Common use of Protective Provisions Clause in Contracts

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so long as any shares of Series B Preferred Stock are outstanding, the Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant hereto.

Protective Provisions. a. Subject to the rights of any series of preferred stock that Preferred Stock which may from time to time come into existence, so long as any shares of Series B Preferred Stock are outstanding, this corporation shall not without first obtaining the Corporation approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series B Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, in a manner that adversely affects the holders of shares of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B M Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretoStock.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, For so long as any shares of Series B A Preferred Stock are remain outstanding, the Corporation shall not (including, without first obtaining limitation by amendment to the approval (by Charter or through a merger or consolidation, or otherwise), without the consent or the affirmative vote or written consent, as provided by law) of the holders of at least a majority fifty-one percent (51%) of the then-outstanding shares of the Series B A Preferred StockStock outstanding at the time (the “Series A Majority”), given in person or by proxy, either in writing or at a meeting (with the Series A Preferred Stock voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to class), (i) increase voluntarily or involuntarily liquidate, dissolve or wind up the number Corporation, or effect any merger or consolidation or any other liquidation event (other than the merger between an affiliate of authorized shares the Corporation and ▇▇▇▇▇ Watermark Investors Incorporated on the Original Issue Date); provided, however, that the consent or the affirmative vote of the Series A Majority shall not be required if, at the effective time of consummation of such transaction described in this clause (i) (except to the extent as otherwise provided in Section 6(b) above), the Series A Preferred receive the then-due full redemption price pursuant to Section 6(b) above; (ii) amend, alter, or repeal any provision of the Corporation's preferred stock ’s Charter or (ii) affect bylaws or the governing documents of its operating partnership in a manner that affects adversely the shares of Series B Preferred Stock rights, preferences, privileges or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the voting rights of the holders of the Series B Preferred Stock in A Preferred; (iii) authorize, create or issue shares of any class or series of stock of the Corporation or any other respectsecurity convertible into or exercisable for any equity security, having rights, preferences or privileges senior to the Series A Preferred, or increase the authorized number of shares of Series A Preferred; provided, however, that any amendment to the authorization and Charter to authorize any increase in the number of authorized shares of Preferred Stock or Common Stock or the creation or issuance of additional shares of Common Stock, and creation of any other class or series of preferred stock (Parity Securities or issuing shares under any such series) that is junior in right of payment upon liquidationJunior Securities, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect any right, preference, privilege or voting right of shares of Series A Preferred Stock; or (iv) purchase or redeem capital stock of the Corporation (excluding shares purchased pursuant to the Corporation’s share redemption plan to the extent funded with proceeds from the Corporation’s dividend reinvestment plan, or DRIP),3 except with respect to this clause (iv) as necessary to maintain the REIT status of the Corporation. For purposes of this Section 8(b), the filing in accordance with applicable law of articles supplementary or any similar document setting forth or changing the designations, preferences, conversion or other rights, preferences voting powers, restrictions, limitation as to dividends and other distributions, qualifications or other terms of any class or series of stock of the Corporation shall be deemed an amendment to the Charter. Except as set forth herein, the holders of the Series A Preferred Stock shall not have any voting rights with respect to, and the consent of the holders of shares of the Series A Preferred Stock shall not be required for, the taking of any corporate action that is required to maintain the REIT status of the Corporation, regardless of the effect that such corporate action or event may have upon the powers, preferences, voting power or other rights or privileges of the Series B A Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretoStock.