Common use of Voting Matters Clause in Contracts

Voting Matters. During each Voting Period, on each and every Voting Matter that is submitted to the shareholders of the Company for their vote, each JV Shareholder: (i) shall promptly and timely vote or cause to be voted any issued shares of Common Stock held by such JV Shareholder, other than the JV Shareholder Independent Shares held by such JV Shareholder(s), in the same proportion as all other shares of Common Stock (including the Independent Shares) cast on such Voting Matter are voted (without taking into consideration, in determining such proportions, any shares of Common Stock that are not voted or with respect to which a "non-vote" or abstention is exercised or registered), unless the requirements of this Section 4(b)(i) have been waived by the Company pursuant to a resolution adopted by the Board of Directors; (ii) may vote, or cause to be voted, with respect to any matter, in its sole discretion all of the JV Shareholder Independent Shares over which it exercises voting control; and (iii) Any Person who acquires Units originally held by Paros or All Seas pursuant to a Permitted Transfer and subsequently exercises Conversion Rights agrees that, during any Voting Period, such Person shall vote or cause to be voted any shares of Common Stock held by such Person in the same proportion as all other shares of Common Stock (including the Independent Shares) cast on such Voting Matter are voted. If any JV Shareholder or any other Person who acquires Units originally held by Paros or All Seas pursuant to a Permitted Transfer fails to vote, or cause to be voted, any of the Voting Securities over which it exercises voting control, as provided above or to exercise (by written consent or otherwise) any right of consent or approval attendant to or associated with its shares of Common Stock as provided above, then the such Person, by its execution of this Agreement and granted in connection with the transactions contemplated hereby, irrevocably makes, constitutes and appoints ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as its true and lawful agent and attorney in fact, with full power of substitution and full power and authority in its name, place and stead, to vote on such Person's behalf in accordance with this Agreement, as the case may be, in regards to all matters referenced in Section 4(a) and (b), such power of attorney being irrevocable and coupled with an interest.

Voting Matters. During (a) To the extent permitted by law, each Voting Period, on each and every Voting Matter that is submitted to the shareholders Stockholder shall vote all voting securities of the Company over which such Stockholder has voting control, and shall take all other necessary or desirable actions within such Stockholder's control (whether in such Stockholder's capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for their votepurposes of obtaining a quorum and execution of written consents in lieu of meetings), each JV Shareholderand the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special Board and stockholder meetings), so that: (i) shall promptly and timely vote or cause to be voted any issued shares the authorized number of Common Stock held by such JV Shareholder, other than the JV Shareholder Independent Shares held by such JV Shareholder(s), in the same proportion as all other shares of Common Stock (including the Independent Shares) cast directors on such Voting Matter are voted (without taking into consideration, in determining such proportions, any shares of Common Stock that are not voted or with respect to which a "non-vote" or abstention is exercised or registered), unless the requirements of this Section 4(b)(i) have been waived by the Company pursuant to a resolution adopted by the Board shall be established at 7 persons; provided that the Board shall be enlarged upon the affirmative written consent of Directorsthe holders of a majority of the Sentinel Stockholder Shares; (ii) may vote, or cause the following persons shall be elected to be voted, with respect to any matter, in the Board: (A) so long as Sentinel and its sole discretion all Affiliates own at least a majority of the JV Shareholder Independent Sentinel Stockholder Shares over which it exercises voting control; and (iii) Any Person who acquires Units originally held outstanding on the date of this Agreement, 4 persons designated by Paros or All Seas pursuant to holders of a Permitted Transfer and subsequently exercises Conversion Rights agrees that, during any Voting Period, such Person shall vote or cause to be voted any shares of Common Stock held by such Person in the same proportion as all other shares of Common Stock (including the Independent Shares) cast on such Voting Matter are voted. If any JV Shareholder or any other Person who acquires Units originally held by Paros or All Seas pursuant to a Permitted Transfer fails to vote, or cause to be voted, any majority of the Voting Securities over which it exercises voting controlSentinel Stockholder Shares, as provided above or to exercise (by written consent or otherwise) any right of consent or approval attendant to or associated with its shares of Common Stock as provided above, then the such Person, by its execution of this Agreement and granted in connection with the transactions contemplated hereby, irrevocably makes, constitutes and appoints who shall initially include ▇▇▇▇▇ ▇. Lobel, Fitzpatrick, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇; provided that if the Board is enlarged as its true described in clause (i) above, the holders of a majority of the Sentinel Stockholder Shares shall be permitted to designate the smallest number of directors greater than 4 which would be a majority of the Board (i.e., 5 of 8, 5 of 9, 6 of 10) (all such persons designated pursuant to this clause (A), the "Sentinel Directors"); (B) so long as GE, Midwest, ▇▇▇▇▇ and lawful agent their Affiliates own at least a majority of the Non-Sentinel Stockholder Shares outstanding on the date of this Agreement, 2 persons designated by holders of a majority of the Non-Sentinel Stockholder Shares; provided that if the Board is enlarged as described in clause (i) above, the holders of a majority of the Non-Sentinel Stockholder Shares shall be permitted to designate such number of directors as are on the enlarged Board and attorney in factnot designated pursuant to clause (A) above and clause (C) below (all such persons designated pursuant to this clause (B), with full power the "Non-Sentinel Directors"); (C) the Chief Executive Officer of substitution the Company; (iii) the Company shall cause the board of directors of each Subsidiary of the Company (each a "Sub Board") to be comprised of the same members as are on the Board; (iv) except as otherwise required by law, two Sentinel Directors and full one Non-Sentinel Director, who shall be appointed by the holders of a majority of the Sentinel Stockholder Shares and the holders of a majority of the Non-Sentinel Stockholder Shares respectively (and who may appoint different directors for each such committee), shall be appointed to the executive committee, nominating committee, compensation committee and audit committee of the Board (each of which shall have no more than three (3) members) and such other committees of the Board and of the board of directors of each Subsidiary of the Company as requested by the holders of a majority of the Sentinel Stockholder Shares; notwithstanding the foregoing, the Non-Sentinel Directors and the CEO shall be appointed to a committee of the Board which committee shall be delegated the sole and exclusive power and authority in its nameto determine (x) when and if the debt, place or any portion thereof, represented by the Notes is prepaid pursuant to Section 3 of the Notes, and stead(y) any debt financing arrangements of the Company necessary to acquire the funds to affect such prepayment, subject to vote any restrictions on such Personfinancing set forth in Section 3 of the Notes and provided that the aggregate proceeds of such debt financing arrangement do not materially exceed the amount necessary for such prepayment; (v) Sentinel Directors shall be removed from the Board or any committee thereof (without cause) at the written request of the holders of a majority of the Sentinel Stockholder Shares, but only upon such written request and under no other circumstances, except as required by law, and Non-Sentinel Directors shall be removed from the Board or any committee thereof (without cause) at the written request of the holders of a majority of the Non-Sentinel Stockholder Shares, but only upon such written request and under no other circumstances, except as required by law; (vi) in the event that any Sentinel Director for any reason ceases to serve as a member of the Board or any committee thereof during such representative's behalf term of office, the resulting vacancy on the Board or committee shall be filled by a representative designated by the holders of a majority of the Sentinel Stockholder Shares and in accordance with the event that any Non-Sentinel Director for any reason ceases to serve as a member of the Board or any committee thereof during such representative's term of office, the resulting vacancy on the Board or committee shall be filled by a representative designated by the holders of a majority of the Non-Sentinel Stockholder Shares. (b) In addition, so long as Sentinel and its Affiliates own at least a majority of the Sentinel Stockholder Shares outstanding on the date of this Agreement, the Company shall not, without the affirmative vote of the holders of a majority of the outstanding Sentinel Stockholder Shares: (i) alter or change the preferences, rights or powers of the Series B Stock, (ii) create, authorize or issue any capital stock that ranks prior (whether with respect to dividends, redemption or upon liquidation, dissolution, winding up or otherwise) to or pari passu with the Series B Stock, (iii) increase the authorized number of shares of Series B Stock, (iv) create, authorize or issue any capital stock of the Company or any Subsidiary of the Company or any security convertible into, exchangeable for, or that otherwise gives the holder the right to obtain, capital stock of the Company or any Subsidiary of the Company (other than (x) the shares of Common Stock or Series A-2 Stock issuable upon conversion, exercise or exchange of the Stockholder Shares outstanding as of the date hereof, or (y) options to acquire shares of Common Stock issued to employees, officers, directors, consultants and agents of the Company, or shares of Common Stock issuable pursuant to the exercise of such options, pursuant to the Stock Option Plan, (v) declare or pay a dividend with respect to any Stockholder Shares, (vi) amend the Company's Certificate of Incorporation or Bylaws except as specifically contemplated in the Purchase Agreement, (vii) materially amend the terms of the Company's senior credit facility entered into on the date hereof, except as required to prepay the debt represented by the Notes pursuant to Section 3 of the Notes, (viii) effect a