to the number of Persons extent the Investor is then entitled to nominate for election as a such rights hereunder. (e) For the avoidance of doubt, each Investor Director to the Issuer Board at such time pursuant to Section 3.1(a). Such Persons designated by Investor to fill such vacancies shall be appointed entitled to travel and expense reimbursement for their reasonable and documented out-of-pocket expenses (including air fare) incurred in connection with travelling to and from meetings of the class Company Board and/or any committee of the Company Board in which accordance with the vacancy occursCompany’s current reimbursement policy applicable to Directors generally. In addition, and(x) each Investor Director shall be entitled to enter into a customary indemnification agreement with the Company on terms that are, in the event that the number Company has entered into any such agreement with another non-employee Director, no less favorable than that provided to such other non-employee Director, and (y) the Company shall maintain in full force and effect directors’ and officers’ liability insurance containing terms that are no less favorable than those provided to other non-employee Directors. Each Investor Director shall be covered as an insured director, in such a manner as to provide each Investor Director in his or her capacity as a Director with rights and benefits under all directors’ and officers’ insurance policies no less favorable than those provided to any other non-employee Directors. The Company acknowledges and agrees that the Company is the indemnitor of Persons constituting the Issuer Board is increased, such Persons designated to fill such newly-created directorships shall first (resort with respect to any Investor Related Party who is an officer, director or other fiduciary of the first such Person) be appointed to the class of Directors on the Issuer Board that stood for election at the most recent Election Meeting prior Company and its Subsidiaries (i.e., its obligations to such appointment, Person are primary and then (with respect any obligation of any other Persons to each subsequent which such Person) Investor Director or its Affiliates may have rights to advancement of expenses or to indemnification for the class of Directors on the Issuer Board that stood for election at the next-most recent Election Meeting prior to same expenses or liabilities incurred by such appointmentInvestor Related Party are secondary).

Investor Directors. From For so long as, and after the Closingonly for so long as, the manner of selecting nominees for election to Investor Beneficially Owns Parent Class A Shares that in the Issuer Board will be as follows: (a) In connection with each annual or special meeting of shareholders aggregate comprise at least 20% of the Issuer at which Directors are to be elected (each such annual or special meeting, an “Election Meeting”)Outstanding Share Capital, the Investor shall have be entitled to nominate two and no more than two directors (the right "Investor Directors") to designate the Board, each of whom shall be a person that is reasonably acceptable to Parent (it being agreed for nomination for election as an this purpose that, subject to applicable legal requirements, any executive officer or member of the board of directors of the Company shall be acceptable to Parent); PROVIDED, that in the event that the Investor shall at any time cease to Beneficially Own Parent Class A Shares that in the aggregate comprise at least 20% of the Outstanding Share Capital but shall continue to Beneficially Own Parent Class A Shares that in the aggregate comprise at least 10% of the Outstanding Share Capital, the Investor shall thenceforth be entitled to nominate one and no more than one Investor Director such number under this Section 11 and Parent or any of Investor nominees so the Class B Entities may request that the total number of Investor Directors on the Issuer Board after giving effect to the election one of the Investor nominees is equal to Directors then on the product Board resign as a director of Parent and, upon such request, one of the Investor Voting Interest multiplied by the Total Number of DirectorsDirectors shall, in each case rounded up to the next whole number; provided, that, if the Investor Voting Interest is less than ten percent (10%), then and the Investor shall use best efforts to cause one of the Investor Directors to, resign immediately and relinquish all rights and privileges as a member of the Board; PROVIDED, FURTHER, that each of the Investor Directors shall in all cases be a director elected to the Board by the Parent Class B Shares. In the event that the Investor shall at any time cease to Beneficially Own Parent Class A Shares that in the aggregate comprise at least 10% of the Outstanding Share Capital, the Investor shall thenceforth not be entitled to nominate any Person as an Investor Director. (b) The Investor shall give written