Common use of Preferred Stock Clause in Contracts

Preferred Stock. If the Company shall fail to redeem all of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.

Preferred Stock. If the Company shall fail to redeem all Our Restated Certificate provides that shares of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may be issued from time to time in one or more series. Our board of directors is authorized to fix the voting rights, if any, designations, powers, preferences, the relative, participating, optional or other special rights and any qualifications, limitations and restrictions thereof, applicable to the shares of each series. Our board of directors will be able to, without stockholder approval, issue Preferred Stock with voting and other rights that could adversely affect the voting power and other rights of the holders of the Common Stock and could have anti-takeover effects. The ability of our board of directors to issue Preferred Stock without stockholder approval could have the effect of delaying, deferring or preventing a change of control or the removal of our management. Public Warrants Each whole Public Warrant entitles the registered holder to purchase one share of our Common Stock at a price of $11.50 per share, subject to adjustment as discussed below, at any time commencing on January 20, 2021. The Public Warrants will expire on December 21, 2025, at 5:00 p.m., New York City time, or earlier upon redemption or liquidation. We will not be obligated to deliver any shares of Common Stock pursuant to the exercise of a Public Warrant and will have no obligation to settle such warrant exercise unless a registration statement under this Certificate the Securities Act with respect to the shares of Designation Common Stock underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to our satisfying our obligations described below with respect to registration. No Public Warrant will be exercisable and we will not be obligated to issue shares of Common Stock upon exercise of a Public Warrant unless Common Stock issuable upon such Public Warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the registered holder of the Public Warrants. In the event that the conditions in the two immediately preceding sentences are not satisfied with respect to a Public Warrant, the holder of such Public Warrant will not be entitled to exercise such Public Warrant and such holder’s applicable Purchase AgreementPublic Warrant may have no value and expire worthless. In no event will we be required to net cash settle any Public Warrant. In the event that a registration statement is not effective for the exercised Public Warrants, the Applicable Redemption Price payable in respect purchaser of a unit containing such unredeemed Series C Preferred Public Warrant will have paid the full purchase price for the unit solely for the share of Common Stock shall bear interest at underlying such unit. We have filed with the rate of 1.0% per month (prorated Securities and Exchange Commission a registration statement for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have registration under the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all Securities Act of the shares of Series C Preferred Common Stock that were submitted for redemption by such holder(s) under this Section 8 issuable upon exercise of the Public Warrants and for which the Applicable Redemption Price has not been paid, by sending written notice thereof will use our best efforts to maintain a current prospectus relating to the Company Common Stock issuable upon exercise of the Public Warrants, until the expiration of the Public Warrants in accordance with the provisions of the warrant agreement (the “Void Optional Redemption NoticeWarrant Agreement”), which is filed as an exhibit to our Annual Report on Form 10-K and is incorporated by reference herein. Upon During any period when we will have failed to maintain an effective registration statement, warrantholders may exercise Public Warrants on a cashless basis pursuant to the Company’s receipt exemption provided by Section 3(a)(9) of the Securities Act, provided that such Void Optional Redemption Notice(sexemption is available. If that exemption, or another exemption, is not available, holders will not be able to exercise their Public Warrants on a cashless basis. We may call the Public Warrants for redemption: • in whole and not in part; • at a price of $0.01 per Public Warrant; • upon not less than 30 days’ prior written notice of redemption to each warrantholder; and • if, and only if, the reported last reported sale price of the Common Stock equals or exceeds $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within a 30-trading day period ending three business days before we send the notice of redemption to the warrantholders. If and when the Public Warrants become redeemable by us, we may not exercise our redemption right if the issuance of shares of Common Stock upon exercise of the Public Warrants is not exempt from registration or qualification under applicable state blue sky laws or we are unable to effect such registration or qualification. We will use our best efforts to register or qualify such shares of Common Stock under the blue sky laws of the state of residence in those states in which the Public Warrants were offered by us in this offering. We have established the last of the redemption criteria discussed above to prevent a redemption call unless there is at the time of the call a significant premium to the warrant exercise price. If the foregoing conditions are satisfied and we issue a notice of redemption of the Public Warrants, each warrantholder will be entitled to exercise its Public Warrants prior to payment the scheduled redemption date. However, the price of the full Applicable Redemption Price Common Stock may fall below the $18.00 redemption trigger price (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) as well as the $11.50 warrant exercise price after the redemption notice is issued. If we call the Public Warrants for redemption as described above, our management will have the option to such holderrequire any holder that wishes to exercise its warrant to do so on a “cashless basis.” In determining whether to require all holders to exercise their Public Warrants on a “cashless basis,” our management will consider, among other factors, our cash position, the number of Public Warrants that are outstanding and the dilutive effect on our stockholders of issuing the maximum number of shares of Common Stock issuable upon the exercise of our Public Warrants. If our management takes advantage of this option, all holders of Public Warrants would pay the exercise price by surrendering their Public Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (ix) the notice(s) product of redemption shall be null and void with respect to those the number of shares of Series C Preferred Common Stock submitted for redemption underlying the Public Warrants, multiplied by the difference between the exercise price of the Public Warrants and for which the Applicable Redemption Price has not been paid, “fair market value” (iidefined below) by (y) the Company fair market value. The “fair market value” shall immediately return any Series C Preferred mean the average last reported sale price of the Common Stock submitted for the 10 trading days ending on the third trading day prior to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered sent to the holders of the Public Warrants. If our management takes advantage of this option, the notice of redemption will contain the information necessary to calculate the number of shares of Common Stock to be received upon exercise of the Public Warrants, including the “fair market value” in such case. Requiring a cashless exercise in this manner will reduce the number of shares of Common Stock to be issued and ending thereby lessen the dilutive effect of a warrant redemption. We believe this feature is an attractive option to us if we do not need the cash from the exercise of the Public Warrants after the Business Combination. A holder of a Public Warrant may notify us in writing in the event it elects to be subject to a requirement that such holder will not have the right to exercise such Public Warrants, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the warrant agent’s actual knowledge, would beneficially own in excess of 4.9% or 9.8% (or such other amount as a holder may specify) of the shares of Common Stock outstanding immediately after giving effect to such exercise. If the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock, or by a split-up of shares of Common Stock or other similar event, then, on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the effective date of such noticestock dividend, split-up or similar event, the number of shares of Common Stock issuable on exercise of each Public Warrant will be increased in proportion to such increase in the outstanding shares of Common Stock. For A rights offering to holders of Common Stock entitling holders to purchase shares of Common Stock at a price less than the avoidance fair market value will be deemed a stock dividend of doubt, payments provided a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.Common Stock) and

