Common use of Board Representation Clause in Contracts

Board Representation. (a) The Company shall at or prior to the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date). (c) In the event any nominee of the Purchasers shall cease to serve as a director for any reason, the Company shall use its best efforts to cause the vacancy resulting thereby to be filled by a nominee of the Purchasers.

Board Representation. (a) The Subject at all times to Sections 2(b) and 3(n) herein, during the period beginning at the closing of the IPO until the earliest of (a) the twelfth anniversary of the date of the closing of the IPO; (b) such time as the Investor and its Affiliates no longer beneficially owns at least 7,500,000 Series C Shares or the equivalent of any successor securities issued upon conversion of such Series C Shares (including shares of voting common stock issued upon conversion of non-voting common stock issued upon conversion of the Series C Shares) (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such Series C Shares), or (c) following the third year anniversary of the IPO, (i) with respect to one of its two Investor Designees, such time as the Investor holds less than 20% of the as-converted securities of the Company, and (ii) with respect to both of its Investor Designees, such time as the Investor holds less than 5% of the as-converted securities of the Company, the Company shall at or prior to support the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directorsnomination of, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be (or the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons nominating committee thereof), subject to the Board requirements of Directorsfiduciary duties under applicable law, to recommend and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included include in the slate of nominees recommended by the Board to the Company's ’s stockholders for election as directorsdirectors of the Company at each annual or special meeting of the Company’s stockholders at which directors are to be elected (an “Election Meeting”), two (2) persons designated at any time and from time to time by the Investor (each an “Investor Designee”); provided that, the Company shall use its best efforts have no obligation to support the nomination of or cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting to include in the slate of the Chief Executive Officer of nominees recommended to the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees ’s stockholders for election as directors of the Company an Investor Designee if the Investor already has at least two Investor Designees serving as directors on the Board of Directors at the first Annual time of the Election Meeting and the term(s) of Stockholders following such Investor Designee(s) as a director on the Closing (which Annual Meeting shall occur Board of Directors does not earlier than 180 days following the Closing Date). (c) expire at such Election Meeting. In the event any nominee that an Investor Designee resigns from his or her seat on the Board of the Purchasers shall cease Directors or is removed or otherwise fails to serve as become or ceases to be a director for any reason, the vacancy will be filled by the election or appointment of another Investor Designee nominated by the Investor as soon as reasonably practicable in compliance with applicable laws, rules and regulations. The Investor will provide the Company, in writing, the information about any Investor Designee that is reasonably required by applicable law promptly after the Company requests such information from the Investor, and will cause any Investor Designee to submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its outside directors generally. (b) Notwithstanding the provisions of Section 2(a), the Investor shall not be entitled to designate any person as a nominee to the Board of Directors if (i) a majority of the disinterested members of the Board of Directors reasonably and in good faith determines, after consultation with the Company’s outside legal counsel, that such person would not be qualified to serve as a director of the Company under any applicable law (including requirements of fiduciary duties under applicable law), rule or regulation, rule of the stock exchange on which the Company’s shares are listed, the Bylaws or any policy, or guidelines previously approved by the Board of Directors or (ii) such person is not approved for nomination by the Board of Directors (or the nominating committee thereof). The Company shall notify the Investor as soon as reasonably practicable of any objection to an Investor Designee pursuant to this Section 2(b) as to enable the Investor to propose a replacement Investor Designee in accordance with the terms of this Agreement. The Investor shall use its reasonable best efforts to cause propose an Investor Designee sufficiently in advance of the vacancy resulting thereby date on which the proxy materials are to be filled mailed by a nominee the Company in connection with an Election Meeting to allow for inclusion of the Purchasersan Investor Designee in such proxy materials.

Board Representation. (a) Subject to Sections 2(b) and 3(n) below, beginning on the ninety first (91st) day following the date of effectiveness of the Company’s registration statement on Form S-1 related to the IPO, at any time at which the Investor and its Affiliates, collectively, beneficially own (i) the Required Shares and (ii) at least 4.9% of the Company’s then-outstanding voting Common Stock, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company, one (1) person designated at any time and from time to time by the Investor (the “Investor Designee”). In the event that the Investor Designee resigns his or her seat on the Board of Directors or is removed or otherwise fails to become or ceases to be a director for any reason, the Company shall cause the vacancy to be filled by the election or appointment of another director nominated by the Investor as soon as reasonably practicable in compliance with applicable laws, rules and regulations. Investor will provide the Company, in writing, the information about the Investor Designee that is reasonably required by applicable law for inclusion in the Company’s proxy materials for meetings of stockholders promptly after the Company requests such information from the Investor, and will cause the Investor Designee to submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its outside directors generally. (b) Notwithstanding the provisions of Section 2(a), the Investor shall not designate a particular individual as a nominee to the Board of Directors if a majority of the disinterested members of the Board of Directors reasonably and in good faith determines, after consultation with the Company’s outside legal counsel and upon written advice of such counsel, that such person would not be qualified to serve as a director of the Company under applicable law, rule or regulation, rule of the stock exchange on which the Company’s shares are listed or the Bylaws. The Company shall at or prior notify the Investor of any objection to an Investor Designee pursuant to this Section 2(b) sufficiently in advance of the Closing Date cause three vacanciesdate on which the proxy materials related to any such designee are to be mailed by the Company in connection with such election of directors, constituting a majority of and in no event less than the first business day after such determination by the Board of Directors, so as to enable the Investor to propose a replacement Investor Designee in accordance with the terms of this Agreement. (c) Subject at all times to Section 3(n) below and the other limitations set forth in this Section 2(c), during the period beginning at the closing of the IPO until such time as the Investor and its Affiliates, collectively, no longer beneficially own the Required Shares, the Company shall invite a designee of the Investor (the “Observer”) to attend all meetings of the Board of Directors and each committee thereof in a nonvoting observer capacity. In this respect, the Company shall give the Observer copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to information so provided; and provided, further, that the Company reserves the right to withhold any information and to exclude the Observer from any meeting or portion thereof that the (A) Board of Directors determines based upon the advice of outside counsel that (i) access to such information or attendance at such meeting would adversely affect the attorney-client privilege between the Company and its counsel or (ii) such information or attendance at such meeting would result in a conflict of interest or (B) (i) the Board of Directors reasonably determines in good faith that the Observer or an Affiliate of the Observer is a competitor of the Company, or (ii) to protect trade secrets. With respect to the Observer, the Company’s obligations under this Section 2(c) are contingent upon such Observer’s (x) entering into a confidentiality agreement with the Company in a form that is reasonably acceptable to the Company and the Investor and (y) agreeing to be created on its Board of Directors, and on bound by the Closing Date shall cause each of Messrs. Company’s i▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers window policies then in effect and applicable to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority members of the Board of Directors. The Company shall cause such nominees of Additionally, the Purchasers to rights set forth in this Section 2(c) may only be included in the slate of nominees recommended exercised by the Board to Investor at such time or times when no Investor Designee is on the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date)Directors. (c) In the event any nominee of the Purchasers shall cease to serve as a director for any reason, the Company shall use its best efforts to cause the vacancy resulting thereby to be filled by a nominee of the Purchasers.

