BEP Board Designation Rights. At any time when BEP beneficially owns (as defined under Section 13 of the Exchange Act) (i) at least twenty-five percent (25%) of the outstanding principal amount of Notes as of the Closing Date (which calculation shall include any Notes that have been converted so long as BEP beneficially owns the applicable Conversion Shares and otherwise without regard to any of the limitations on convertibility in the Notes) or (ii) at least ten percent (10%) of the outstanding shares of Common Stock (including any shares of Common Stock previously issued or issuable to BEP in connection with a conversion of its Notes pursuant to the NPA and otherwise without regard to any of the limitations on convertibility in the Notes), BEP shall be entitled to designate (and the Company shall be required to appoint and/or nominate for election at any annual or special meeting of shareholders (or action by written consent) for the election of directors to the Board of Directors) one (1) individual to the Board of Directors (such individual, the “BEP Director”), who shall initially be Xxxxxx van’t Xxxx (the “Initial BEP Director”). A BEP Director may be removed at any time (with or without cause) upon the written request of BEP. In the event that a vacancy is created on the Board of Directors at any time due to the death, disability, retirement, resignation, or removal of a BEP Director, then BEP shall have the right to designate an individual to fill such vacancy and the Company shall promptly appoint such person to fill such vacancy, and in any event, within no later than three (3) days of BEP’s designation, and such person shall thereafter be deemed the BEP Director under this Agreement. The Company shall appoint the Initial BEP Director to the Board of Directors effective on the Closing Date and, if necessary, increase the size of the Board of Directors and/or cause a vacancy to be created on the Board of Directors such that the BEP Director may be so appointed. During the period a BEP Director is a director of the Board of Directors, the Company shall, at its own expense, provide to such BEP Director the same compensation and benefits as any other non-employee director of the Board of the Directors, including cash and non-cash compensation for director service and benefits under any applicable director and officer indemnification or insurance policy maintained by the Company.