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B Preferred Stock are outstanding, the Corporation this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority sixty percent (60%) of the then-then outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock voting separately together as a seriessingle class: (a) amend sell, convey, or otherwise dispose of or encumber (other than pursuant to a credit arrangement in the ordinary course of business) all or substantially all of its Certificate property or business or merge into or consolidate with any other corporation (other than a wholly-owned subsidiary corporation) or effect any transaction or series of Incorporation related transactions in which more than fifty percent (including the filing of a Certificate of Designations50%) so as to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely voting power of the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that corporation is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock;disposed of; or (b) after the date of this Certificate of Designation, create any new debt instrument alter or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock; or increase (other than by redemption or conversion) the total number of authorized shares of Common Stock, Preferred Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock; or (c) authorize or issue, or obligate itself to issue, any holder thereof other equity security, including any other security convertible into or change exercisable for any equity security having a preference over, or being on a parity with, the rights Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock with respect to voting, dividends or upon liquidation; or (d) increase the authorized number of directors of the corporation. In addition, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least eighty percent (80%) of the then outstanding shares of Series D Preferred Stock, amend the articles of incorporation so as to, adversely affecting the Series B D Preferred Stock in a different manner than other shares of Preferred Stock, do any other respect. The Series B of the things described in Section 903(a)(1) through 903(a)(7) of the California Corporations Code with respect to either the Preferred Stock shall have no preemptive rights or the Series D Preferred Stock, all pursuant heretoto and within the meanings of Sections 903(a) and 903(b) of the California Corporation Code as in effect on January 1, 1998.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawin the BCL) of the holders Holders of at least a majority 80% of the then-then outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series B Preferred Stock as to distribution of assets upon liquidation, dissolution or any holder thereof winding up of the Corporation ("Senior Securities") or alter or change the rights rights, preferences or privileges of any Senior Securities so as to affect adversely the Series B Preferred Stock; (c) increase the authorized number of shares of Series B Preferred Stock; or (d) do any act or thing not authorized or contemplated by this Certificate of Designation which would result in taxation of the holders Holders of shares of the Series B Preferred Stock in under Section 305 of the Internal Revenue Code of 1986, as amended (or any other respectcomparable provision of the Internal Revenue Code of 1986, as hereafter from time to time amended). The In the event Holders of least a majority of the then outstanding shares of Series B Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series Preferred Stock, pursuant to subsection (a) above, so as to affect the Series B Preferred Stock, then the Corporation will deliver notice of such approved change to the Holders of the Series Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have no preemptive rights the right for a period of 30 days to convert pursuant heretoto the terms of this Certificate of Designation as in effect prior to such alteration or change or to continue to hold their shares of Series B Preferred Stock. Notwithstanding anything to the contrary herein, if at any time the Corporation shall "spin-off" certain of its assets or businesses by transferring, directly or indirectly, such assets or businesses to a Subsidiary of the Corporation ("Spinco") and making a dividend (the "Spin-off Dividend") to the Corporation's stockholders of the shares of capital stock of Spinco, then prior to making the Spin-off Dividend, the Corporation shall cause Spinco to issue to each Holder that number of shares of preferred stock of Spinco with substantially identical rights, preferences, privileges, powers, restrictions and other terms as the Series B Preferred Stock equal to the number of shares of Series B Preferred Shares held by such Holder immediately prior to the Spin-off Dividend.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B A Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawthe GCL) of the holders Holders of at least a majority of the then-then outstanding shares of Series B A Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B A Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or any holder thereof winding up of the Corporation ("Senior Securities") or alter or change the rights rights, preferences or privileges of any Senior Securities so as to affect adversely the Series A Preferred Stock; (c) increase the authorized number of shares of Series A Preferred Stock; or (d) do any act or thing not authorized or contemplated by this Amendment which would result in taxation of the holders Holders of shares of the Series B A Preferred Stock in under Section 305 of the Internal Revenue Code of 1986, as amended (or any other respectcomparable provision of the Internal Revenue Code as hereafter from time to time amended). The In the event Holders of at least a majority of the then outstanding shares of Series B A Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series A Preferred Stock, pursuant to subsection (a) above, so as to affect the Series A Preferred Stock, then the Corporation will deliver notice of such approved change to the Holders of the Series A Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have no preemptive rights the right for a period of thirty (30) days to convert pursuant heretoto the terms of this Amendment as they exist prior to such alteration or change or continue to hold their shares of Series A Preferred Stock.