Board Representation. (a) The Subject at all times to Sections 2(b) and 3(n) herein, during the period beginning at the closing of the IPO until the earliest of (a) the twelfth anniversary of the date of the closing of the IPO; (b) such time as the Investors and their respective Affiliates no longer beneficially own, collectively, at least 6,250,000 Series C Shares or the equivalent of any successor securities issued upon conversion of such Series C Shares (including shares of voting common stock issued upon conversion of non-voting common stock issued upon conversion of the Series C Shares) (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such Series C Shares), or (c) following the third year anniversary of the IPO, such time as the Investors collectively hold less than 5% of the as-converted securities of the Company, the Company shall at or prior to support the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directorsnomination of, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be (or the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons nominating committee thereof), subject to the Board requirements of Directorsfiduciary duties under applicable law, to recommend and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included include in the slate of nominees recommended by the Board to the Company's ’s stockholders for election as directorsdirectors of the Company at each annual or special meeting of the Company’s stockholders at which directors are to be elected (an “Election Meeting”), one (1) person designated at any time and from time to time by the mutual consent of the Investors (an “Investor Designee”); provided that, the Company shall use its best efforts have no obligation to support the nomination of or cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting to include in the slate of the Chief Executive Officer of nominees recommended to the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees ’s stockholders for election as directors of the Company an Investor Designee if the Investors already have an Investor Designee serving as a director on the Board of Directors at the first Annual time of the Election Meeting and the term(s) of Stockholders following such Investor Designee(s) as a director on the Closing (which Annual Meeting shall occur Board of Directors does not earlier than 180 days following the Closing Date). (c) expire at such Election Meeting. In the event any nominee that an Investor Designee resigns from his or her seat on the Board of the Purchasers shall cease Directors or is removed or otherwise fails to serve as become or ceases to be a director for any reason, the vacancy will be filled by the election or appointment of another Investor Designee nominated by the Investors as soon as reasonably practicable in compliance with applicable laws, rules and regulations. The Investors will provide the Company, in writing, the information about any Investor Designee that is reasonably required by applicable law promptly after the Company requests such information from the Investors, and will cause any Investor Designee to submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its outside directors generally. (b) Notwithstanding the provisions of Section 2(a), the Investors shall not be entitled to designate any person as a nominee to the Board of Directors if (i) a majority of the disinterested members of the Board of Directors reasonably and in good faith determines, after consultation with the Company’s outside legal counsel, that such person would not be qualified to serve as a director of the Company under any applicable law (including requirements of fiduciary duties under applicable law), rule or regulation, rule of the stock exchange on which the Company’s shares are listed, the Bylaws or any policy, or guidelines previously approved by the Board of Directors or (ii) such person is not approved for nomination by the Board of Directors (or the nominating committee thereof). The Company shall notify the Investors as soon as reasonably practicable of any objection to an Investor Designee pursuant to this Section 2(b) as to enable the Investors to propose a replacement Investor Designee in accordance with the terms of this Agreement. The Investors shall use its reasonable best efforts to cause propose an Investor Designee sufficiently in advance of the vacancy resulting thereby date on which the proxy materials are to be filled mailed by a nominee the Company in connection with an Election Meeting to allow for inclusion of the Purchasersan Investor Designee in such proxy materials.

Board Representation. (a1) The Company As at the Effective Date, Foremost shall at or prior appoint to the Closing Date cause three vacanciesBoard one (1) individual nominated by ▇▇▇▇▇▇▇ and acceptable to the Board, constituting a majority acting reasonably, and the Exchange to serve until the next meeting of the Board of Directors, Foremost shareholders at which directors are proposed to be created on its elected (each such meeting, a “Board of Directors, Election Meeting”). ▇▇▇▇▇▇▇ has designated and on the Closing Date shall cause each of Messrs. Foremost has accepted ▇▇▇▇▇ ▇▇▇▇▇ as such appointee. (2) At the first Board Election Meeting following the Effective Date, and at each subsequent Board Election Meeting until such time as the ▇▇▇▇▇▇▇ Common Share Interest is less than 15%, Foremost shall propose for shareholder approval: (a) a Board comprised of six (6) members; and (b) the nomination for election of two (2) persons designated by ▇▇▇▇▇▇▇ and acceptable to Foremost, acting reasonably (each a “Director Nominee”); and use commercially reasonable efforts to obtain shareholder approval for such matters; provided that in the event the size of the Board is increased or decreased, the number of Director Nominees which ▇▇▇▇▇▇▇ is entitled to nominate shall also be increased or decreased to maintain the same proportional representation. (3) In the event that the ▇▇▇▇▇▇▇ Common Share Interest is reduced to below 15%, who have been designated by but is equal to or greater than 5%, following the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Effective Date, one member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ shall be entitled to have one (1) nominee for election to the Board and, unless otherwise agreed with ▇▇▇▇▇▇▇: (a) on the written request of ▇▇▇▇▇▇▇▇, if ▇▇▇▇▇▇▇ had two (2) Director Nominees, ▇▇▇▇▇▇▇ will cause one (1) of its Director Nominees of its choosing to resign as a Director of Foremost as soon as practicable, and in any event within 10 days of such written request from Foremost; and (b) at each subsequent meeting of Foremost’s shareholders at which shall recommend two nominees Directors of Foremost are elected: (i) nominate for election as directors at to the first Annual Meeting of Stockholders following the Closing Board one (which Annual Meeting shall occur not earlier than 180 days following the Closing Date)1) Director Nominee, and (ii) use commercially reasonable efforts to obtain shareholder approval for such election. (c4) Any person designated or nominated pursuant to this Section 2.1 shall consent to being a Director as required by the Act, shall have the qualifications to serve as a Director of a Canadian reporting issuer and on the Exchange, and shall not be disqualified from being a Director under the Act or by applicable Canadian securities regulatory authorities or the Exchange. (5) ▇▇▇▇▇▇▇ will use commercially reasonable efforts to designate Director Nominees who are “independent” within the meaning of National Instrument 58-101 Disclosure of Corporate Governance Practices and will use commercially reasonable efforts to designate a Director Nominee who will facilitate Foremost achieving greater Board diversity, including as may be required by Law, including Applicable Securities Laws. (6) If at any time a Board Election Meeting is to be called, including as required to give effect to this Section 2.1, ▇▇▇▇▇▇▇ shall provide the name(s) of the Director Nominee(s) at least 30 calendar days in advance of the anticipated mailing date of the management information circular for such Board Election Meeting and Foremost shall present such individual as part of management’s list of Director Nominees, provided however that Foremost shall give ▇▇▇▇▇▇▇ at least 60 calendar days’ notice of the anticipated mailing date for such management information circular. (7) If ▇▇▇▇▇▇▇ fails to deliver notice to Foremost of its Director Nominee(s) at least 30 calendar days in advance of the anticipated mailing date of the management information circular for such Board Election Meeting, ▇▇▇▇▇▇▇ shall be deemed to have designated the same Director Nominee(s) previously designated by it that serves as a Foremost Director(s) at such time. (8) If any Director Nominee ceases to be a Director of Foremost for any reason, ▇▇▇▇▇▇▇ shall have the right to nominate another nominee to fill the vacancy thereby created, and as soon as reasonably possible following that nomination, Foremost shall fill the vacancy by appointing that nominee as a Director. (9) In the event that the ▇▇▇▇▇▇▇ Common Share Interest is reduced to below 5% following the Effective Date, on the request of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ will cause its Director Nominee(s) to resign as a Director(s) of Foremost as soon as practicable, and in any nominee event within 21 days thereof. (10) ▇▇▇▇▇▇▇’▇ nomination rights pursuant to this Section 2.1, once reduced or eliminated in accordance with this Section 2.1, may not be re-acquired in the future in the event that ▇▇▇▇▇▇▇ subsequently acquires Common Shares in excess of the Purchasers shall cease applicable thresholds set forth above, except acquisitions completed pursuant to serve as a director for ▇▇▇▇▇▇▇’▇ exercise of its Participation Rights. For greater certainty, if an issuance of Equity Securities by Foremost would reduce ▇▇▇▇▇▇▇’▇ aggregate interest in Common Shares below any reasonof the thresholds contemplated by this Section 2.1, the Company nomination rights shall use its best efforts to cause continue until the vacancy resulting thereby to be filled by a nominee closing of the Purchasersapplicable Subsequent Offering or Subsequent Issuance to which ▇▇▇▇▇▇▇’▇ Participation Rights apply until such rights expire.