notice to the Nominating Directors under this Section 11 and Corporate Governance Committee of each such nominee for Investor Director not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date Parent or any of the immediately preceding annual Election Meeting; providedClass B Entities may request that any Investor Directors then on the Board resign as directors of Parent and, that, if upon such Election Meeting is called for a date that is not within thirty (30) days before or after such anniversary daterequest, the Investor shall give such notice not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the immediately preceding annual Election Meeting was mailed or public disclosure of the date of such Election Meeting was madeDirectors shall, whichever first occurred; provided, further, however, that if the Investor fails to give such notice in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner; provided, further, that if the number of incumbent Investor Directors is less than the number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(a), then the Issuer and the Investor shall use their respective its reasonable best efforts to, cause such Investor Directors to, resign immediately and relinquish all rights and privileges as a member of the Board. Prior to mutually the election of directors to the Board, the Investor may give reasonable advance written notice to Parent prior to the mailing of the proxy statement relating to such matters requesting that Parent include, and Parent and the Class B Entities (in their capacity as stockholders of Parent) agree on a Director or that Parent shall include, the Investor Directors as nominees for the slate of directors to satisfy be elected to the requirements of Section 3.1(a). (c) In Board. Notwithstanding the foregoing, in the event that the holders of the Class B Shares cease at any time to be entitled to elect 75% of the Board in accordance with the terms of the Parent Class B Shares, the Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle shall thenceforth no longer be entitled to any rights under this Section and the Investor to nominate a number agrees that, following such event, Parent may request that all or any of Persons for election as a Director to the Issuer Board pursuant to Section 3.1(a) that is less than the number of Investor Directors then on the Issuer Board at the time of determinationresign as Investor Directors, then and upon such request by Parent, the Investor will (x) designate in Investor’s sole discretion Directors shall, and the Investor Director or Investor Directors who are to resign from the Issuer Board so that the number of Investor Directors on the Issuer Board is equal to the number of Persons the Investor is entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a) and (y) shall use its reasonable best efforts to cause such Investor Director(s) to Directors to, resign or otherwise be removed from the Issuer Board. (d) In the event the as Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle the Investor to nominate a number of Persons for election Directors and relinquish all rights and privileges as a Director to member of the Issuer Board pursuant to Section 3.1(a) that is greater than the number of Investor Directors on the Issuer Board at the time next meeting of determinationstockholders of Parent called for the purpose of electing directors to the Board; PROVIDED, then that such Investor Directors may in any case be nominees as directors to the Issuer will promptly take such actions (including increasing Board at any meetings called for election of directors in accordance with this Agreement and with the number By-laws of Persons constituting Parent. Notwithstanding anything to the entire Issuer Board) as are necessary to create contrary in this Agreement, no more than 25% of the appropriate number of vacancies or newly-created directorships directors on the Issuer Board and will cause those Persons designated by (rounded up to the nearest whole director) shall be nominees of the Investor to fill such vacancies or newly-created directorships so that any Affiliate or Associate of the number of Investor Directors on the Issuer Board is equal to the number of Persons the Investor is entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a). Such Persons designated by Investor to fill such vacancies shall be appointed to the class in which the vacancy occurs, and, in the event the number of Persons constituting the Issuer Board is increased, such Persons designated to fill such newly-created directorships shall first (with respect to the first such Person) be appointed to the class of Directors on the Issuer Board that stood for election at the most recent Election Meeting prior to such appointment, and then (with respect to each subsequent such Person) to the class of Directors on the Issuer Board that stood for election at the next-most recent Election Meeting prior to such appointmentInvestor.