Protective Provisions. Subject (a) So long as any shares of Series D Preferred Stock are outstanding, the vote or consent of the holders of a majority of the shares of Series D Preferred Stock at the time outstanding, voting as a single class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for effecting or validating any of the following actions, whether or not such approval is required by Louisiana law: (i) any amendment, alteration or repeal (including by means of a merger, consolidation or otherwise) of any provision of the Articles of Incorporation (including this Certificate of Designation) or the By-Laws that would adversely affect the rights or preferences of the Series D Preferred Stock (which shall not include, for the avoidance of doubt, any Reorganization Event in connection with which the Series D Preferred Stock is treated as provided in Section 6 above or any increase or decrease in the authorized amount of capital stock of the Corporation); or (ii) the consummation of a Reorganization Event in connection with which the Series D Preferred Stock is not converted or otherwise treated as provided in Section 6. Notwithstanding anything to the rights contrary herein, any increase in the amount of the authorized preferred stock or any securities convertible into preferred stock or the creation and issuance, or an increase in the authorized or issued amount, of any series of preferred stock that may from time to time come into existence, so long as any shares of Series B Preferred Stock are outstanding, the Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereofsecurities convertible into preferred stock, includingin any case ranking equally with, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is junior to and/or senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B D Preferred Stock in any other respect; provided, however, that with respect to the authorization and issuance payment of additional shares dividends (whether such dividends are cumulative or non-cumulative) and/or the distribution of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment assets upon the Corporation’s liquidation, redemptiondissolution or winding up will not, conversion in and payment rights and otherwise to the Series B Preferred Stock shall not of itself, be deemed to adversely affect the rights, preferences or privileges of the Series B D Preferred Stock and, notwithstanding any provision of Louisiana law, holders of Series D Preferred Stock will have no right to vote solely by reason of such an increase, creation or issuance. (b) Notwithstanding the foregoing, holders of Series D Preferred Stock shall not have any holder thereof voting rights if, at or change prior to the rights effective time of the act with respect to which such vote would otherwise be required, all outstanding shares of Series D Preferred Stock shall have been converted into shares of Common Stock. (c) In the event that the Corporation makes (i) an offer to repurchase shares of Common Stock from all of the holders thereof, or (ii) a tender offer for any shares of Common Stock, the Corporation shall also offer to repurchase or make a tender offer for, as applicable, shares of Series D Preferred Stock pro rata based upon the number of shares of Common Stock such holders would be entitled to receive if such shares were converted into shares of Common Stock immediately prior to such repurchase and otherwise on terms which would provide the holders of the Series B D Preferred Stock in any consideration and other respect. The terms equivalent to the terms offered to the holders of Common Stock assuming the Series B D Preferred Stock shall have no preemptive rights pursuant heretowere so converted.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B B-2 Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders Holders of at least a majority two-thirds (2/3) of the then-outstanding shares of Series B B-2 Preferred Stock, voting separately as a series: (ai) alter, change, modify or amend its Certificate (x) the terms of Incorporation the Series B-2 Preferred Stock in any way or (including y) the filing terms of a Certificate any other capital stock of Designations) the Corporation so as to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B B-2 Preferred Stock; (bii) after the date of this Certificate of Designation, create any new debt instrument class or create series of capital stock having a preference over or ranking pari passu with the Series B-2 Preferred Stock as to redemption or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of the Corporation; (iii) increase the authorized number of shares of Series B-2 Preferred Stock; (iv) re-issue any new shares of Series B-2 Preferred Stock which have been converted or existing bank line redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or similar arrangement pursuant Senior Securities; (vi) redeem, or declare, pay or make any provision for any dividend or distribution with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to which the Company is Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or becomes indebted), so that winding up of the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregateCorporation; or (cvii) change issue any Series B-2 Preferred Stock except pursuant to the rights terms of the holders Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B B-2 Preferred Stock in any other respect; provided, however, that agrees to allow the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (Corporation to alter or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect change the rights, preferences or privileges of the shares of Series B B-2 Preferred Stock or any holder thereof or pursuant to the terms hereof, then the Corporation will deliver notice of such approved change the rights of to the holders of the Series B B-2 Preferred Stock in any other respect. The Series B Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have no preemptive rights the right for a period of thirty (30) days following such delivery to convert their Preferred Shares pursuant heretoto the terms hereof as they existed prior to such alteration or change, or to continue to hold such Preferred Shares. No such change shall be effective to the extent that, by its terms, it applies to less than all of the Holders of Preferred Shares then outstanding.