Board Representation. (a) The In connection with the closing under the Initial Purchase Agreement and as required under the Original Agreement, the Company shall at or prior to increased the Closing Date cause three vacancies, constituting a majority size of the Board of Directors, to be created on its Board of Directorsby one member, and on the Closing Date shall cause each of Messrs. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”) was appointed to the Board as a member of the class whose initial term expires at the 2016 annual meeting of the Company’s stockholders. (b) The size of the Board shall initially be set at nine members. (c) Subject to Section 2(a), the Company shall continue to cause ▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇▇▇ is unavailable to continue to serve on the Board, such other person designated by ▇▇▇▇▇▇▇ and reasonably acceptable to the Company) to be nominated by the Company to serve on the Board (such director, the “Purchaser Designee”) for so long as the ▇▇▇▇▇▇▇ Family Foundation (or an Affiliate thereof) has beneficial ownership of shares of Common Stock (including the number of shares of Common Stock issuable upon the conversion or exercise of any convertible securities or warrants), in the aggregate, in an amount equal to at least 50% of the shares of Common Stock issued to the ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons ▇ Family Foundation pursuant to the Board of Directors, and at each annual meeting of stockholders of Initial Purchase Agreement (including the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock issuable upon exercise of the Company then outstanding on a fully diluted basis, warrants issued pursuant to such agreement). In the Purchasers shall be entitled to nominate (in addition to any rights granted to event the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ Family Foundation (or an Affiliate thereof) no longer has beneficial ownership of such shares in the amount set forth in this Section 2(c), the Company may cause the Purchaser Designee to be replaced with a nominee acceptable to the Company. (d) The Purchaser Designee shall, when up for election, subject to the terms hereof and applicable law, be the Company’s nominee to serve on the Board and the Company shall solicit proxies for the Purchaser Designee to the same extent as it would for any of its other nominees to the Board. The Company’s proxy statement for the election of directors shall include the Purchaser Designee and the recommendation of the Board in favor of election of the Purchaser Designee. (e) For so long as such membership does not conflict with any applicable law or regulation or listing requirement of Nasdaq or other securities exchange on which the Common Stock is listed for trading (as determined in good faith by the Board), the Purchaser Designee shall be entitled to serve as a member of, or observer to, at such Purchaser Designee’s election, committees of the Board. (f) ▇▇▇▇▇▇▇ may, and ▇▇▇▇▇▇▇ may request the Purchaser Designee to, which as the case may be, resign, at any time with or without cause. Any vacancy caused by the resignation of the Purchaser Designee shall recommend two nominees only be filled with another Purchaser Designee. Any vacancy created by any removal of the Purchaser Designee or an election of ▇▇▇▇▇▇▇ to defer appointing the Purchaser Designee shall also only be filled with another Purchaser Designee. The Company shall not take any action to remove the Purchaser Designee or fill a vacancy reserved for election the Purchaser Designee in each case without the consent of ▇▇▇▇▇▇▇ unless and until ▇▇▇▇▇▇▇ is no longer entitled to the Purchaser Designee in accordance with Section 2(c) above. (g) In addition to any other indemnification rights the Purchaser Designee has pursuant to the Transaction Documents and the Company’s Certificate of Incorporation and Bylaws, the Purchaser Designee that serves on the Board shall have the right to enter into, and the Company agrees to enter into, an indemnification agreement, in a form reasonably satisfactory to the Purchaser Designee, concurrent with such Purchaser Designee becoming a member of the Board. The Company shall maintain director and officer insurance covering the Purchaser Designee on the same terms and with the same amount of coverage as directors is provided to other members of the Board. The Company shall reimburse the reasonable expenses incurred by the Purchaser Designee in connection with attending (whether in person or telephonically) all meetings of the Board or committees thereof or other Company related meetings to the same extent as all other members of the Board are reimbursed for such expenses (or, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other non-employee directors). The Purchaser Designee shall be entitled to the same compensation for service on the Board, including, without limitation, cash fees, stock options, deferred share units, restricted stock and other equity and equity-related awards, as is provided to other non-employee directors. (h) The Company and the Purchasers shall take or cause to be taken all lawful action necessary to ensure at the first Annual Meeting all times as of Stockholders and following the Closing (which Annual Meeting shall occur Date that the Company’s Certificate of Incorporation and Bylaws are not earlier than 180 days following inconsistent with the Closing Date)provisions of this Agreement and the Transaction Documents or the transactions contemplated hereby or thereby. (c) In the event any nominee of the Purchasers shall cease to serve as a director for any reason, the Company shall use its best efforts to cause the vacancy resulting thereby to be filled by a nominee of the Purchasers.