Investor Directors. From For so long as, and after the Closingonly for so long as, the manner of selecting nominees for election to Investor Beneficially Owns Parent Class A Shares that in the Issuer Board will be as follows: (a) In connection with each annual or special meeting of shareholders aggregate comprise at least 20% of the Issuer at which Directors are to be elected (each such annual or special meeting, an “Election Meeting”)Outstanding Share Capital, the Investor shall have be entitled to nominate two and no more than two directors (the right "Investor Directors") to designate the Board, each of whom shall be a person that is reasonably acceptable to Parent (it being agreed for nomination for election as an this purpose that, subject to applicable legal requirements, any executive officer or member of the board of directors of the Company shall be acceptable to Parent); provided, that in the event that the Investor shall at any time cease to Beneficially Own Parent Class A Shares that in the aggregate comprise at least 20% of the Outstanding Share Capital but shall continue to Beneficially Own Parent Class A Shares that in the aggregate comprise at least 10% of the Outstanding Share Capital, the Investor shall thenceforth be entitled to nominate one and no more than one Investor Director such number under this Section 11 and Parent or any of Investor nominees so the Class B Entities may request that the total number of Investor Directors on the Issuer Board after giving effect to the election one of the Investor nominees is equal to Directors then on the product Board resign as a director of Parent and, upon such request, one of the Investor Voting Interest multiplied by Directors shall, and the Total Number Investor shall use best efforts to cause one of Directorsthe Investor Directors to, in each case rounded up to resign immediately and relinquish all rights and privileges as a member of the next whole numberBoard; provided, thatfurther, if that each of the Investor Voting Interest is less than ten percent (10%), then Directors shall in all cases be a director elected to the Board by the Parent Class B Shares. In the event that the Investor shall at any time cease to Beneficially Own Parent Class A Shares that in the aggregate comprise at least 10% of the Outstanding Share Capital, the Investor shall thenceforth not be entitled to nominate any Person as an Investor Director. (b) The Investor shall give written notice to the Nominating Directors under this Section 11 and Corporate Governance Committee of each such nominee for Investor Director not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date Parent or any of the immediately preceding annual Election Meeting; providedClass B Entities may request that any Investor Directors then on the Board resign as directors of Parent and, that, if upon such Election Meeting is called for a date that is not within thirty (30) days before or after such anniversary daterequest, the Investor shall give such notice not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the immediately preceding annual Election Meeting was mailed or public disclosure of the date of such Election Meeting was madeDirectors shall, whichever first occurred; provided, further, however, that if the Investor fails to give such notice in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner; provided, further, that if the number of incumbent Investor Directors is less than the number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(a), then the Issuer and the Investor shall use their respective its reasonable best efforts to, cause such Investor Directors to, resign immediately and relinquish all rights and privileges as a member of the Board. Prior to mutually the election of directors to the Board, the Investor may give reasonable advance written notice to Parent prior to the mailing of the proxy statement relating to such matters requesting that Parent include, and Parent and the Class B Entities (in their capacity as stockholders of Parent) agree on a Director or that Parent shall include, the Investor Directors as nominees for the slate of directors to satisfy be elected to the requirements of Section 3.1(a). (c) In Board. Notwithstanding the foregoing, in the event that the holders of the Class B Shares cease at any time to be entitled to elect 75% of the Board in accordance with the terms of the Parent Class B Shares, the Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle shall thenceforth no longer be entitled to any rights under this Section and the Investor to nominate a number agrees that, following such event, Parent may request that all or any of Persons for election as a Director to the Issuer Board pursuant to Section 3.1(a) that is less than the number of Investor Directors then on the Issuer Board at the time of determinationresign as Investor Directors, then and upon such request by Parent, the Investor will (x) designate in Investor’s sole discretion Directors shall, and the Investor Director or Investor Directors who are to resign from the Issuer Board so that the number of Investor Directors on the Issuer Board is equal to the number of Persons the Investor is entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a) and (y) shall use its reasonable best efforts to cause such Investor Director(s) to Directors to, resign or otherwise be removed from the Issuer Board. (d) In the event the as Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle the Investor to nominate a number of Persons for election Directors and relinquish all rights and privileges as a Director to member of the Issuer Board pursuant to Section 3.1(a) that is greater than the number of Investor Directors on the Issuer Board at the time next meeting of determinationstockholders of Parent called for the purpose of electing directors to the Board; provided, then that such Investor Directors may in any case be nominees as directors to the Issuer will promptly take such actions (including increasing Board at any meetings called for election of directors in accordance with this Agreement and with the number By-laws of Persons constituting Parent. Notwithstanding anything to the entire Issuer Board) as are necessary to create contrary in this Agreement, no more than 25% of the appropriate number of vacancies or newly-created directorships directors on the Issuer Board and will cause those Persons designated by (rounded up to the nearest whole director) shall be nominees of the Investor to fill such vacancies or newly-created directorships so that any Affiliate or Associate of the number of Investor Directors on the Issuer Board is equal to the number of Persons the Investor is entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a). Such Persons designated by Investor to fill such vacancies shall be appointed to the class in which the vacancy occurs, and, in the event the number of Persons constituting the Issuer Board is increased, such Persons designated to fill such newly-created directorships shall first (with respect to the first such Person) be appointed to the class of Directors on the Issuer Board that stood for election at the most recent Election Meeting prior to such appointment, and then (with respect to each subsequent such Person) to the class of Directors on the Issuer Board that stood for election at the next-most recent Election Meeting prior to such appointmentInvestor.