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so (a) So long as any shares of Series B Preferred Stock are outstanding, the Corporation shall not (either directly or indirectly by merger, consolidation, reclassification or similar transaction) without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately as a series: (ai) amend its Certificate Articles of Incorporation (including the filing of a Certificate of Designations) Incorporation, Bylaws or other governing documents so as to (i) increase the number of authorized shares of the Corporation's ’s preferred stock or (ii) affect adversely change the shares rights, preferences or privileges of the Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidationdividends, liquidation preference, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect change the rights, preferences or privileges of the Series B Preferred Stock; provided further, that the foregoing shall not, in any way, prevent the Corporation from unilaterally amending the Articles of Incorporation, authorizing and otherwise designating additional shares of Series B Preferred Stock or any holder thereof or change and issuing additional shares of Series B Preferred Stock to the rights of the then existing holders of the Series B Preferred Stock in any other respect. The and/or Registrable Securities, but only to the extent that such shares of Series B Preferred Stock are being issued in satisfaction of Non-Registration Fees. (ii) create, authorize, designate, offer, sell or issue any equity security (or security convertible into or exchangeable for an equity security) that is senior to or pari passu with the Series B Preferred Stock (including any Series B Preferred Stock other than pursuant to the Purchase Agreement) with respect to voting rights, dividends, liquidation preference or conversion rights; provided, however, that the foregoing shall have no preemptive not, in any way, prevent the Corporation from authorizing, designating, offering, selling or issuing any Common Stock or any series of preferred stock (or issuing shares under any such series) that is pari passu with the Series B Preferred Stock with respect to voting rights and/or dividends provided that such Common Stock or series of preferred stock is junior in liquidation preference to the Series B Preferred Stock; provided further, that the foregoing shall not, in any way, prevent the Corporation from unilaterally amending the Articles of Incorporation, authorizing and otherwise designating additional shares of Series B Preferred Stock and issuing additional shares of Series B Preferred Stock to the then existing holders of the Series B Preferred Stock and/or Registrable Securities, but only to the extent that such shares of Series B Preferred Stock are being issued in satisfaction of Non-Registration Fees. (iii) authorize, offer, sell or issue any shares of Series A Preferred Stock. (iv) create any new debt instrument or bank line or increase any existing bank line or debt obligation (or similar arrangement pursuant heretoto which the Corporation is or becomes indebted, but specifically excluding trade payables in the ordinary course of business and specifically excluding capital lease lines), so that the Corporation’s total indebtedness pursuant to such instruments, lines or arrangements entered into after the Original Issue Date exceeds $10,000,000 in the aggregate; or (v) declare or pay any Distribution (as defined below) with respect to any capital stock of the Corporation. (b) For purposes of this Section 12, “Distribution” shall mean the transfer of cash or other property without consideration, whether by way of dividend or otherwise, other than dividends on Common Stock payable in Common Stock, or the purchase or redemption of shares of the Corporation for cash or property other than repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Corporation or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right of said repurchase, provided such agreements either exist on the Original Issue Date or are approved by holders of a majority of the Series B Preferred Stock outstanding at the time such agreements become binding or at the time of such repurchase.