Board Representation. (a) The Effective as of the Closing, for such period of time as Stockholder continues to Beneficially Own Shares that constitute not less than 15% of all of the issued and outstanding Shares, the Company shall at or cause such number of persons, equaling not less than 20% of the total number of directors on the Board and designated by Stockholder in a written Stockholder Nominee Notice (a "Stockholder Nominee Notice") delivered to the Company not less than 60 days prior to the Closing Date cause three vacancies, constituting a majority annual meeting of the Board Stockholders of Directorsthe Company, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated nominated by the Purchasers Nominating Committee for election or reelection to be elected to its the Board of Directors. For at least two (2) years after the Closing Date, one member next annual meeting of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer Stockholders of the Company. (b) Commencing with In the event that Stockholder ceases to Beneficially Own at least 15%, but continues to Beneficially Own more than 10%, of the Shares, the Company agrees to cause the Nominating Committee to nominate one person designated by Stockholder in a Stockholder Nominee Notice, delivered to the Company not less than 60 days prior to the annual meeting of stockholders of the Company immediately following the election of such persons to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer Stockholders of the Company, a for election or reelection to the Board at the next annual meeting of the Stockholders of the Company; provided, however, that in the event that Stockholder ceases to Beneficially Own at least 15% of the Shares, the directors who were not designated by Stockholder may, by majority vote of such directors at any time, request such number of directors designated by Stockholder to resign from the Board so only one director designated by Stockholder remains on the Purchaser Board, and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which Stockholder shall recommend two nominees for election as immediately cause such director or directors at to resign from the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date)Board. (c) In the event any nominee that Stockholder ceases to Beneficially Own more than 5% of the Purchasers shall cease to serve as a director for any reasonShares, the Company shall use its best efforts to cause the vacancy resulting thereby to be filled directors who were not designated by a nominee Stockholder may, by majority vote of such directors at any time, request any or all of the Purchasersdirectors designated by Stockholder to resign from the Board, and Stockholder shall immediately cause such director or directors to resign from the Board.

Board Representation. (a) The Company shall at or prior to the Closing Date promptly cause three vacancies, constituting a majority of the Board of Directors, two vacancies to be created on its Board of Directors, and on Directors (by increasing the Closing Date shall cause each number of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be an independent director and one director shall be the Chief Executive Officer selected to fill such vacancies. One of the Companypersons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with the such next succeeding annual meeting of stockholders of the Company immediately following the election of such persons referred to the Board of Directorsin Section 8.10(a), and at each annual meeting of stockholders of the Company thereafter, (i) so long as the Purchasers hold (A) Fund holds 50% of the shares of Preferred Stock or Common Stock, Stock issued or (B) issuable upon conversion of the Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in (whether or not the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basisPreferred Shares have been converted) acquired by it under this Agreement, the Purchasers Fund shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of designate two directors to the Company's Board of Directors that would constitute a majority (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such nominees designees (unless, after customary investigation of any such person's qualifications, the Purchasers Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its reasonable best efforts to cause the election of such nomineesdesignees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such personsperson. The Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors shall appoint a Nominating Committee, consisting by virtue of the Chief Executive Officer first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, a director designated by and to designate one person who shall be entitled to attend all meetings of the Purchaser Board of Directors and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting committees thereof and to receive minutes of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date)all such meetings upon preparation thereof. (c) In the event any nominee designee of the Purchasers Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a nominee designee of the PurchasersFund (or at the Fund's written election, by an Additional Investor).

Board Representation. (a) The Company Stockholders, collectively, shall at or prior have the right to the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. designate either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇, as they may choose, for election to the Company's board of directors by such board at the closing of the transactions contemplated by the Purchase Agreement, to serve until the next annual meeting of the stockholders of the Company. Thereafter, if any one of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇ (i) holds at least 400,000 shares of Common Stock (which threshold number of shares shall automatically be adjusted from time to time to reflect increases, decreases or exchanges in, or the distribution of additional or different securities in respect of, the Common Stock as a result of any recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction) and (ii) is either an employee of the Company or is subject to the noncompetition covenants of Article VII of the Purchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company ((i) and (ii) above, the "Board Qualifications"), the Company agrees to cause such Stockholder to be included in management's slate of nominees for election at each annual meeting of the stockholders of the Company at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. If, however, both ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ meet the Board Qualifications, who have been designated by the Purchasers Stockholders shall choose one of them to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the nominated for election of such persons to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of and the Board of Directors. The Company shall agrees to cause such nominees of the Purchasers Stockholder so chosen to be included in the management's slate of nominees recommended by for election at each annual meeting of the stockholders of the Company at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. Further, for so long as the Stockholders collectively own in the aggregate not less than 800,000 shares of Common Stock (which threshold number of shares shall automatically be adjusted from time to time to reflect increases, decreases or exchanges in, or the Company's stockholders for election distribution of additional or different securities in respect of, the Common Stock as directorsa result of any recapitalization, and reclassification, stock dividend, stock split, reverse stock split or other similar transaction), the Company shall use its best efforts agrees to cause the election whichever of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur ▇ ▇▇▇▇▇▇▇ is not earlier than 180 days following the Closing Date). (c) In the event any nominee a member of the Purchasers shall cease Company's Board of Directors to serve be invited to attend meetings of the Company's Board of Directors as a director for any reason, an observer (so long as he is either an employee of the Company shall use its best efforts or is subject to cause the vacancy resulting thereby to be filled by a nominee noncompetition covenants of Article VII of the PurchasersPurchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company), unless the Board of Directors of the Company determines as to any particular meeting or meetings that considerations of confidentiality make such attendance inappropriate.