Investor Directors. From and after the Closing, the manner of selecting nominees for election to the Issuer Board will be as follows: (a) In connection with each annual or special meeting of shareholders of the Issuer at which Directors are to be elected (each such annual or special meeting, an “Election Meeting”), the The Investor shall have the right initially be entitled to designate for nomination for election as an Investor two (2) Directors (inclusive of Txxxxxxx Xxxxxxx, who is already a Director). Following the appointment of the Initial Director such Designees to the Company Board, the number of Directors the Investor nominees so that shall be entitled to designate for nomination to the total Company Board shall: (y) increase and decrease automatically to a number of Investor Directors on the Issuer Board after giving effect to the election of the Investor nominees is equal to the product product, rounded to the nearest whole number, of (i) the number of shares of Company Common Stock beneficially owned by the Investor (including any shares of Company Common Stock which are then issuable upon conversion of shares of Series A Preferred Stock held by the Investor) divided by the number of shares of Company Common Stock then outstanding (plus any shares of Company Common Stock issuable upon conversion of shares of Series A Preferred Stock included in clause (i)) and (ii) the size of the Investor Voting Interest multiplied by the Total Number of DirectorsCompany Board (e.g., in each case 2.4 will be rounded down to 2 and 2.5 will be rounded up to the next whole number; 3), provided, thathowever, if that in no event shall the number of Directors the Investor Voting Interest is less than shall be entitled to designate for nomination to the Company Board pursuant to this Agreement represent the majority of the Directors; and (z) decrease to one (1) Director in the event the Investor ceases to beneficially own at least ten percent (10%), ) of the then outstanding shares of Company Common Stock and to zero (0) Directors in the event the Investor ceases to beneficially own at least five percent (5%) of the then outstanding shares of Company Common Stock, in each case including any shares of Company Common Stock which are then issuable upon conversion of shares of Series A Preferred Stock held by the Investor). The appointment of any such Investor Director Designees pursuant hereto shall be subject to such Persons’ satisfaction of the Director Qualification Standards; provided, that so long as the Investor is entitled to nominate no more than two (2) Directors, such Directors shall not be entitled required to nominate comply with any Person as an Investor Director. (b) The Investor shall give written notice to independence or board diversity requirements under the Nominating rules and Corporate Governance Committee regulations of each such nominee for Investor Director not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual Election MeetingNASDAQ; provided, that, if such Election Meeting is called for a date that is not within thirty (30) days before or after such anniversary date, the Investor shall give such notice not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the immediately preceding annual Election Meeting was mailed or public disclosure of the date of such Election Meeting was made, whichever first occurred; provided, further, however, that if the Investor fails to give such notice in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner; provided, further, that if the number of incumbent Investor Directors is less than the number of Investor any additional Directors the Investor is entitled to designate nominate shall be required to comply with applicable independence requirements under the rules and regulations of Nasdaq. (b) In the event that the Investor nominates any Investor Director Designees pursuant to Section 3.1(aclause (a) above, the Company shall (i) include the Investor Director Designees in its slate of nominees for election to the Company Board at the next annual or special meeting of the stockholders of the Company at which directors are to be elected (of the same class as the Directors to be elected at such meeting, to the extent the Company Board is a classified board) and (ii) recommend that the Company’s stockholders vote in favor of the election of such Investor Director Designee at any such annual or special meeting of the Company’s stockholders, and support such Investor Director Designee in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees (including, to the extent applicable, solicitation of proxies or consents in favor of such nominees), then subject in each case to the Issuer Directors’ fiduciary duties. The Company and the Company Board shall take all necessary actions to ensure that, at all times when the Investor shall use their respective reasonable best efforts Director Designee is eligible to mutually agree be appointed or