Preferred Stock. If The Company shall also cause notice of redemption to be published in a newspaper of general circulation in The City of New York at least once a week for two successive weeks commencing not less than 30 nor more than 60 days prior to the cash redemption date. In the event that notice of redemption has been made as described in the immediately preceding paragraph and the Company shall fail then have paid in full to the Depositary the cash redemption price (determined pursuant to the Articles Supplementary) of the Class E Preferred Stock deposited with the Depositary to be redeemed (including any accrued and unpaid dividends to the cash redemption date), the Depositary shall redeem the number of Depositary Shares representing such Class E Preferred Stock so called for redemption by the Company and from and after the cash redemption date (unless the Company shall have failed to redeem the shares of Class E Preferred Stock to be redeemed by it as set forth in the Company's notice provided for in the preceding paragraph), all dividends in respect of the Series C shares of Class E Preferred Stock submitted called for redemption shall cease to accrue, the Depositary Shares called for redemption shall be deemed no longer to be outstanding and all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the cash redemption price and any money or other than pursuant property to a dispute as which holders of such Receipts were entitled upon such redemption) shall, to the arithmetic calculation extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Applicable Redemption PriceReceipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), in addition to such Depositary Shares shall be redeemed at a cash redemption price of $100.00 per Depositary Share plus any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation other money and such holder’s applicable Purchase Agreement, the Applicable Redemption Price other property payable in respect of such unredeemed Series C Class E Preferred Stock Stock. The foregoing shall bear interest at be further subject to the rate terms and conditions of 1.0% per month (prorated for partial months) until paid in fullthe Articles Supplementary. Until If fewer than all of the Company pays such unpaid Applicable Redemption Price in full to Depositary Shares evidenced by a holder of shares of Series C Preferred Stock submitted Receipt are called for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof Depositary will deliver to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt holder of such Void Optional Redemption Notice(s) and prior Receipt upon its surrender to the Depositary, together with payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of cash redemption shall be null price for and void with all other amounts payable in respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of Depositary Shares called for redemption, a Void Optional Redemption Notice new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided called for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionredemption.

Preferred Stock. If At least forty five (45) days prior to any Transfer of Preferred Stock by any Stockholder (each a "Preferred Transferor") to any Person other than the Company shall fail to redeem all of the Series C Preferred Stock submitted for redemption or a Wholly Owned Subsidiary (other than pursuant to a dispute as redemptions of Preferred Stock pursuant to the arithmetic calculation Certificate of Incorporation of the Applicable Redemption PriceCompany, a Permitted Transfer, a Special Foundation Transfer, a Special Foundation Transfer Without Consideration, a Public Sale or the Call), in addition to any remedy such holder of Series C the Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock Transferor shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to deliver a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option written notice (the “Void Optional Redemption Option”"Preferred Sale Notice") to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (and the “Void Optional Redemption Notice”Company shall promptly deliver the Preferred Sale Notice to the other holders of Preferred Stock), specifying in reasonable detail the number of shares of Preferred Stock to be Transferred, the proposed terms, and conditions of the proposed Transfer and the identity of the prospective transferee(s). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment the Preferred Sale Notice, each of the full Applicable Redemption Price other holders of Preferred Stock (the "Tag-along Preferred Stockholders") shall have a right (a "Preferred Tag-along Right") to participate in the contemplated Transfer by delivering written notice (the "Preferred Tag-along Notice") to the Preferred Transferor and the Company within 30 days after receipt by the Tag-along Preferred Stockholders of the Preferred Sale Notice. If any Tag-along Preferred Stockholder has elected to participate in such holderTransfer, the Preferred Transferor and each such electing Tag-along Preferred Stockholder shall be entitled to sell in the contemplated Transfer, at the same price per share and on the same terms, a number of shares of Preferred Stock equal to the product of (i) the notice(s) percentage of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption held by such Person and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C number of shares of Preferred Stock submitted to be sold in the contemplated Transfer. The Preferred Transferor shall use commercially reasonable efforts to obtain the agreement of the prospective transferee(s) to the Company by each such holder for redemption participation of the Tag-along Preferred Stockholders in the contemplated Transfer, and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned no Preferred Transferor shall Transfer any shares of Series C Preferred Stock shall be adjusted to the lesser of (Aany prospective transferee(s) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase transferee(s) refuses to allow the full participation of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionTag-along Preferred Stockholders as set forth herein.