Board Representation. (a) The Subject at all times to Sections 2(b) and 3(n) herein, during the period beginning at the closing of the IPO until the earliest of (a) the twelfth anniversary of the date of the closing of the IPO; (b) such time as the Investors and their respective Affiliates no longer beneficially own, collectively, at least 7,500,000 Series C Shares or the equivalent of any successor securities issued upon conversion of such Series C Shares (including shares of voting common stock issued upon conversion of non-voting common stock issued upon conversion of the Series C Shares) (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such Series C Shares), or (c) following the third year anniversary of the IPO, such time as the Investors collectively hold less than 5% of the as-converted securities of the Company, the Company shall at or prior to support the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directorsnomination of, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be (or the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons nominating committee thereof), subject to the Board requirements of Directorsfiduciary duties under applicable law, to recommend and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included include in the slate of nominees recommended by the Board to the Company's ’s stockholders for election as directorsdirectors of the Company at each annual or special meeting of the Company’s stockholders at which directors are to be elected (an “Election Meeting”), one (1) person designated at any time and from time to time by the mutual consent of the Investors (an “Investor Designee”); provided that, the Company shall use its best efforts have no obligation to support the nomination of or cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting to include in the slate of the Chief Executive Officer of nominees recommended to the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees ’s stockholders for election as directors of the Company an Investor Designee if the Investors already have an Investor Designee serving as a director on the Board of Directors at the first Annual time of the Election Meeting and the term(s) of Stockholders following such Investor Designee(s) as a director on the Closing (which Annual Meeting shall occur Board of Directors does not earlier than 180 days following the Closing Date). (c) expire at such Election Meeting. In the event any nominee that an Investor Designee resigns from his or her seat on the Board of the Purchasers shall cease Directors or is removed or otherwise fails to serve as become or ceases to be a director for any reason, the vacancy will be filled by the election or appointment of another Investor Designee nominated by the Investors as soon as reasonably practicable in compliance with applicable laws, rules and regulations. The Investors will provide the Company, in writing, the information about any Investor Designee that is reasonably required by applicable law promptly after the Company requests such information from the Investors, and will cause any Investor Designee to submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its outside directors generally. (b) Notwithstanding the provisions of Section 2(a), the Investors shall not be entitled to designate any person as a nominee to the Board of Directors if (i) a majority of the disinterested members of the Board of Directors reasonably and in good faith determines, after consultation with the Company’s outside legal counsel, that such person would not be qualified to serve as a director of the Company under any applicable law (including requirements of fiduciary duties under applicable law), rule or regulation, rule of the stock exchange on which the Company’s shares are listed, the Bylaws or any policy, or guidelines previously approved by the Board of Directors or (ii) such person is not approved for nomination by the Board of Directors (or the nominating committee thereof). The Company shall notify the Investors as soon as reasonably practicable of any objection to an Investor Designee pursuant to this Section 2(b) as to enable the Investors to propose a replacement Investor Designee in accordance with the terms of this Agreement. The Investors shall use its reasonable best efforts to cause propose an Investor Designee sufficiently in advance of the vacancy resulting thereby date on which the proxy materials are to be filled mailed by a nominee the Company in connection with an Election Meeting to allow for inclusion of the Purchasersan Investor Designee in such proxy materials.

Board Representation. (a) The Company shall at or prior to the Closing Date cause three vacancies, constituting a majority Effective as of the First -------------------- Closing, the Board shall be comprised of Directors, to be created on its Board eight (8) Directors of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least whom two (2) years after the Closing Date, one member shall be designees of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the CompanyInvestor Stockholder. (b) Commencing with If the annual meeting of stockholders Investor Stockholder exercises the Option, effective as of the Company immediately following the election of such persons to Qualified Option Closing, the Board shall be comprised of Directors, and at each annual meeting nine (9) Directors of stockholders whom three (3) shall be designees of the Company thereafter, so long as the Purchasers hold Investor Stockholder. (Ac) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall take such action as may be required under applicable law to cause such nominees the Board to consist of the Purchasers number of Directors specified in clause (a) or (b), as applicable and to be included include in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and designees of the Investor Stockholder. The Company shall also take such action as may be required under applicable law to cause the Investor Directors to be divided as equally as practicable among each class of Directors. (d) The Company agrees to use its best efforts to cause the election of such nomineeseach designee of the Investor Stockholder to the Board, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting nominating such proxy) or is otherwise entitled individuals to vote, in favor of the election of such persons. The Board of be elected as Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date)provided herein. (ce) In the event that a vacancy is created at any nominee time by the death, disability, retirement, resignation or removal (with or without cause) of any Investor Director, the Purchasers shall cease to serve as a director for any reason, remaining Directors and the Company shall use its best efforts to cause the vacancy resulting created thereby to be filled by a nominee new designee of the PurchasersInvestor Stockholder as soon as possible, who is designated in the manner specified in this Section 2.1, and the Company hereby agrees to take, at any time and from time to time, all actions necessary to accomplish the same. (f) Without the written consent of the Investor Stockholder, the Company agrees not to take any action that would cause the number of Directors constituting the entire Board to be other than eight (8) from and after the First Closing or nine (9) from and after the Qualified Option Closing.