nominated, there are sufficient vacancies on a Director or Directors the Company Board to satisfy the requirements of Section 3.1(a)permit such designation. (c) In The Investor shall have the event sole right to (subject to any limitations under the Investor Beneficially Owns a number Certificate of shares of Issuer Common Stock which would entitle Incorporation, the Investor Bylaws or any applicable Law) cause to nominate a number of Persons for election as a Director to the Issuer Board pursuant to Section 3.1(a) that is less than the number of Investor Directors on the Issuer Board at the time of determination, then the Investor will (x) designate in Investor’s sole discretion the resign any Investor Director at any time and to nominate, designate or Investor Directors who are appoint, as applicable (and subject to resign from any limitations under the Issuer Board so that Certificate of Incorporation, the number of Investor Directors on the Issuer Board is equal to the number of Persons Bylaws or any applicable Law), any replacement or successor thereof if the Investor is then entitled to nominate for election as a Director to the Issuer Board at such time pursuant to Section 3.1(a) and (y) use its reasonable best efforts to cause such Investor Director(s) to resign or otherwise be removed from the Issuer Boardrights hereunder. (d) In If an Investor Director ceases to serve on the event Company Board for any reason during his or her term, the vacancy created thereby shall be filled, and the Company Board shall fill such vacancy, with a new Investor Beneficially Owns a number of shares of Issuer Common Stock which would entitle the Director Designee and appoint such Investor to nominate a number of Persons for election as a Director to the Issuer Board pursuant Compensation Committee and/or the Nominating Committee, as applicable, subject to Section 3.1(a) that is greater than satisfaction of the number of Investor Directors on the Issuer Board at the time of determinationapplicable Committee Qualification Requirements, then the Issuer will promptly take such actions (including increasing the number of Persons constituting the entire Issuer Board) as are necessary to create the appropriate number of vacancies or newly-created directorships on the Issuer Board and will cause those Persons designated by the Investor to fill such vacancies or newly-created directorships so that the number of Investor Directors on the Issuer Board is equal in each case to the number of Persons extent the Investor is then entitled to nominate for election as a such rights hereunder. (e) For the avoidance of doubt, each Investor Director to the Issuer Board at such time pursuant to Section 3.1(a). Such Persons designated by Investor to fill such vacancies shall be appointed entitled to travel and expense reimbursement for their reasonable and documented out-of-pocket expenses (including air fare) incurred in connection with travelling to and from meetings of the class Company Board and/or any committee of the Company Board in which accordance with the vacancy occursCompany’s current reimbursement policy applicable to Directors generally. In addition, and(x) each Investor Director shall be entitled to enter into a customary indemnification agreement with the Company on terms that are, in the event that the number Company has entered into any such agreement with another non-employee Director, no less favorable than that provided to such other non-employee Director, and (y) the Company shall maintain in full force and effect directors’ and officers’ liability insurance containing terms that are no less favorable than those provided to other non-employee Directors. Each Investor Director shall be covered as an insured director, in such a manner as to provide each Investor Director in his or her capacity as a Director with rights and benefits under all directors’ and officers’ insurance policies no less favorable than those provided to any other non-employee Directors. The Company acknowledges and agrees that the Company is the indemnitor of Persons constituting the Issuer Board is increased, such Persons designated to fill such newly-created directorships shall first (resort with respect to any Investor Related Party who is an officer, director or other fiduciary of the first such Person) be appointed to the class of Directors on the Issuer Board that stood for election at the most recent Election Meeting prior Company and its Subsidiaries (i.e., its obligations to such appointment, Person are primary and then (with respect any obligation of any other Persons to each subsequent which such Person) Investor Director or its Affiliates may have rights to advancement of expenses or to indemnification for the class of Directors on the Issuer Board that stood for election at the next-most recent Election Meeting prior to same expenses or liabilities incurred by such appointmentInvestor Related Party are secondary).