Preferred Stock. If the Company shall fail to redeem all Any redemption of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation shares of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Class A-1 Preferred Stock shall bear interest be effected at a redemption price of $10.00 per share plus, in each case, an amount equal to all dividends (whether or not earned or declared) accrued and unpaid on such share of Class A-1 Preferred Stock to the rate date fixed for redemption. Notice of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder any proposed redemption of shares of Series C Class A-1 Preferred Stock submitted shall be given by the Corporation by mailing a copy of such notice no less than 20 days nor more than 60 days prior to the date fixed for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu redemption to holders of redemption, require the Company to promptly return to such holder(s) all record of the shares of Series C Class A-1 Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which to be redeemed at their respective addresses appearing on the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment books of the full Applicable Redemption Price to such holderCorporation. Said notice shall specify the shares called for redemption, (i) the notice(s) of redemption shall be null price and void with respect to those shares of Series C Preferred Stock submitted for redemption the place at which and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the shares called for redemption will, upon presentation and surrender of the certificates of stock evidencing such shares, be redeemed and the redemption price therefor paid. In the case of the redemption of less than all the outstanding shares of Class A-1 Preferred Stock, such redemption shall be of full shares selected by lot among all then outstanding Class A-1 Preferred Stock in such manner as may be prescribed by the Board of Directors. From and after the date fixed in any such notice as the date of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment of shares of Class A-1 Preferred Stock, unless default shall be made if such adjustment would result by the Corporation in an increase providing monies at the time and place specified for the payment of the Conversion Price then in effectredemption price pursuant to such notice, all dividends on the Class A-1 Preferred Stock thereby called for redemption shall cease to accrue and all rights of the holders thereof as stockholders of the Corporation, except the right to receive the redemption price, shall cease and terminate. A holder’s delivery All shares of Class A-1 Preferred Stock which shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued shares of Preferred Stock, without designation as to series until such shares are once more designated as part of a Void Optional Redemption Notice and exercise particular series by the Board of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionDirectors or an Authorized Board Committee.

Preferred Stock. If the Company shall fail By execution of this Agreement, each Major --------------- Stockholder which or who is an owner of shares of Radish Preferred Stock hereby waives (i) any right to redeem all advance notice of the Merger or the transactions contemplated thereby (including consummation of the Merger) to which such Major Stockholder may have been entitled under the Certificate of Incorporation of Radish or any agreement and (ii) any right to an appraisal to which such Major Stockholder may have been entitled under the Certificate of Incorporation or any agreement. It is further understood and agreed that Radish may renegotiate the exercise price of certain warrants presently owned by Packard Xxxx prior to the Effective Time of the Merger. The Major Stockholders hereby waive any right to adjustment of the conversion ratio applicable to such holder's shares of Radish Preferred as a result of any modification of the exercise terms of the Packard Xxxx Warrants. Each Major Stockholder elects to convert, on a one-for-one basis, all shares of Series A Preferred, Series B Preferred and Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.074.35% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series D Preferred held by such Major Stockholder effective immediately prior to the Effective Time of the Merger. Radish hereby agrees to take any and all actions necessary or appropriate to cause all outstanding shares of Series A Preferred, Series B Preferred and Series C Preferred Stock and 74.35% percent of the outstanding shares of Series D Preferred to convert on a one-for-one basis into shares of Radish Common effective immediately prior to the Effective Time. SystemSoft and the Company agree that were submitted for redemption by such holder(spurposes of exchanging SystemSoft Common for Radish Common as a result of the Merger, a share certificate of Radish Preferred (other than share certificates representing shares of Series D Preferred issued and outstanding at the Effective Time) under this Section 8 and for shall be deemed to represent the like number of shares of Radish Common, it being understood that no share certificates representing the Radish Common into which the Applicable Redemption Price Series A Preferred, Series B Preferred and Series C Preferred has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption converted shall be null issued by Radish. Furthermore, each Major Stockholder agrees that the Merger will constitute a liquidation event under Red's Certificate of Incorporation and void with respect to that only those shares of Series C D Preferred Stock submitted for redemption and for which the Applicable Redemption Price has that have not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned converted into shares of Series C Preferred Stock Radish Common, as provided above, shall be adjusted entitled to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders preferred stock liquidation preference in connection with a Major Transactionthe Merger.

Preferred Stock. If the Company shall fail to redeem all of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of The shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Class A-1 Preferred Stock shall be adjusted preferred as to assets over the shares of the Common Stock or any other capital stock of the Corporation ranking junior to the lesser Class A-1 Preferred Stock upon liquidation, dissolution or winding up of (A) the Conversion Price Corporation so that in the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of the Class A-1 Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to its stockholders, whether from capital, surplus or earnings, after distribution and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered payment in full to the Company; provided that no adjustment shall be made if such adjustment would result in an increase holders of any capital stock of the Conversion Price then in effect. A holder’s delivery Corporation ranking prior to the Class A-1 Preferred Stock upon liquidation, dissolution or winding up of a Void Optional Redemption Notice the Corporation of the preferential amounts and exercise dividends payable thereon, and before any distribution is made to holders of its rights following shares of the Common Stock or any other capital stock of the Corporation ranking junior to the Class A-1 Preferred Stock upon liquidation, dissolution or winding up of the Corporation, an amount equal to $10.00 per share plus an amount equal to all dividends (whether or not earned or declared) accrued and unpaid on such notice shall not affect the Company’s obligations to make any payments which have accrued prior share of Class A-1 Preferred Stock to the date of final distribution. If, upon any liquidation, dissolution or winding up of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders of shares of Class A-1 Preferred Stock or any capital stock ranking on a par with the Class A-1 Preferred Stock upon liquidation, dissolution or winding up of the Corporation, shall be insufficient to pay in full the preferential amounts to which such noticestock would be entitled, then such assets, or the proceeds thereof, shall be distributable among such holders ratably in accordance with the respective amounts which would be payable on such shares if all amounts payable thereof were payable in full. For the avoidance purposes hereof, neither a consolidation nor a merger of doubtthe Corporation with one or more other corporations, payments provided for in this Section 8 nor a sale or a transfer of all or substantially all of the assets of the Corporation, shall have priority be deemed to payments to other stockholders in connection with be a Major Transactionliquidation, dissolution or winding up, voluntary or involuntary, of the Corporation.