Change of Control, (ix) create or incur, or permit any Subsidiary of the Company to create or incur, Indebtedness other than Indebtedness existing on the date hereof, Indebtedness approved in an annual budget approved by the Board and other Indebtedness not to exceed $1,000,000 in the aggregate, except as required to prepay the debt represented by the Notes pursuant to Section 3 of the Notes, (x) effect a voluntary liquidation, dissolution or winding up of the Company, (xi) acquire, or permit any Subsidiary of the Company to acquire, any interest in any company or business (whether by a purchase of assets, purchase of stock, merger or otherwise), or enter into any joint venture involving the operation of a business, or make any investment in any company or business, (xii) enter into, amend, modify or supplement, or permit any Subsidiary of the Company to enter into, amend, modify or supplement, any agreement, transaction, commitment or arrangement with any of its or any Subsidiary's officers, directors, or stockholders holding at least 2% of the Common Stock, with any Affiliate or with any Immediate Family of any such individual or with any entity in which any such Person or individual owns a beneficial interest, except for employment arrangements and benefit programs approved by the Board or the applicable board of directors of the Company's Subsidiaries or authorized committees thereof, (xiii) become subject to, or permit any of its Subsidiaries to become subject to, (including by way of amendment to or modification of) any agreement or instrument which by its terms would (under any circumstances) restrict the Company's right to comply (but not the Company's ability to comply) with these terms of the Series B Stock, or (xiv) terminate the employment of any senior executive. (c) The Company shall pay the reasonable out-of-pocket expenses incurred by each director in connection with attending the meetings of the Board or any Sub Board and any committee thereof. (d) In the event that any provision of the Bylaws or Certificate of Incorporation is inconsistent with any provision of this Section 2, the Stockholders shall take such action as may be necessary to amend any such provision in the Bylaws or the Certificate of Incorporation to remedy such inconsistency. (e) The Company hereby agrees that as long as GE owns a majority of the Stockholder Shares held by it on the date of this Agreement and as long as Midwest owns a majority of the Stockholder Shares held by it on the date of this Agreement: (i) each of GE and Midwest, as the case may be, will be given reasonable and adequate notice of each meeting of the Board, which shall be no less notice than that given to a majority of the members of the Board: (ii) each of GE and Midwest, as the case may be, shall each have the right to have one observer attend each such meeting; (iii) each of GE and Midwest, as the case may be, shall be entitled to observe such meeting by phone or other method whereby they can hear all of the participants in regards the meeting; (iv) each of GE and Midwest, as the case may be, shall be entitled to receive all matters referenced materials provided to the members of the Board of Directors in Section 4(a) connection with such meeting; and (b)v) if the Board intends to take any action pursuant to a written consent, each of GE and Midwest, as the case may be, will be forwarded copies of such power written consents no later than the date copies are distributed to the members of attorney being irrevocable and coupled with an interestthe Board. (f) Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall (i) affect, limit or impair the rights and/or remedies of GE in its capacity as a lender to the Company or any of its Subsidiaries pursuant to any agreement under which the Company or any of its Subsidiaries has or have borrowed money or (ii) be deemed otherwise to require or cause GE to take or omit to take any action in its capacity as a lender or any other holder of debt of the Company or any of its Subsidiaries.

Voting Matters. During (a) To the extent permitted by law, each Voting Period, on each and every Voting Matter that is submitted to the shareholders Stockholder shall vote all voting securities of the Company over which such Stockholder has voting control, and shall take all other necessary or desirable actions within such Stockholder's control (whether in such Stockholder's capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for their votepurposes of obtaining a quorum and execution of written consents in lieu of meetings), each JV Shareholderand the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special Board and stockholder meetings), so that: (i) shall promptly and timely vote or cause to be voted any issued shares the authorized number of Common Stock held by such JV Shareholder, other than the JV Shareholder Independent Shares held by such JV Shareholder(s), in the same proportion as all other shares of Common Stock (including the Independent Shares) cast directors on such Voting Matter are voted (without taking into consideration, in determining such proportions, any shares of Common Stock that are not voted or with respect to which a "non-vote" or abstention is exercised or registered), unless the requirements of this Section 4(b)(i) have been waived by the Company pursuant to a resolution adopted by the Board shall be established at 7 persons; provided that the Board shall be enlarged upon the affirmative written consent of Directorsthe holders of a majority of the Sentinel Stockholder Shares; (ii) may vote, or