Board Representation. So long as the Purchasers and their Affiliates own (x) at least 50% in aggregate principal amount of the Notes at the time Outstanding, (y) at least 50% of the Warrants at time outstanding or (z) at least 50% of the Warrant Shares at the time outstanding: (a) The Company shall cause, at the request of GS Mezzanine, the election of one person, who shall be a managing director, officer or prior to the Closing Date cause three vacancies, constituting a majority employee of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group, Inc. or any of its affiliates, as a Director (the “Nominee”) to the Board of Directors of the Company. In the event of a vacancy caused by the disqualification, removal, resignation or other cessation of service of the Nominee, the Company shall cause the Board of Directors of the Company to elect as a Director (to serve until the Company’s immediately succeeding annual meeting of shareholders) a Nominee who have has been designated by GS Mezzanine in a Nominee Notice (as defined in Section 7.8(b) that has been provided to the Purchasers to be elected to its Board of Directors. For Company at least two (2) years after days prior to the Closing Date, one member date of a regular meeting of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. GS Mezzanine shall nominate the Nominee pursuant to an additional Nominee Notice in advance of each meeting of shareholders at which the Nominee is to be elected. (b) Commencing with GS Mezzanine shall provide notice to the annual meeting Company (the “Nominee Notice”) as required by Section 7.8(a) for the Nominee, which notice shall contain the name of stockholders the Nominee. (c) The Company agrees to include such Nominee to be added to or retained on the Board of Directors of the Company immediately following the election of such persons pursuant to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included this Agreement in the slate of nominees recommended by the Board of Directors of the Company to the Company's stockholders ’s shareholders for election as directors, Directors and the Company shall use its best reasonable efforts to cause the election or reelection of such nominees, including voting all shares for which Nominee to the Board of Directors of the Company holds at each meeting of shareholders at which such Nominee is up for election including soliciting proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The , it being understood that efforts consistent with those used for other members of the slate recommended by the Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer Company shall be deemed reasonable. In the event that notwithstanding the provisions of this Section 7.8(c), the Nominee is not elected to the Board of Directors of the Company then, at the written request of GS Mezzanine made within 30 days after the date of the shareholder meeting at which such Nominee was not elected, either, as directed by GS Mezzanine (i) the Company shall promptly call a special meeting of the Company’s shareholders proposing the election of such Nominee not elected to the Board of Directors of the Company or an alternative Nominee as may be designated by GS Mezzanine in accordance with Section 7.8(b) and in connection with such special meeting shall use its reasonable efforts to cause the election of such Nominee by the shareholders of the Company, a director designated including recommending the election of such Nominee and soliciting proxies in favor of the election of such Nominee by the Purchaser and ▇▇shareholders of the Company; or (ii) the Company shall appoint another individual selected by GS Mezzanine as a Director of the Company who shall serve for a term co-extensive with the term such Nominee would have served if such Nominee had been elected (provided that GS Mezzanine shall cause such Director to resign at such time as a Nominee is elected to the Board of Directors of the Company seat that would have been held by the Nominee whose failure to be elected triggered GS Mezzanine’s right to designate another Director). ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date). (c) In the event any nominee GS Mezzanine elects to call a special meeting of shareholders pursuant to clause (i), the Company shall, until such time as the Nominee being proposed by GS Mezzanine is elected to the Board of Directors of the Purchasers Company, invite such Nominee who was not elected to the Board of Directors of the Company to attend meetings of the Board of Directors of the Company as an observer and the Company shall cease afford to serve such Nominee, on as a director for any reasonnearly equivalent basis as is possible (other than the right to vote) as would have been the case if such Nominee had been elected to the Board of Directors of the Company, the opportunity to meaningfully participate in, express views with respect to and have influence on the deliberations of the Board of Directors of the Company, including through receipt, at the same time as the Board of Directors of the Company receives the same, of all information and material as is distributed to the Board of Directors of the Company, subject to appropriate confidentiality requirements and attorney-client privilege limitations. At the direction of GS Mezzanine, the Company shall use its best reasonable efforts to cause the vacancy resulting thereby removal from the Board of Directors of the Company of any Nominee. (d) The Board of Directors of the Company shall not establish or employ committees as a means designed to circumvent or having the effect of circumventing the rights of GS Mezzanine under this Agreement to representation on the Board of Directors of the Company. (e) At all times after an Equity Offering and for so long as the Nominee is a Director of the Company, the Company shall cause to be filled by a nominee maintained directors’ and officers’ liability insurance covering all directors and officers of the PurchasersCompany (regardless of whether such insurance shall be obtained prior to an Equity Offering or after an Equity Offering), including coverage in an amount of at least $10,000,000. (f) The Company shall indemnify and hold harmless, to the fullest extent permitted under the Applicable Law, the Nominee to the same extent as all other Directors and on terms no less favorable than under the Certificate by-laws on the date hereof.

Board Representation. (a) The Company Stockholders, collectively, shall at or prior have the right to the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇designate either Leon▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Eric ▇▇▇▇▇▇▇, ▇▇ they may choose, for election to the Company's board of directors by such board at the closing of the transactions contemplated by the Purchase Agreement, to serve until the next annual meeting of the stockholders of the Company. Thereafter, if any one of Leon▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Eric ▇▇▇▇▇▇▇ (▇) holds at least 400,000 shares of Common Stock (which threshold number of shares shall automatically be adjusted from time to time to reflect increases, decreases or exchanges in, or the distribution of additional or different securities in respect of, the Common Stock as a result of any recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction) and (ii) is either an employee of the Company or is subject to the noncompetition covenants of Article VII of the Purchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company ((i) and (ii) above, the "Board Qualifications"), the Company agrees to cause such Stockholder to be included in management's slate of nominees for election at each annual meeting of the stockholders of the Company at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. If, however, both Leon▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ Eric ▇▇▇▇▇▇▇ ▇▇▇▇▇▇t the Board Qualifications, who have been designated by the Purchasers Stockholders shall choose one of them to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the nominated for election of such persons to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of and the Board of Directors. The Company shall agrees to cause such nominees of the Purchasers Stockholder so chosen to be included in the management's slate of nominees recommended by for election at each annual meeting of the stockholders of the Company at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. Further, for so long as the Stockholders collectively own in the aggregate not less than 800,000 shares of Common Stock (which threshold number of shares shall automatically be adjusted from time to time to reflect increases, decreases or exchanges in, or the Company's stockholders for election distribution of additional or different securities in respect of, the Common Stock as directorsa result of any recapitalization, and reclassification, stock dividend, stock split, reverse stock split or other similar transaction), the Company shall use its best efforts agrees to cause the election whichever of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇Leon▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ Eric ▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur ▇▇▇▇ ▇▇ not earlier than 180 days following the Closing Date). (c) In the event any nominee a member of the Purchasers shall cease Company's Board of Directors to serve be invited to attend meetings of the Company's Board of Directors as a director for any reason, an observer (so long as he is either an employee of the Company shall use its best efforts or is subject to cause the vacancy resulting thereby to be filled by a nominee noncompetition covenants of Article VII of the PurchasersPurchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company), unless the Board of Directors of the Company determines as to any particular meeting or meetings that considerations of confidentiality make such attendance inappropriate.