Protective Provisions. Subject In addition to the any other rights of any series of preferred stock that may from time to time come into existenceprovided by law, so long as any shares at least one share of Series B C Preferred Stock are is outstanding, the Corporation shall not not, without first obtaining the approval (by affirmative vote or written consent, as provided by law) consent of the holders of at least not less than a majority of the then-outstanding shares of the Series B C Preferred Stock, Stock voting separately together as a seriessingle class: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares or repeal any provision of the Corporation's preferred stock ’s Articles of Incorporation, Bylaws or (ii) affect this Certificate of Designation if such action would materially and adversely alter or change the shares of Series B Preferred Stock preferences, rights, privileges or any holder thereofpowers of, includingor the restrictions provided for the benefit of, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B C Preferred Stock; (b) after increase or decrease (other than by conversion) the date total number of this Certificate authorized shares of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; orSeries C Preferred Stock; (c) change the rights create or issue any series or class, reclassify any authorized capital stock of the holders Corporation into stock of any series or class, increase the authorized or issued amount of any class or series of stock, or authorize, create, issue or reclassify any obligation or security convertible or exchangeable into or evidencing a right to purchase capital stock of any class or series, that ranks prior to the Series C Preferred Stock as to dividends or rights upon liquidation, dissolution or winding up; (d) issue any Common Stock after the date on which Series C Preferred Stock has been last issued and sold, whether or not subsequently reacquired or retired by the Corporation, for a consideration per share less than fair market value of the Series B Preferred Common Stock (as determined in any good faith by the Board of Directors of the Corporation) at such issuance or deemed issuance other respect; provided, however, that the authorization and issuance of additional than: (1) shares of Common Stock issued in transactions giving rise to adjustments under Sections 7(d)(i) or (ii) above, (2) shares of Common Stock issued upon conversion of shares of Series C Preferred Stock, or (3) shares issued upon the conversion of Convertible Securities (as defined below) if the issuance of such Convertible Securities did not violate Section 8(e) below; (e) issue any Convertible Securities with respect to which the Effective Price is less than the fair market value of the Common Stock (as determined in good faith by the Board of Directors of the Corporation), at such issuance or deemed issuance. “CONVERTIBLE SECURITIES” means all rights or options for the purchase of, or stock or other securities convertible into, Common Stock (other than Common Stock issued for the purposes set forth in Sections 8(d)(1) or (2) above) or other Convertible Securities, whenever and creation each time issued. The “EFFECTIVE PRICE” with respect to any Convertible Securities means the result of dividing: (1) the sum of (x) the total consideration, if any, received by the Corporation for the issuance of such Convertible Securities, plus (y) the minimum consideration, if any, payable to the Corporation upon exercise or conversion of such Convertible Securities (assuming that the full amount of securities issuable upon exercise or conversion are issued), plus (z) the minimum consideration, if any, payable to the Corporation upon exercise or conversion of any series Convertible Securities issuable upon exercise or conversion of preferred stock such Convertible Securities, by: (2) the maximum number of Common Stock (other than Common Stock issued for the purposes set forth in Sections 8(d)(1) or issuing shares under (2) above) issuable upon exercise or conversion of such Convertible Securities or of any Convertible Securities issuable upon exercise or conversion of such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant hereto.Convertible Securities; or

Protective Provisions. Subject to (1) If and whenever at any time after the rights of any series of preferred stock that may from time to time come into existence, so long as any shares of Series B Preferred Stock are outstandingdate hereof, the Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase subdivide or redivide the outstanding Class A Non-Voting Common Shares into a greater number of authorized shares of the Corporation's preferred stock Class A Non-Voting Common Shares or (ii) affect adversely consolidate, combine or reduce the shares outstanding Class A Non-Voting Common Shares into a lesser number of Series B Preferred Stock Class A Non-Voting Common Shares, then, in each such event, the Purchase Price will, on the effective date of or the record date for such event, be adjusted by multiplying the Purchase Price in effect immediately prior to such date by a fraction, of which the numerator shall be total number of Class A Non-Voting Common Shares outstanding on such date before giving effect to such event, and of which the denominator shall be the total number of Class A Non-Voting Common Shares on such date after giving effect to such event. Such adjustment will be made successively whenever any holder thereofsuch event shall occur. (2) For greater certainty, including, but without limitation, by creating if at any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) time after the date hereof there shall occur any of this Certificate the following: (1) any reclassification or redesignation of Designationthe Class A Non-Voting Common Shares or any conversion, create exchange or other change of Class A Non-Voting Common Shares into other shares or securities or any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregateother capital reorganization; or (c2) any consolidation, amalgamation, merger, plan of arrangement or other form of reorganization involving the Corporation (other than a consolidation, amalgamation, plan of arrangement or other form of reorganization which does not result in any reclassification or redesignation of Class A Non-Voting Common Shares or conversion, exchange or other change of Class A Non-Voting Common Shares into other shares or securities), any of such events being called a "Capital Reorganization", the Aggregate Purchase Price that FUR shall be required to pay to Investco and the Onex Associates who thereafter sell any Shares hereunder to FUR shall be the Aggregate Purchase Price for the Shares (or the predecessor securities of the Shares) which would otherwise have been paid by FUR to Investco or the relevant Onex Associate if such Capital Reorganization had not occurred. (3) Upon the occurrence of any such Capital Reorganization, the parties hereto shall enter into an agreement supplemental hereto which shall provide for the amendment of this Agreement on such terms and conditions as may be necessary to protect the rights of FUR, Investco and the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretoOnex Associates hereunder.