Preferred Stock. If The shares of preferred stock may be issued in series, and shall have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the Company shall fail resolution or resolutions providing for the issuance of such stock adopted from time to redeem all time by the board of directors. The board of directors is expressly vested with the authority to determine and fix in the resolution or resolutions providing for the issuances of preferred stock the voting powers, designations, preferences and rights, and the qualifications, limitations or restrictions thereof, of each such series to the full extent now or hereafter permitted by the laws of the Series C Preferred Stock submitted State of Delaware. The authorized shares of preferred stock will be available for redemption (other than pursuant issuance without further action by our stockholders unless such action is required by applicable law or the rules of any stock exchange or automated quotation system on which our securities may be listed or traded. The NYSE American currently requires stockholder approval as a prerequisite to a dispute as to the arithmetic calculation of the Applicable Redemption Price)listing shares in several circumstances, including, in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreementcertain circumstances, where the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder issuance of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would could result in an increase in the number of shares of common stock outstanding, or in the amount of voting securities outstanding, of at least 20%. Transfer Agent and Registrar The Transfer Agent and Registrar for our common stock is Computershare, 0000 Xxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx Xxxxx, XX 00000. DESCRIPTION OF DEBT SECURITIES As used in this prospectus, debt securities means the debentures, notes, bonds and other evidences of indebtedness that AGH may issue from time to time. Debt securities offered by this prospectus will be either senior debt securities or subordinated debt securities. Senior debt securities will be issued under a “Senior Indenture” and subordinated debt securities will be issued under a “Subordinated Indenture.” This prospectus sometimes refers to the Senior Indenture and the Subordinated Indenture collectively as the “Indentures.” 35 The form of Senior Indenture and the form of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior Subordinated Indenture are filed as exhibits to the date of such noticeregistration statement. For the avoidance of doubt, payments provided for The statements and descriptions in this Section 8 shall have priority prospectus or in any prospectus supplement regarding provisions of the Indentures and debt securities are summaries thereof, do not purport to payments to other stockholders be complete and are subject to, and are qualified in connection with a Major Transactiontheir entirety by reference to, all of the provisions of the Indentures and debt securities, including the definitions therein of certain terms.

Preferred Stock. If the Company The Depositary shall fail to redeem all transmit notice of the Series C Preferred Stock submitted for Corporation’s redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C E Preferred Stock submitted and the proposed simultaneous redemption of the number of Depositary Shares representing such shares of the Series E Preferred Stock to be redeemed by first-class mail, postage prepaid, or by such other method approved by the Depositary (in its reasonable discretion), in either case not less than 30 days and not more than 60 days prior to the date fixed for redemption, redemption of such holder shall have the option shares of Series E Preferred Stock and Depositary Shares (the “Void Optional Redemption OptionDate”), to the Record Holders of the Receipts evidencing the Depositary Shares to be so redeemed at the addresses of such Holders as they appear on the records of the Depositary; but neither failure to mail or transmit any such notice of redemption of Depositary Shares to one or more such Holders nor any defect in any notice of redemption of Depositary Shares to one or more such Holders shall affect the sufficiency of the proceedings for redemption as to the other Holders. Each such notice shall be prepared by the Corporation and shall state: (i) tothe Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such Holder are to be redeemed, the number of such Depositary Shares held by such Holder to be so redeemed; (iii) the applicable Redemption Price; (iv) the place or places where Receipts evidencing such Depositary Shares are to be surrendered for payment of the redemption price; and (v) that dividends in lieu respect of the Series E Preferred Stock represented by such Depositary Shares to be redeemed will cease to accrue on such Redemption Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected either pro rata or by lot. Notice having been mailed or transmitted by the Depositary as aforesaid, from and after the Redemption Date (unless the Corporation shall have failed to provide the funds necessary to redeem the Series E Preferred Stock evidenced by the Depositary Shares called for redemption, require the Company to promptly return to such holder(s) all of (i) dividends on the shares of Series C E Preferred Stock that were submitted so called for redemption by shall cease to accrue from and after such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paiddate, (ii) the Company Depositary Shares being redeemed from such proceeds shall immediately return any Series C Preferred Stock submitted be deemed no longer to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and be outstanding, (iii) all rights of the Conversion Price Holders of Receipts evidencing such Depositary Shares (except the right to receive the applicable Redemption Price) shall, to the extent of such returned shares Depositary Shares, cease and terminate, and (iv) upon surrender in accordance with such redemption notice of the Receipts evidencing any such Depositary Shares called for redemption (properly endorsed or assigned for transfer, if the Depositary or applicable law shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemption price per Depositary Share equal to 1/40th of the redemption price per share of Series C E Preferred Stock shall be adjusted so redeemed plus all money and other property, if any, represented by such Depositary Shares, including all amounts paid by the Corporation in respect of dividends in accordance with the provisions of the Certificate of Designations. If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the lesser Holder of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered such Receipt upon its surrender to the Company; provided that no adjustment shall be made if such adjustment would result in an increase Depositary, together with the applicable Redemption Price for all of the Conversion Price then in effect. A holder’s delivery of Depositary Shares redeemed, a Void Optional Redemption Notice new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided called for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionredemption.