Board Representation. (a) The Company shall at or prior to the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by For so long as the Purchasers to be elected to its Board of Directors. For at least two hold, directly or indirectly, any Shares, the Purchasers (2collectively and not individually) years after the Closing Date, one member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons to the Board of Directorsentitled to, and at each annual meeting of stockholders the Company’s shareholders, nominate a number of directors (such Person(s), the Company thereafter“Purchaser Designee(s)”) to serve on the Board of Directors (such number of directors rounded down or up to the nearest whole number (which may be zero) (e.g., so long as if such number equaled 0.5, the Purchasers hold (Awould be entitled to one Purchaser Designee, and if such number equaled 0.49, the Purchasers would be entitled to zero Purchaser Designees) shares equal to the number of Common Stockcurrent directors multiplied by a fraction, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into the numerator of which will be the number of full shares of Common Stock that in into which the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basisShares held, directly or indirectly, by the Purchasers shall could be entitled to nominate converted at the then applicable Conversion Rate (in addition to any rights granted to the holders of Preferred Stock as set forth defined in the Certificate of Amendment), and the denominator of which will be the sum of (1) the number of shares of Common Stock then outstanding plus (2) the number of full shares of Common Stock into which the then outstanding Shares held, directly or indirectly, by the Purchasers could be converted at the then applicable Conversion Rate; provided, however, that such nomination is subject to such Purchaser Designee’s satisfaction of all applicable requirements regarding service as a director of the Company under applicable Law 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 from time to time. In the event that a Purchaser Designee is nominated, that number the Company shall (x) include such Purchaser Designee in its slate of directors nominees for election to the Company's Board of Directors that would constitute a majority at each annual meeting of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included in the slate of nominees recommended by the Board to Company’s shareholders and (y) recommend that the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, ’s shareholders vote in favor of the election of such personsthe Purchaser Designee(s). The Company shall take all reasonably necessary actions to ensure that, at all times when a Purchaser Designee is eligible to be appointed or nominated, there are sufficient vacancies on the Board of Directors shall appoint a Nominating Committeeto permit such designation. Notwithstanding the foregoing, consisting the rights of the Chief Executive Officer Purchasers under this Section 5.6(a) shall terminate immediately at such time as the Purchasers (collectively and not individually) cease to own, directly or indirectly, any Shares. (b) If any Purchaser Designee ceases to serve on the Board of Directors for any reason during his or her term, the Companyvacancy created thereby shall be filled, and the Company shall cause the Board of Directors to fill such vacancy, with a director designated by new Purchaser Designee eligible to serve on the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting Board of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing DateDirectors in accordance with Section 5.6(a). (c) In For the event any nominee avoidance of doubt, a Purchaser Designee shall be entitled (i) to the same retainer, equity compensation and other fees or compensation, including travel and expense reimbursement, paid to the non-executive directors of the Company for his or her service as a director and (ii) to the same indemnification rights as other non-executive directors of the Company, and the Company shall maintain, in full force and effect, directors’ and officers’ liability insurance in reasonable amounts to the same extent it now indemnifies and provides insurance for the non-executive directors on the Board of Directors. A Purchaser Designee shall be bound by the same confidentiality restrictions as the other non-executive directors. (d) If, pursuant to Section 10(C) of the Certificate of Amendment, the Purchasers are entitled to vote for the election of additional directors on the Board of Directors, the number of Purchaser Designee(s) that the Purchasers shall be permitted to nominate at an annual meeting of the Company’s shareholders pursuant to Section 5.6(a) shall be reduced by two. (e) For the avoidance of doubt, the rights of the Purchasers provided for in this Section 5.6 shall cease not be transferrable to serve as a director for any reason, the Company shall use its best efforts to cause the vacancy resulting thereby to be filled by a nominee of the Purchasersother Person.

Board Representation. (a) The Company shall at or prior to the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ agrees that if ▇▇▇▇▇▇▇ beneficially owns 17.0% or more of the then issued and outstanding shares of New Common Stock at any time prior to June 30, 2010, ▇▇▇▇▇▇▇ shall be entitled during such period to nominate one individual (such individual, and any successor to such individual as contemplated in Section 1(a)(iii), the “▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2▇ Nominee”) years after the Closing Date, one for election as a member of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company.Company (the “Board”); and specifically the Company agrees to: (bi) Commencing with as promptly as practicable and in no event later than ten days following the nomination of the ▇▇▇▇▇▇▇ Nominee as contemplated in this Section 1, (1) increase the size of the Board by one seat and (2) appoint the ▇▇▇▇▇▇▇ Nominee as a director of the Company whose term shall expire on the earlier of (A) such time, if any, as ▇▇▇▇▇▇▇ ceases to beneficially own 17.0% or more of the issued and outstanding shares of New Common Stock for a period of 30 consecutive days and (B) at the annual meeting of stockholders to be held in 2011, subject to re-election or re-appointment of the Company immediately following the election of such persons ▇▇▇▇▇▇▇ Nominee as provided in Sections 1(a)(ii) and 1(a)(iii), respectively; (ii) unless ▇▇▇▇▇▇▇ has at any time prior to the Board Termination Date ceased to beneficially own 17.0% or more of Directorsthe issued and outstanding shares of New Common Stock for a period of 30 consecutive days, and at each annual meeting of stockholders of the Company thereafterto be held prior to the Termination Date, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall 1) will cause such nominees of the Purchasers to be included in the slate of nominees standing for election, and recommended by the Board Board, at each such meeting to include the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ Nominee, (2) will nominate and reflect in the proxy statement on Schedule 14A for each such meeting the nomination of the ▇▇▇▇▇▇▇ Nominee for election as a director of the Company at each such meeting, and (3) cause all proxies received by the Company to be voted in the manner specified by such proxies and, to the extent permitted under applicable law and stock exchange rules, cause all proxies for which a vote is not specified to be voted for the ▇▇▇▇▇▇▇ Nominee; and (iii) if the ▇▇▇▇▇▇▇ Nominee ceases to be a director of the Company other than due to ▇▇▇▇▇▇▇ ceasing to beneficially own 17.0% or more of the issued and outstanding shares of New Common Stock for a period of 30 consecutive days at any time prior to the Termination Date, ▇▇▇▇▇▇▇ may propose to the Company a replacement nominee for election as a director of the Company, in which event such individual shall be appointed to fill the vacancy created as a result of the prior ▇▇▇▇▇▇▇ Nominee ceasing to be a director of the Company. (b) The Company agrees that promptly following the appointment or election of the ▇▇▇▇▇▇▇ Nominee, the Company will, upon written request by ▇▇▇▇▇▇▇, cause the ▇▇▇▇▇▇▇ Nominee to be included as a member of any committee of the Board on which shall recommend two nominees for election the ▇▇▇▇▇▇▇ Nominee is eligible to serve under applicable law or stock exchange or market policy. ▇▇▇▇▇▇▇ and the Company agree that at all times the following actions will require approval of a majority of directors of the Company who are independent of ▇▇▇▇▇▇▇ and management of the Company, which independent directors may comprise a committee of the Board: (i) the amendment or waiver of any provision of this Agreement, (ii) consent to the assignment of ▇▇▇▇▇▇▇’▇ rights under this Agreement or consent to the relief of ▇▇▇▇▇▇▇’▇ obligations under this Agreement, (iii) the amendment or waiver of any provision of the Rights Agreement (defined in Section 4(a)) or the Registration Rights Agreement, dated as directors at of December 31, 2009, between the first Annual Meeting Company, ▇▇▇▇▇▇▇ and the holders of Stockholders following New Common Stock from time to time party thereto, in each case to the Closing extent any such amendment or waiver affects ▇▇▇▇▇▇▇, and (which Annual Meeting shall occur not earlier than 180 days following iv) redemption of the Closing Date)rights issued under the Rights Agreement. (c) In ▇▇▇▇▇▇▇ will provide, as promptly as reasonably practicable, all information relating to the event ▇▇▇▇▇▇▇ Nominee (and other information, if any) to the extent required under applicable law to be included in any nominee proxy statement of the Purchasers shall cease Company and in any other solicitation materials to serve as a director for any reason, be delivered to stockholders of the Company shall use its best efforts to cause the vacancy resulting thereby to be filled in connection with a stockholders meeting as contemplated by a nominee Section 1(a)(ii). (d) As of the Purchasersdate of this Agreement an individual nominated by ▇▇▇▇▇▇▇ has been appointed to the Board and such nominee is the ▇▇▇▇▇▇▇ Nominee.