cause the following persons shall be elected to be voted, with respect to any matter, in the Board: (A) so long as Sentinel and its sole discretion all Affiliates own at least a majority of the JV Shareholder Independent Sentinel Stockholder Shares over which it exercises voting control; and (iii) Any Person who acquires Units originally held outstanding on the date of this Agreement, 4 persons designated by Paros or All Seas pursuant to holders of a Permitted Transfer and subsequently exercises Conversion Rights agrees that, during any Voting Period, such Person shall vote or cause to be voted any shares of Common Stock held by such Person in the same proportion as all other shares of Common Stock (including the Independent Shares) cast on such Voting Matter are voted. If any JV Shareholder or any other Person who acquires Units originally held by Paros or All Seas pursuant to a Permitted Transfer fails to vote, or cause to be voted, any majority of the Voting Securities over which it exercises voting controlSentinel Stockholder Shares, as provided above or to exercise (by written consent or otherwise) any right of consent or approval attendant to or associated with its shares of Common Stock as provided abovewho shall initially include David S. Lobel, then the such PersonFitzpatrick, by its execution of this Agreement Paul F. Murphy and granted in connection with the transactions contemplated hereby, irrevocably makes, constitutes and appoints Edward Kuntz; prov▇▇▇▇ ▇▇▇t if the Board is enl▇▇▇▇▇ ▇▇ ▇▇▇▇▇ibed ▇▇ ▇▇▇▇▇▇ (▇. ▇▇) above, the holders of a majority of the Sentinel Stockholder Shares shall be permitted to designate the smallest number of directors greater than 4 which would be a majority of the Board (i.e., 5 of 8, 5 of 9, 6 of 10) (all such persons designated pursuant to this clause (A), the "Sentinel Directors"); (B) so long as GE, Midwest, Usdan and their Affiliates own at least a majority of the Non-Sent▇▇▇▇ Stockholder Shares outstanding on the date of this Agreement, 2 persons designated by holders of a majority of the Non-Sentinel Stockholder Shares; provided that if the Board is enlarged as its true described in clause (i) above, the holders of a majority of the Non-Sentinel Stockholder Shares shall be permitted to designate such number of directors as are on the enlarged Board and lawful agent not designated pursuant to clause (A) above and attorney in factclause (C) below (all such persons designated pursuant to this clause (B), with full power the "Non-Sentinel Directors"); (C) the Chief Executive Officer of substitution the Company; (iii) the Company shall cause the board of directors of each Subsidiary of the Company (each a "Sub Board") to be comprised of the same members as are on the Board; (iv) except as otherwise required by law, two Sentinel Directors and full one Non-Sentinel Director, who shall be appointed by the holders of a majority of the Sentinel Stockholder Shares and the holders of a majority of the Non-Sentinel Stockholder Shares respectively (and who may appoint different directors for each such committee), shall be appointed to the executive committee, nominating committee, compensation committee and audit committee of the Board (each of which shall have no more than three (3) members) and such other committees of the Board and of the board of directors of each Subsidiary of the Company as requested by the holders of a majority of the Sentinel Stockholder Shares; notwithstanding the foregoing, the Non-Sentinel Directors and the CEO shall be appointed to a committee of the Board which committee shall be delegated the sole and exclusive power and authority in its nameto determine (x) when and if the debt, place or any portion thereof, represented by the Notes is prepaid pursuant to Section 3 of the Notes, and stead(y) any debt financing arrangements of the Company necessary to acquire the funds to affect such prepayment, subject to vote any restrictions on such Personfinancing set forth in Section 3 of the Notes and provided that the aggregate proceeds of such debt financing arrangement do not materially exceed the amount necessary for such prepayment; (v) Sentinel Directors shall be removed from the Board or any committee thereof (without cause) at the written request of the holders of a majority of the Sentinel Stockholder Shares, but only upon such written request and under no other circumstances, except as required by law, and Non-Sentinel Directors shall be removed from the Board or any committee thereof (without cause) at the written request of the holders of a majority of the Non-Sentinel Stockholder Shares, but only upon such written request and under no other circumstances, except as required by law; (vi) in the event that any Sentinel Director for any reason ceases to serve as a member of the Board or any committee thereof during such representative's behalf term of office, the resulting vacancy on the Board or committee shall be filled by a representative designated by the holders of a majority of the Sentinel Stockholder Shares and in accordance with the event that any Non-Sentinel Director for any reason ceases to serve as a member of the Board or any committee thereof during such representative's term of office, the resulting vacancy on the Board or committee shall be filled by a representative designated by the holders of a majority of the Non-Sentinel Stockholder Shares. (b) In addition, so long as Sentinel and its Affiliates own at least a majority of the Sentinel Stockholder Shares outstanding on the date of this Agreement, the Company shall not, without