Preferred Stock. If the Company The Depositary shall fail to redeem all mail, first class postage prepaid, notice of the redemption of Series C F Preferred Stock submitted and the proposed simultaneous redemption of the Depositary Shares representing the Series F Preferred Stock to be redeemed, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Series F Preferred Stock and Depositary Shares (other than pursuant the "Redemption Date"), to a dispute the record holders of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as they appear on the records of the Depositary; but neither failure to mail any such notice to one or more such holders nor any defect in any notice to one or more such holders shall affect the sufficiency of the proceedings for redemption as to other holders. Each such notice shall state: (i) the arithmetic calculation Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; (iii) the redemption price (as set forth in the Certificate of Designations); (iv) the place or places where Receipts evidencing Depositary Shares are to be surrendered for payment of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation redemption price; and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable (v) that dividends in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C F Preferred Stock that were submitted for redemption represented by the Depositary Shares to be redeemed will cease to accumulate on such holder(s) under this Section 8 and for which Redemption Date. Notices shall be mailed by the Applicable Redemption Price has not been paid, by sending written notice thereof Company pursuant to the Certificate of Designations. In case fewer than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be selected by lot or pro rata (as nearly as may be) or by any other equitable method determined by the Depositary to be consistent with the method determined by the Board of Directors of the Company with respect to the Series F Preferred Stock. Notice having been mailed as aforesaid, from and after the Redemption Date (unless the “Void Optional Redemption Notice”). Upon Company shall have failed to redeem the shares of Series F Preferred Stock to be redeemed by it, as set forth in the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of 's notice provided for in the full Applicable Redemption Price to such holderpreceding paragraph), (i) the notice(s) of Depositary Shares called for redemption shall be null deemed no longer to be outstanding and void all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the redemption consideration) shall, to the extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with respect said notice of the Receipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, as the Depositary shall so require), such Depositary Shares shall be redeemed at a rate per Depositary Share equal to those shares 1/10 of the amount of cash delivered upon redemption of a share of Series C F Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted pursuant to the Company Certificate of Designations. If fewer than all the Depositary Shares evidenced by each such a Receipt are called for redemption, the Depositary will deliver to the holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted Receipt upon its surrender to the lesser Depositary, together with the amount of (A) cash for the Conversion Price Depositary Shares called for redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided called for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionredemption.

Preferred Stock. If the Company The Notice shall fail be given by first class mail, postage prepaid, to redeem all each holder of record of the Series C C-1 Preferred Stock submitted for redemption (other than pursuant to a dispute be redeemed, at such holder's address as to it shall appear upon the arithmetic calculation stock transfer books of the Applicable Redemption Price), in addition to any remedy Corporation. Each such holder notice of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, redemption shall specify the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted date fixed for redemption, such holder shall have the option (Redemption Price, the “Void Optional Redemption Option”) tothen current Conversion Price, in lieu the place or places of redemption, require payment and conversion and that payment or conversion will be made upon presentation of and surrender of the Company to promptly return to such holder(s) all of certificates evidencing the shares of Series C C-1 Preferred Stock to be redeemed or converted, and that were submitted the Series C-1 Preferred Stock may be converted at any time before the close of business on such date fixed for redemption. Any Notice that is mailed as herein provided shall be conclusively presumed to have been duly given, whether or not the holder of the Series C-1 Preferred Stock receives such Notice; and failure to give such Notice by mail, or any defect in such notice, to a Holder of any shares designated for redemption shall not affect the validity of the proceedings for the redemption of any shares of Series C-1 Preferred Stock owned by other Holders to whom such holder(sNotice was duly given. On or after the date fixed for redemption as stated in such Notice, each Holder of the shares called for redemption shall surrender the certificate evidencing such shares to the Corporation at the place designated in such Notice and shall thereupon be entitled to receive payment of the Redemption Price. If less than all the shares represented by any such surrendered certificate are redeemed, a new certificate shall be issued without cost to the Holder thereof representing the unredeemed shares. If such Notice shall have been so mailed and if, on or prior to the redemption date specified in such Notice, all funds necessary for such redemption shall have been set aside by the Corporation, separate and apart from its other funds, in trust for the account of the Holders of the shares so to be redeemed (as to be and continue to be available therefor), then on and after the redemption date, notwithstanding that any certificate for shares of the Series C-1 Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of the Series C-1 Preferred Stock with respect to which such Notice shall have been mailed and such funds shall have been set aside shall be deemed to be no longer outstanding and all rights with respect to such shares of the Series C-1 Preferred Stock so called for redemption shall forthwith cease and terminate, except the right of the Holders to receive out of the funds so set aside in trust the amount payable on the redemption thereof (including an amount equal to accrued and unpaid dividends to the date of redemption) without interest thereon. The Holder of any shares of Series C-1 Preferred Stock redeemed upon any exercise of the Corporation's redemption right under this Section 8 and for which the Applicable Redemption Price has 5(b) shall not been paid, by sending written notice thereof be entitled to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to receive payment of the full Applicable Redemption Price for such shares until such Holder shall cause to such holder, be delivered to the place specified in the Notice (i) the notice(scertificate(s) of redemption shall be null and void with respect to those representing such shares of Series C C-1 Preferred Stock submitted for redemption redeemed and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted transfer instrument(s) satisfactory to the Company by each Corporation and sufficient to transfer such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C C-1 Preferred Stock shall be adjusted to the lesser Corporation free of (A) any adverse interests; provided, that the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption foregoing is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered subject to the Company; provided that no adjustment shall be made if such adjustment would result in an increase other provisions of the Conversion Price then in effect. A holder’s delivery Corporation's certificate of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect incorporation or the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionCorporation's bylaws governing lost certificates generally.

