shall initially be elected or appointed for a seat, any re-elections, substitutions or replacements for that seat shall be designees proposed by management of the Company and approved by a majority of the remaining Board members (including the remaining sitting Independent Directors).
To the extent that any of clauses (a) through (d) above shall not be applicable, any member of the Board who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company entitled to vote thereon in accordance with, and pursuant to, the Companys Restated Certificate.
For purposes of this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (collectively, a Person) shall be deemed an Affiliate of another Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, limited partner, member, manager, managing member, employee, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or is under common investment management with or shares the same management company with, such Person. For purposes of this definition, the term control when used with respect to any Person shall mean the power to direct the management or policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise, and the terms controlling and controlled shall have meanings correlative to the foregoing.
1.3. Failure to Designate a Board Member. In the absence of any designation from the Persons or groups with the right to designate a director as specified above, the director previously designated by them and then serving shall be reelected if willing and eligible to serve; otherwise such Board seat shall remain vacant until otherwise filled as provided above.
1.4. Removal of Board Members. Each Stockholder also agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that:
(a) no director elected pursuant to Section 1.2(a), (b) or (d) or Section 1.3 of this Agreement may be removed from office unless (i) such removal is directed or approved by (A) in the case of Section 1.2(a) or (b), the affirmative vote of the Person(s) entitled under Section 1.2(a) or (b), as the case may be, to designate such director or (B) in the case of Section 1.2(d), a majority of the other Board members; and (ii) the Person(s) originally entitled to designate or approve such director or occupy such Board seat pursuant to Section 1.2 (a), (b) or (d) is no longer so entitled to designate or approve such director or occupy such Board seat;
(b) any vacancies created by the resignation, removal or death of a director elected pursuant to Sections 1.3 or 1.4 shall be filled pursuant to the provisions of this Section 1; and
(c) upon the request of any party or parties entitled to designate a director as provided in Section 1.2(a) and Section 1.2(b) and to remove an Independent Director pursuant Section 1.4(a)(i)(B), in each case to remove such director, such director shall be removed.
All Stockholders agree to execute any written consents required to perform the obligations of this Agreement, and the Company agrees at the request of any party entitled to designate directors to call a special meeting of stockholders for the purpose of electing directors.
1.5. No Liability for Election of Recommended Directors. No Stockholder, nor any Affiliate of any Stockholder, shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any Stockholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.
1.6. No Bad Actor Designees. Each Person with the right to designate or participate in the designation of a director as specified above hereby represents and warrants to the Company that, to such Persons knowledge, none of the bad actor disqualifying events described in Rule 506(d)(1)(i)-(viii) promulgated under the