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so (A) So long as any shares of Series B A Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval of the Holders of at least two-thirds (by vote or written consent, as provided by law2/3) of the holders of at least a majority of the then-outstanding shares of Series B A Preferred Stock, voting separately alter, change, modify or amend (x) the terms of the Series A Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as a seriesto affect adversely the Series A Preferred Stock; and (B) So long as at least 50 shares of Series A Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval of the Holders of at least two-thirds (2/3) of the outstanding shares of Series A Preferred Stock: (ai) amend its Certificate create any new class or series of Incorporation (including capital stock having a preference over or ranking pari passu with the filing of a Certificate of Designations) so Series A Preferred Stock as to redemption or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of the Corporation; (iii) increase the authorized number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B A Preferred Stock; (biii) after re-issue any shares of Series A Preferred Stock which have been converted or redeemed in accordance with the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; orterms hereof; (civ) change the rights issue any Pari Passu Securities or Senior Securities (other than debt securities which may be convertible into or exchangeable for Common Stock or any other equity or convertible security of the holders Corporation junior to the Series A Preferred Stock); (v) redeem, or declare, pay or make any provision for any distribution of cash or other assets, whether as a dividend (other than a stock dividend) or otherwise with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to the Series B A Preferred Stock in any other respectas to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; provided, however, that the authorization and issuance of additional Corporation may repurchase shares of Common Stock, Stock as long as (i) such repurchase is offered to all of the Corporation's shareholders (on a pro rata basis or otherwise) and creation (ii) the purchase price for the shares to be repurchased is paid out of earnings of the Corporation for the then current and/or immediately preceding fiscal year; or (vi) issue any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise Series A Preferred Stock except pursuant to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges terms of the Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretoSecurities Purchase Agreement.

Protective Provisions. Subject (a) For so long as the Preferred Liquidation Amount with respect to the rights Preferred Units held by the Investors is at least $10,000,000 (or it is less than $10,000,000 as a result of partial redemptions of the Preferred Units by the Company from the Investors), the Company shall, unless it has received the prior written waiver of the Majority Preferred Holders: (i) pay and cause each of its Subsidiaries to pay all required Company-level taxes as and when due and payable; (ii) maintain and cause each of its Subsidiaries to maintain insurance (in accordance with past practice and industry standards); (iii) maintain and cause each of its Subsidiaries to maintain its existence, material licenses and material permits in good standing; (iv) maintain and cause each of its Subsidiaries to maintain books and records, with access provided to any series Investor in accordance with Section 4(b); (v) comply and cause each of preferred stock its Subsidiaries to comply with all applicable material laws, rules and regulations and all of its material contractual obligations; (vi) retain an independent, nationally or regionally recognized accounting firm acceptable to the Majority Preferred Holders as its auditor at all times (it being acknowledged that may from time BDO ▇▇▇▇▇▇▇, LLP is acceptable to time come into existencethe Majority Preferred Holders); (vii) hold meetings of the Board on at least a quarterly basis; (viii) make Tax Distributions to the holders of Units as and when required under the LLC Agreement (and the Company shall cause its direct and indirect Subsidiaries to make distributions sufficient to satisfy such obligation); provided, however, that, so long as any shares of Series B Preferred Stock are outstandingthe Senior Note Indenture is in effect and to the extent funded by distributions from DRC and its Subsidiaries, the Corporation aggregate Tax Distributions since the Issue Date shall not without first obtaining exceed the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately as a serieslesser of: (aA) amend the aggregate amount since the Issue Date of the relevant tax (including any penalties and interest) that DRC would owe if it were filing a separate tax return (or a separate consolidated or combined return with its Certificate Subsidiaries that are members of