Board Representation. If S▇▇ ▇. ▇▇▇▇▇, Ph.D. ceases to serve as Chairman of the Board of Directors due to (a) The D▇. ▇▇▇▇▇’▇ resignation as a director due to a material adverse change to the condition of D▇. ▇▇▇▇▇ or any member of D▇. ▇▇▇▇▇’▇ immediate family or (b) a vote or written consent of stockholders of the Company, in which the requisite majority for approval of such removal by the stockholders of the Company does not include any stockholders who serve on the Board of Directors or who are Affiliates of any individuals who serve on the Board of Directors, the Company shall at promptly take any and all actions (including by increasing the size of the Board of Directors) as may be required under the laws of its state of incorporation, its certificate of incorporation and bylaws and any all other applicable laws set forth by any governmental authority in order to (i) cause, within five (5) Trading Days following D▇. ▇▇▇▇▇’▇ departure, (x) the election of two directors designated by Genesis, which designees shall be (A) independent under Section 5605(a)(2) of the rules of the Nasdaq Stock Market (the “Independence Rules”), (B) not existing stockholders of the Company on the date hereof and (C) persons with relevant experience in either the biotechnology, pharmaceutical or prior healthcare industries, to serve as members of the Closing Date cause three vacanciesBoard of Directors from the date hereof until such director designees’ resignation, constituting death, removal or disqualification (the “Genesis Designees”) and (y) the election of a majority chairman of the Board of Directors of the Company who qualifies as an independent director under the Independence Rules and (ii) until the Debentures are either repaid or converted in full, include the Genesis Designees as nominees for election or re-election as members of the Board of Directors, as the case may be, in the proxy statement to be created sent to any holders of the Company’s capital stock in connection with any annual or special meeting of such holders entitled to vote on its Board such matters if the re-election of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member members of the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons to proposed by the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisableDirectors in such proxy statement and, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basissuch instance, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committeerecommend to any such holders of its capital stock entitled to vote at such meeting in such proxy statement the election or re-election, consisting as applicable, of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date)Genesis Designees. (c) In the event any nominee of the Purchasers shall cease to serve as a director for any reason, the Company shall use its best efforts to cause the vacancy resulting thereby to be filled by a nominee of the Purchasers.

Board Representation. (a) In addition to and not in lieu of board representation rights provided for in Section 2(a) of that certain Stock Purchase Agreement dated November 15, 1990 between Akorn and The Company shall at or prior to the Closing Date cause three vacancies, constituting a majority of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated September 20, 1989, for so long as EJ Funds and ▇▇its Affiliates in the aggregate hold shares of Common Stock representing five percent (5%) or more of the issued and outstanding shares of Common Stock of Akorn, EJ Funds shall have the right to designate or nominate (as applicable) two (2) directors (one of whom, ▇▇▇▇▇ ▇▇▇▇▇▇, who have has been designated by the Purchasers so designated) to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the serve on Akorn’s Board of Directors shall (such Persons designated by EJ Funds, together with any successor designee(s) that may be an independent director and one director shall be designated by EJ Funds from time to time, the Chief Executive Officer of the Company“EJ Funds Designees”). (b) Commencing with the annual meeting of stockholders of the Company immediately following the With respect to each shareholder election of such persons to directors of Akorn after the Board of DirectorsRestatement Effective Date, and including at each annual or special meeting of stockholders shareholders of the Company thereafterAkorn at which directors are elected, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers Akorn shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's cause its Board of Directors that would constitute a majority and management to (i) include each of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included EJ Funds Designees in the slate of nominees recommended by the Board of Directors to the Company's stockholders Akorn’s shareholders for election as directors, (ii) recommend to its shareholders that they vote for the EJ Funds Designees as directors of Akorn, (iii) vote all proxies it may hold in favor of the election of the EJ Funds Designees, except as otherwise directed by any shareholder who submits such proxy and the Company shall (iv) use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled EJ Funds Designees to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election be elected as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date)directors. (c) In Akorn shall take no action that would cause its Board of Directors to exceed fifteen in number without the event consent of EJ Funds. (d) Notwithstanding the foregoing, Akorn shall not be required to nominate any nominee EJ Funds Designees that may not, by virtue of the Purchasers shall cease to serve as any state or federal laws or rules of any exchange upon which Akorn’s securities are listed or traded become a director for of Akorn. (e) Notwithstanding any reasonprovision to the contrary contained herein, the Company provisions of this Section 4.17 shall use its best efforts be personal to cause Akorn and shall survive the vacancy resulting thereby to be filled termination of this Agreement or any assignment of this Agreement by a nominee of the PurchasersEJ Funds.

Board Representation. At the Second Effective Time, the Company will cause the Board Representative to be appointed to the Board of Directors of the Company (the “Board”), and thereafter, for so long as the Warburg Investor Beneficially Owns at least an amount of Company Common Stock (the “Qualifying Ownership Interest”) equal to the lesser of (a) The Company shall at or prior to the Closing Date cause three vacancies, constituting a majority 5% of all of the Board outstanding shares of Directors, to be created on its Board Company Common Stock and (b) 50% of Directors, and on the Closing Date shall cause each number of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated Shares received by the Purchasers Warburg Investor in the Mergers, will (i) at each annual or special meeting of the Company’s stockholders at which the class of directors to which the Board Representative has been appointed is to be elected to its Board of Directors. For at least two (2) years after the Closing DateBoard, one member of include the Board of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company. (b) Commencing with the annual meeting of stockholders of the Company immediately following the election of such persons to the Board of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included Representative in the slate of nominees recommended by the Board to the Company's ’s stockholders for election as directors, and the Company shall (ii) use its reasonable best efforts to cause solicit proxies in order to obtain stockholder approval of the election of such nomineesthe Board Representative, including voting all shares for which causing officers of the Company holds who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) or is otherwise entitled to vote, vote such proxies in favor of the election of such persons. The Board of Directors shall appoint a Nominating CommitteeRepresentative, consisting of and (iii) use substantially the Chief Executive Officer of the Company, a director designated by the Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date). (c) In the event any nominee of the Purchasers shall cease to serve as a director for any reason, the Company shall use its best same efforts to cause the vacancy resulting thereby Board Representative to be filled by a nominee elected to the Board as it uses to cause other nominees of the PurchasersBoard to be elected, including recommending that the Company’s stockholders vote in favor of the Board Representative in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each annual or special meeting of the Company’s stockholders at which directors are to be elected to the Board. On the date that the Warburg Investor no longer Beneficially Owns a Qualifying Ownership Interest, the Warburg Investor will have no further rights under this Section 1.1 and Section 1.2 and, in each case at the written request of the Board, shall immediately cause its Board Representative to resign from the Board.