Preferred Stock. If The Depositary shall mail, first-class postage prepaid, notice of the redemption of Preferred Stock and the proposed simultaneous redemption of the Depositary Shares representing the Preferred Stock to be redeemed, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Preferred Stock and Depositary Shares (the "cash redemption date"), to the holders of record on the record date fixed for such redemption pursuant to Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as the same appear on the records of the Depositary; but neither failure to mail any such notice to one or more such holders nor any defect in any notice shall affect the sufficiency of the proceedings for redemption as to other holders. The Company shall fail provide the Depositary with such notice, and each such notice shall state: the record date for the purposes of such redemption; the cash redemption date; the number of Depositary Shares to redeem be redeemed; if fewer than all the Depositary Shares held by any holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; the cash redemption price; the place or places where Receipts evidencing Depositary Shares to be redeemed are to be surrendered for payment of the Series C cash redemption price; and that from and after the cash redemption date dividends in respect of the Preferred Stock submitted for redemption (other than pursuant represented by the Depositary Shares to a dispute as be redeemed will cease to accrue and the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable conversion rights in respect of such unredeemed Series C Preferred Stock shall bear interest will terminate at the rate close of 1.0% per month business on the last business day preceding such cash redemption date. In case fewer than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be selected by lot or pro rata (prorated for partial monthsas nearly as may be) until paid or in fullany other equitable manner determined by the Company. Until Notice having been mailed by the Depositary as aforesaid, from and after the cash redemption date (unless the Company pays such unpaid Applicable Redemption Price in full shall have failed to a holder of redeem the shares of Series C Preferred Stock submitted to be redeemed by it as set forth in the Company's notice provided for redemptionin the preceding paragraph), such holder shall have the option (the “Void Optional Redemption Option”) to, all dividends in lieu of redemption, require the Company to promptly return to such holder(s) all respect of the shares of Series C Preferred Stock that were submitted called for redemption by shall cease to accrue, the conversion rights in respect of such holder(sPreferred Stock shall terminate, the Depositary Shares called for redemption shall be deemed no longer to be outstanding and all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the cash redemption price) under this Section 8 and for which the Applicable Redemption Price has not been paidshall, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”)extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Company’s receipt Receipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed at a cash redemption price per Depositary Share equal to one quarter of the cash redemption price per share paid in respect of the shares of Preferred Stock pursuant to the Certificate of Designation plus any other money and other property represented by each such Depositary Share. The foregoing shall be subject further to the terms and conditions of the Certificate of Designation. If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the holder of such Void Optional Redemption Notice(s) and prior Receipt upon its surrender to the Depositary, together with payment of the full Applicable Redemption Price cash redemption price for the Depositary Shares called for redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption. The Depositary shall not be required (a) to such holderissue, (i) transfer or exchange any Receipts for a period beginning at the notice(s) opening of redemption shall be null business 15 days next preceding any selection of Depositary Shares and void with respect to those shares of Series C Preferred Stock submitted for redemption to be redeemed and for which ending at the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price close of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning business on the date on which day of the mailing of notice of redemption is delivered and ending on of Depositary Shares or (b) to transfer or exchange for another Receipt any Receipt evidencing Depositary Shares called or being called for redemption in whole or in part, except as provided in the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase preceding paragraph of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction2.3.

Preferred Stock. If the Company The Depositary shall fail to redeem all transmit notice of the Series C Preferred Stock submitted for Corporation’s redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemptionand the proposed simultaneous redemption of the number of Depositary Shares representing such shares of the Series C Preferred Stock to be redeemed by first-class mail, postage prepaid, or by such holder shall have other method approved by the option Depositary (the “Void Optional Redemption Option”) toin its reasonable discretion), in lieu either case not less than 30 days and not more than 60 days prior to the date fixed for redemption of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company Depositary Shares (the “Void Optional Redemption NoticeDate”). Upon , to the Company’s receipt Record Holders of the Receipts evidencing the Depositary Shares to be so redeemed at the addresses of such Void Optional Redemption Notice(s) and prior to payment Holders as they appear on the records of the full Applicable Redemption Price Depositary; but neither failure to mail or transmit any such holder, notice of redemption of Depositary Shares to one or more such Holders nor any defect in any notice of redemption of Depositary Shares to one or more such Holders shall affect the sufficiency of the proceedings for redemption as to the other Holders. Each such notice shall be prepared by the Corporation and shall state: (i) the notice(sRedemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such Holder are to be redeemed, the number of such Depositary Shares held by such Holder to be so redeemed; (iii) the applicable Redemption Price; (iv) the place or places where Receipts evidencing such Depositary Shares are to be surrendered for payment of the redemption shall be null price; and void with (v) that dividends in respect to those shares of the Series C Preferred Stock submitted for redemption and for which represented by such Depositary Shares to be redeemed will cease to accrue on such Redemption Date. In case less than all the Applicable Redemption Price has not been paidoutstanding Depositary Shares are to be redeemed, (ii) the Company shall immediately return any Series C Preferred Stock submitted Depositary Shares to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock be so redeemed shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionselected either pro rata or by lot.