Incorporation DRC’s consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of DRC and such Subsidiaries from other taxable years; and (B) the aggregate amount of the relevant tax that the Equityholders actually owe to the appropriate taxing authority after the date hereof; provided, further, however, that any Tax Distributions received from the Company from funds provided by DRC and its Subsidiaries shall be paid over to the appropriate taxing authority within 30 days of receipt by the Equityholders of such Tax Distributions or refunded to the Company (which refunded amounts shall be paid to DRC; (ix) within 90 days after the commencement of each fiscal year, approve the Company’s business plan, which plan shall include an annual budget and which budget shall include the aggregate compensation to be paid during such fiscal year to Executive Officers of the Company (such plan and budget (including the filing aggregate compensation to be paid during such fiscal year to Executive Officers of the Company) being approved by the Board, including at least one of the Board members appointed by the Guggenheim Investors); (x) for so long as CDP or any of its Affiliates own any Membership Interest in the Company, CDP shall cause ▇▇▇▇▇▇▇ ▇. Cloobeck to devote such time and attention that is reasonable and appropriate to manage the business of the Company and its Subsidiaries as conducted from time to time; and (xi) enforce the provisions of the LLC Agreement. (b) For so long as the Preferred Liquidation Amount with respect to the Preferred Units held by the Investors is at least $10,000,000 (or it is less than $10,000,000 as a Certificate result of Designations) so as to partial redemptions of the Preferred Units by the Company from the Investors), the Company shall not, unless it has received the prior written consent of the Majority Preferred Holders: (i) increase expand the number of authorized shares of the Corporation's preferred stock or Board to greater than seven (7) members; (ii) affect adversely alter or change the shares rights, preferences or obligations of Series B the Preferred Stock or any holder thereofUnits, including, without limitation, by creating or reclassifying any additional class or series of preferred stock equity securities of the Company or any of its Subsidiaries on parity with or having preference over the Preferred Units; (iii) repurchase or issuing shares redeem any Junior Securities prior to the redemption of all of the Preferred Units; provided, that the Company may, without the consent of the Majority Preferred Holders, repurchase or redeem Junior Securities held by any employee of the Company or any of its Subsidiaries in the event of such employee’s death, retirement or termination of employment to the extent permitted under the Senior Secured Notes; (iv) make any distributions on any Junior Securities except for Tax Distributions as and when required under the LLC Agreement (and the Company shall cause its direct and indirect Subsidiaries to make distributions sufficient to satisfy such seriesobligation, subject to the limitations, if any, set forth in Section 8(a)(viii)); (v) that is amend or modify the LLC Agreement, this Agreement or the Company’s certificate of formation; (vi) merge or consolidate or permit any of its Subsidiaries to merge or consolidate with or into any Person which requires a capital infusion by the Company in excess of $10,000,000; (vii) liquidate, wind up or sell, or permit any of its Subsidiaries to liquidate, wind up or sell, all or substantially all of its assets (on a consolidated basis); (viii) incur Indebtedness in excess of any limitations on Indebtedness set forth in the Senior Note Indenture; (ix) issue any Equity Equivalents senior to or pari passu in liquidation preference, redemption right, conversion rights or right of payment to with the Series B Preferred StockUnits; (bx) after make any change to the date Principal Line of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which Business conducted by the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; orand its Subsidiaries; (cxi) change enter into or amend any transactions or permit any of its Subsidiaries to enter into or amend any transactions with any Affiliate, with ▇▇▇▇▇▇▇ ▇. Cloobeck or with any family member of ▇▇▇▇▇▇▇ ▇. Cloobeck other than (i) on terms and conditions at least as favorable to the rights Company or its Subsidiaries as would be obtained through an arm’s-length negotiation with an independent party, (ii) settlement of claims made by ▇▇▇▇▇▇▇ Cloobeck; or (iii) ordinary course employment arrangements approved by the holders of the Series B Preferred Stock in any other respectBoard; provided, however, that the authorization and issuance approval of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Majority Preferred Stock Holders shall not be deemed to adversely affect the rights, preferences required for any transaction for which all or privileges substantially all of the Series B Preferred Stock amounts payable to such Affiliate are directly reimbursable by one or more homeowners’ associations or similar entities for which the Company performs management services pursuant to the Management Agreement or any holder thereof similar management services agreement; (xii) modify the Company’s business plan or diverge from the Company’s annual budget, in each case in any material respect, or change the Company’s auditors or accountants; (xiii) amend the Management Agreement in any material respect, or enter into or materially amend or permit any of its Subsidiaries to enter into or materially amend any management services agreement with any Affiliate of the Company, other than as approved by