Common use of New Section 1 Clause in Contracts

New Section 1. 13(a). Section 1.13(a) of the Merger Agreement titled “Post-Merger Operations” shall be amended and restated in its entirety and shall read as follows: (a) Unless otherwise agreed to in writing by the Parties, Akebia shall take all necessary corporate action to cause, as of the Effective Time, an increase in the size of the Akebia Board to ten (10) directors, comprising (i) four (4) directors designated by the Akebia Board, each of whom shall be a director of Akebia prior to the Effective Time and be reasonably acceptable to Keryx (the “Continuing Directors”), (ii) five (5) directors designated by the Keryx Board, each of whom shall be a director of Keryx prior to the Effective Time and be reasonably acceptable to Akebia (the “Keryx Board Designees”), and (iii) one (1) additional independent director to be designated by the Akebia Board and the Keryx Board (the “Additional Director”), who is neither a member of the Akebia Board nor a member of the Keryx Board prior to the Effective Time. The Additional Director shall serve as chairperson of the Akebia Board as of the Effective Time. Each Continuing Director, Keryx Board Designee and Additional Director shall serve until such individual’s successor is duly elected or appointed and qualified in accordance with applicable Law. Akebia and Keryx shall designate the Continuing Directors, the Keryx Board Designees and the Additional Director, as applicable, as soon as practicable, but no later than immediately prior to the Effective Time. As of the Effective Time, the Continuing Directors, the Keryx Board Designees and the Additional Director shall be allocated among the three classes of directors as follows: • Class II (up for re-election in 2019): 1 Continuing Director, 2 Keryx Board Designees; • Class III (up for re-election in 2020): Additional Director, 1 Continuing Director, 1 Keryx Board Designee; and • Class I (up for re-election in 2021): 2 Continuing Directors, 2 Keryx Board Designees. If, prior to the Effective Time, any designated Continuing Director, Keryx Board Designee or Additional Director becomes unable or unwilling to serve on the Akebia Board as of the Effective Time, a replacement for such designee shall be determined prior to the Effective Time in accordance with the principles set forth in this Section 1.13(a).