Preferred Stock. If The authorized Preferred Stock may be issued in the Company shall fail to redeem all future without any further action by the holders of the Series C Common Stock, except as provided in Article Tenth of L-P's Certificate of Incorporation discussed above. The board of directors is authorized to divide the Preferred Stock submitted into series and within the limitations provided by law and L-P's charter, to designate the different series and fix and determine the relative rights and preferences of any series so established. If Preferred Stock is issued, the rights of the holders of Common Stock will be subordinated in certain respects to the rights of the holders of the Preferred Stock. Preferred Stock Purchase Rights Effective June 6, 1988, L-P distributed purchase rights ("Rights") to holders of Common Stock on the basis of one Right for redemption each share pursuant to a Rights Agreement. A copy of the Rights Agreement as amended and restated as of February 3, 1991 (the "Rights Agreement"), may be obtained by stockholders from L-P. Each Right entitles the registered holder to purchase from L-P one one-hundredth of a share of Series A Junior Participating Cumulative Preferred Stock, $1 par value, of L-P (the "Preferred Shares"). The Rights are not exercisable and are attached to and trade with shares of Common Stock until the earlier of (i) 10 days following a public announcement that a person, other than certain exempt persons, has acquired, or obtained the right to acquire, beneficial ownership of 20 percent or more of the outstanding Common Stock, other than pursuant to a dispute Qualifying Tender Offer (as defined) (an "Acquiring Person"), or (ii) 10 business days following the commencement of, or announcement of an intention to make, a tender offer or exchange offer (other than a Qualifying Tender Offer) the consummation of which would result in the beneficial ownership by a person of 30 percent or more of the outstanding Common Stock. Upon such an event, the Rights will trade separately. When the Rights first become exercisable, holders of the Rights will be entitled to receive, upon exercise and the payment of $75.00 per Right (the "Purchase Price"), one one-hundredth of a Preferred Share. Unless the Rights are earlier redeemed or exchanged, in the event that a person becomes an Acquiring Person, each holder of a Right (other than Rights beneficially owned by the Acquiring Person or certain transferees, which will thereafter be void) will thereafter have the right to receive, upon exercise and payment of the Purchase Price, shares of Common Stock having a value equal to two times the Purchase Price. Similarly, upon the occurrence of certain acquisition transactions involving L-P, proper provision must be made so that each holder of a Right (other than Rights beneficially owned by the Acquiring Person or certain transferees, which will thereafter be void) thereafter will have the right to receive, upon exercise and payment of the Purchase Price, common stock of the acquiring company having a value equal to two times the Purchase Price. At any time after a person becomes an Acquiring Person and prior to the arithmetic calculation acquisition by such Acquiring Person of 50 percent or more of the Applicable Redemption Priceoutstanding shares of Common Stock, L-P may exchange the Rights (other than Rights beneficially owned by such Acquiring Person or certain transferees, which became null and void), in addition to any remedy such holder of Series C Preferred whole or in part, for Common Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% one share per month Right, subject to adjustments to prevent dilution. Each Preferred Share will be entitled to receive upon declaration the greater of (prorated for partial monthsi) until paid cash and non-cash dividends in fullan amount equal to 100 times the per share dividends declared on the Common Stock or (ii) a preferential annual dividend of $92.00 per share. The holders of Preferred Shares, voting as a separate class, will be entitled to elect two directors if dividends on such stock are in arrears in an amount equal to six quarterly dividends. In the event of liquidation, each Preferred Share will be entitled to receive a liquidation payment in an amount equal to the greater of $1.00 plus all accrued and unpaid dividends and distributions or an amount equal to 100 times the aggregate amount to be distributed per share of Common Stock. Each Preferred Share will have one vote, voting together with the Common Stock. In the event of any merger, consolidation, or other transaction in which shares of Common Stock are exchanged, each Preferred Share will be entitled to receive 100 times the amount received per share of Common Stock. The Rights will expire on June 6, 1998, unless earlier redeemed or exchanged by L-P. Until the Company pays such unpaid Applicable Redemption Price in full to a holder close of shares business on the earlier of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price 10th day following public announcement that a person has not been paid, become an Acquiring Person or (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the expiration date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect Rights, the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.Rights may be redeemed at

Preferred Stock. Underwriting Agreement , 19.. To the Representatives of the several Underwriters named in the respective Pricing Agreements hereinafter described. Ladies and Gentlemen: From time to time Forest City Enterprises, Inc., an Ohio corporation (the "Company"), proposes to enter into one or more Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the "Underwriters" with respect to such Pricing Agreement and the securities specified therein) certain shares of its Preferred Stock without par value (the "Shares") which may be represented by depositary shares (the "Depositary Shares") deposited against delivery of Depositary Receipts (the "Depositary Receipts") evidencing the Depositary Shares which are to be issued by the depositary specified in Schedule II to such Pricing Agreement (the "Depositary"), under a deposit agreement, dated the date specified in Schedule II to such Pricing Agreement, among the Company, the Depositary and the holders from time to time of the Depositary Receipts issued thereunder. Each Depositary Share will represent beneficial ownership of the fraction of a share of Preferred Stock, as specified in Schedule II to such Pricing Agreement. The shares of Preferred Stock or the Depositary Shares representing such shares specified in such Pricing Agreement, as the case may be, are referred to as the "Firm Shares" with respect to such Pricing Agreement and the shares of Preferred Stock represented by such Pricing Agreement are referred to as the shares of "Designated Preferred Stock" with respect to such Pricing Agreement. If specified in such Pricing Agreement, the Company shall fail may grant the Underwriters the right to redeem all purchase at their election an additional number of the Series C shares of Preferred Stock submitted for redemption or Depositary Shares, as the case may be, specified as provided in such Pricing Agreement as provided in Section 3 hereof (other than the "Optional Shares"). The Firm Shares and the Optional Shares, if any, which the Underwriters elect to purchase pursuant to a dispute Section 3 hereof are herein collectively referred to as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C "Designated Shares". The Designated Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of be convertible into shares of Series C Preferred Class A Common Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”"Stock"). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price , as specified in Schedule II to such holderPricing Agreement. The securities so specified, (i) if any, are referred to in such Pricing Agreement as the notice(s) of redemption shall be null and void Designated Securities with respect to those shares such Pricing Agreement. The terms and rights of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price particular issuance of such returned shares of Series C Preferred Stock Designated Shares shall be adjusted to as specified in the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionPricing Agreement relating thereto.