the affirmative vote of the holders of a majority of the outstanding Sentinel Stockholder Shares: (i) alter or change the preferences, rights or powers of the Series B Stock, (ii) create, authorize or issue any capital stock that ranks prior (whether with respect to dividends, redemption or upon liquidation, dissolution, winding up or otherwise) to or pari passu with the Series B Stock, (iii) increase the authorized number of shares of Series B Stock, (iv) create, authorize or issue any capital stock of the Company or any Subsidiary of the Company or any security convertible into, exchangeable for, or that otherwise gives the holder the right to obtain, capital stock of the Company or any Subsidiary of the Company (other than (x) the shares of Common Stock or Series A-2 Stock issuable upon conversion, exercise or exchange of the Stockholder Shares outstanding as of the date hereof, or (y) options to acquire shares of Common Stock issued to employees, officers, directors, consultants and agents of the Company, or shares of Common Stock issuable pursuant to the exercise of such options, pursuant to the Stock Option Plan, (v) declare or pay a dividend with respect to any Stockholder Shares, (vi) amend the Company's Certificate of Incorporation or Bylaws except as specifically contemplated in the Purchase Agreement, (vii) materially amend the terms of the Company's senior credit facility entered into on the date hereof, except as required to prepay the debt represented by the Notes pursuant to Section 3 of the Notes, (viii) effect a Change of Control, (ix) create or incur, or permit any Subsidiary of the Company to create or incur, Indebtedness other than Indebtedness existing on the date hereof, Indebtedness approved in an annual budget approved by the Board and other Indebtedness not to exceed $1,000,000 in the aggregate, except as required to prepay the debt represented by the Notes pursuant to Section 3 of the Notes, (x) effect a voluntary liquidation, dissolution or winding up of the Company, (xi) acquire, or permit any Subsidiary of the Company to acquire, any interest in any company or business (whether by a purchase of assets, purchase of stock, merger or otherwise), or enter into any joint venture involving the operation of a business, or make any investment in any company or business, (xii) enter into, amend, modify or supplement, or permit any Subsidiary of the Company to enter into, amend, modify or supplement, any agreement, transaction, commitment or arrangement with any of its or any Subsidiary's officers, directors, or stockholders holding at least 2% of the Common Stock, with any Affiliate or with any Immediate Family of any such individual or with any entity in which any such Person or individual owns a beneficial interest, except for employment arrangements and benefit programs approved by the Board or the applicable board of directors of the Company's Subsidiaries or authorized committees thereof, (xiii) become subject to, or permit any of its Subsidiaries to become subject to, (including by way of amendment to or modification of) any agreement or instrument which by its terms would (under any circumstances) restrict the Company's right to comply (but not the Company's ability to comply) with these terms of the Series B Stock, or (xiv) terminate the employment of any senior executive. (c) The Company shall pay the reasonable out-of-pocket expenses incurred by each director in connection with attending the meetings of the Board or any Sub Board and any committee thereof. (d) In the event that any provision of the Bylaws or Certificate of Incorporation is inconsistent with any provision of this Section 2, the Stockholders shall take such action as may be necessary to amend any such provision in the Bylaws or the Certificate of Incorporation to remedy such inconsistency. (e) The Company hereby agrees that as long as GE owns a majority of the Stockholder Shares held by it on the date of this Agreement and as long as Midwest owns a majority of the Stockholder Shares held by it on the date of this Agreement: (i) each of GE and Midwest, as the case may be, will be given reasonable and adequate notice of each meeting of the Board, which shall be no less notice than that given to a majority of the members of the Board: (ii) each of GE and Midwest, as the case may be, shall each have the right to have one observer attend each such meeting; (iii) each of GE and Midwest, as the case may be, shall be entitled to observe such meeting by phone or other method whereby they can hear all of the participants in regards the meeting; (iv) each of GE and Midwest, as the case may be, shall be entitled to receive all matters referenced materials provided to the members of the Board of Directors in Section 4(a) connection with such meeting; and (b)v) if the Board intends to take any action pursuant to a written consent, each of GE and Midwest, as the case may be, will be forwarded copies of such power written consents no later than the date copies are distributed to the members of attorney being irrevocable and coupled with an interestthe Board. (f) Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall (i) affect, limit or impair the rights and/or remedies of GE in its capacity as a lender to the Company or any of its Subsidiaries pursuant to any agreement under which the Company or any of its Subsidiaries has or have borrowed money or (ii) be deemed otherwise to require or cause GE to take or omit to take any action in its capacity as a lender or any other holder of debt of the Company or any of its Subsidiaries.