Preferred Stock. If the Company The Notice shall fail be given by first class mail, postage prepaid, to redeem all each Holder of record of the Series C C-2 Preferred Stock submitted for redemption (other than pursuant to a dispute be redeemed, at such Holder's address as to it shall appear upon the arithmetic calculation stock transfer books of the Applicable Redemption Price), in addition to any remedy Corporation. Each such holder notice of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, redemption shall specify the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted date fixed for redemption, such holder shall have the option (Redemption Price, the “Void Optional Redemption Option”) to, in lieu place or places of redemption, require payment and that payment will be made upon presentation of and surrender of the Company to promptly return to such holder(s) all of certificates evidencing the shares of Series C C-2 Preferred Stock to be redeemed. Any Notice that were submitted is mailed as herein provided shall be conclusively presumed to have been duly given, whether or not the Holder of the Series C-2 Preferred Stock receives such Notice; and failure to give such notice by mail, or any defect in such Notice, to a Holder of any shares designated for redemption shall not affect the validity of the proceedings for the redemption of any shares of Series C-2 Preferred Stock owned by other Holders to whom such holder(sNotice was duly given. On or after the date fixed for redemption as stated in such Notice, each Holder of the shares called for redemption shall surrender the certificate evidencing such shares to the Corporation at the place designated in such Notice and shall thereupon be entitled to receive payment of the Redemption Price. If less than all the shares represented by any such surrendered certificate are redeemed, a new certificate shall be issued without cost to the Holder thereof representing the unredeemed shares. If such Notice shall have been so mailed and if, on or prior to the redemption date specified in such Notice, all funds necessary for such redemption shall have been set aside by the Corporation, separate and apart from its other funds, in trust for the account of the holders of the shares so to be redeemed (as to be and continue to be available therefor), then on and after the redemption date, notwithstanding that any certificate for shares of the Series C-2 Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of the Series C-2 Preferred Stock with respect to which such Notice shall have been mailed and such funds shall have been set aside shall be deemed to be no longer outstanding and all rights with respect to such shares of the Series C-2 Preferred Stock so called for redemption shall forthwith cease and terminate, except the right of the Holders to receive out of the funds so set aside in trust the amount payable on the redemption thereof (including an amount equal to accrued and unpaid dividends to the date of redemption) without interest thereon. The Holder of any shares of Series C-2 Preferred Stock redeemed upon any exercise of the Corporation's redemption right under this Section 8 and for which the Applicable Redemption Price has 5(b) shall not been paid, by sending written notice thereof be entitled to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to receive payment of the full Applicable Redemption Price for such shares until such Holder shall cause to such holder, be delivered to the place specified in the Notice (i) the notice(scertificate(s) of redemption shall be null and void with respect to those representing such shares of Series C C-2 Preferred Stock submitted for redemption redeemed and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted transfer instrument(s) satisfactory to the Company by each Corporation and sufficient to transfer such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C C-2 Preferred Stock shall be adjusted to the lesser Corporation free of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Companyany adverse interests; provided that no adjustment shall be made if such adjustment would result in an increase the foregoing is subject to the other provisions of the Conversion Price then in effect. A holder’s delivery Corporation's certificate of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect incorporation or the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionCorporation's bylaws governing lost certificates generally.

Preferred Stock. If the The Company Borrower shall fail to redeem all not, and shall not permit any of the Series C Preferred Stock submitted for redemption its Restricted(a) Subsidiaries to, directly or indirectly, Incur any Indebtedness (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to including Acquired Indebtedness) or issue any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 Disqualified Stock; and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company Borrower shall immediately return not permit any Series C of its Restricted Subsidiaries to issue any shares of Preferred Stock submitted to Stock; provided, however, that the Company by Borrower and any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company Borrower and any of its Restricted Subsidiaries may issue shares of Preferred Stock, in each such holder case if the Fixed Charge Coverage Ratio of the Company Borrower and its Restricted Subsidiaries for redemption and the most recently ended four full fiscal quarters for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the notice net proceeds therefrom), as if the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of redemption is delivered proceeds therefrom had occurred at the beginning of such four-quarter period; provided, however, that, on a pro forma basis, together with any amounts Incurred or issued, as applicable, and ending outstanding by Restricted Subsidiaries that are not Guarantors pursuant to Section 6.1(b)(xiv) and Section 6.1(b)(xxiii), no more than the greater of $400,000,000 and 10.00% of Total Assets of Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding and incurred or issued, as applicable, pursuant to this Section 6.1(a)) shall be incurred by -114- Restricted Subsidiaries that are not Guarantors; provided, further, that Holdings may guarantee, on an unsecured basis, any Indebtedness incurred by Foreign Subsidiaries pursuant to this Section 6.1(a). The limitations set forth in Section 6.1(a) shall not apply to (such Indebtedness,(b) and any Indebtedness permitted to be Incurred pursuant to Section 6.1(a), “Permitted Debt”): Indebtedness Incurred pursuant to this Agreement and any other Loan(i) Document; Indebtedness Incurred pursuant to the ABL Documents; provided, that the(ii) aggregate amount of Indebtedness permitted under this clause (ii) shall not exceed an amount equal to the greater of (a) $650,000,000 and (b) the sum of (w) 85% of the book value of the accounts receivable of the Company Borrower and its Restricted Subsidiaries, (x) 80% of the book value of the inventory of the Company Borrower and its Restricted Subsidiaries, and (y) 50% of the book value of the equipment of the Company Borrower and its Restricted Subsidiaries (such clauses (b)(w), (x) and (y), collectively, the “Borrowing Base”); Indebtedness existing on the date Amendment No. 6 Effective Date (other than(iii) Indebtedness described in clauses (i) and (ii) of this Section 6.1(b)); provided, that any Indebtedness in excess of $40,000,000 (other than any intercompany Indebtedness) shall be set forth on Schedule 6.1; Permitted First Priority Refinancing Debt and Permitted Second Priority(iv) Refinancing Debt; Permitted Unsecured Refinancing Debt;(v) Indebtedness not to exceed (I) an amount equal to the sum of (a) an unlimited(vi) amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Indebtedness) as of the most recently completed period of four consecutive fiscal quarters for which the Void Option Redemption Notice(sfinancial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered (calculated assuming that such Indebtedness is fully drawn throughout such period) does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (c) below), plus (b) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to this Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time (less, in the case of this clause (b), the aggregate principal amount of Indebtedness Incurred under Section 2.19(a)(i)(y) or Section 6.1(b)(vi)(II)(b)), plus (c) the greater of (I) $470,000,000 and (II) Consolidated EBITDA for the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered to does not exceed, calculated on a Pro Forma Basis (less, in the Companycase of this clause (c), the aggregate principal amount of Indebtedness Incurred under Section 2.19(a)(i)(z) or Section 6.1(b)(vi)(II)(c)); provided that no adjustment shall be made if the Borrower may incur such adjustment would result Indebtedness under any of clause (a), (b), or (c) above in any such order and in any combination thereof as it may elect in its sole discretion and (II) an increase amount equal to the sum of (a) an unlimited amount at any time so long as the Total Net Secured Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Indebtedness) as of the Conversion Price then in effect. A holder’s delivery most recently completed period of a Void Optional Redemption Notice four consecutive fiscal quarters for which the financial statements and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.certificates -115-