the Majority Preferred Holders as of the date hereof; (xiv) other than in connection with an Approved Company Sale or as contemplated by this Agreement, permit any Equityholder to directly or indirectly sell any Junior Securities; (xv) consummate or permit any of its Subsidiaries to consummate a reorganization or recapitalization of the Company or any of its Subsidiaries or effect any other change in the capital structure of the Company or any of its Subsidiaries; (xvi) acquire, or permit any of its Subsidiaries to acquire, any interest in any Person or business (whether by a purchase of assets, purchase of equity, merger or otherwise), or enter into any joint venture, other than as expressly contemplated by, and within the parameters established by, the annual business plan; (xvii) create, incur or assume, or permit any of its Subsidiaries to create, incur or assume, any lien or encumbrance of any kind upon the assets of the Company or any of its Subsidiaries which is not permitted under the Senior Note Indenture; (xviii) grant options or issue Equity Equivalents to any employee of the Company or any of its Subsidiaries other than pursuant to equity incentive plans approved by the Board which shall not exceed in the aggregate since the date hereof 10% of the Common Units of the Company on a fully diluted basis at the time of such Issuance; (xix) permit any of the Company’s Subsidiaries to issue any equity securities or Convertible Securities to any Person other than the Company or any of the Company’s Subsidiaries, or permit any other transaction to occur which would result in any direct or indirect Subsidiary of the Company not being a direct or indirect wholly-owned Subsidiary of the Company; (xx) file, or permit any of the Company’s Subsidiaries to file, any registration statement with the Securities and Exchange Commission with respect to the registration of an offering or sale of any equity securities that does not constitute a Qualified Public Offering; (xxi) directly or indirectly transfer, sell, assign, pledge, hypothecate, or otherwise dispose of, any warrants to purchase common stock of DRC; or (xxii) agree to do any of the foregoing. (c) For so long as the Guggenheim Common Unit Threshold is met, the Company shall comply with the following covenants, unless it has received the prior written consent of the Majority Guggenheim Holders: (i) The Company shall not, nor permit any of the Company’s Subsidiaries to, issue any debt securities to any Person other than: (A) with respect to the Subsidiaries, to the Company; (B) to third party financing sources (subject to the other provisions of Section 8(b)) who are not Affiliates of any Equityholder; (C) to the Equityholders so long as each Investor is offered an opportunity to participate in such offering as if it was an offering of Units by the Company subject to the preemptive rights of Section 7; or (D) in connection with restructuring (including increasing) existing Indebtedness of the Company and its Subsidiaries, which Indebtedness is secured by or related to assets being acquired by the Company or any Subsidiary of the Company (whether pursuant to an acquisition of assets or stock, or merger or consolidation, or whether pursuant to the provisions of the United States Bankruptcy Code or similar foreign bankruptcy regulations in connection with the bankruptcy of a non-Affiliated third party). (ii) The Company shall not permit any of its Subsidiaries to issue any equity securities or Convertible Securities, other than Excluded Units, to any Person other than the Company or any of the Company’s Subsidiaries, or permit any other transaction to occur which would result in any direct or indirect Subsidiary of the Company not being a direct or indirect wholly-owned Subsidiary of the Company; (iii) The Company shall make Tax Distributions to the holders of Units as and when required under the Series B Preferred Stock LLC Agreement (and the Company shall cause its direct and indirect Subsidiaries to make distributions sufficient to satisfy such obligation); provided, however, that, so long as the Senior Note Indenture is in effect and to the extent funded by distributions from DRC and its Subsidiaries, the aggregate Tax Distributions since the Issue Date shall not exceed the lesser of: (A) the aggregate amount since the Issue Date of the relevant tax (including any penalties and interest) that DRC would owe if it were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of DRC’s consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of DRC and such Subsidiaries from other taxable years; and (B) the aggregate amount of the relevant tax that the Equityholders actually owe to the appropriate taxing authority after the date hereof; provided, further, however, that any Tax Distributions received from the Company from funds provided by DRC and its Subsidiaries shall be paid over to the appropriate taxing authority within 30 days of receipt by the Equityholders of such Tax Distributions or refunded to the Company (which refunded amounts shall be paid to DRC); (iv) The Company shall maintain and cause each of its Subsidiaries to maintain its existence, material licenses and material permits in good standing; (v) The Company shall comply and cause each of its Subsidiaries to comply with all applicable material laws, rules and regulations and all of its material contractual obligations; (vi) The Company shall pay and cause each of its Subsidiaries to pay all required Company-level taxes as and when due and payable; (vii) Neither the Company nor any of its Subsidiaries shall become a party to any agreement which, by its terms: (1) expressly restricts the Company’s performance of this Agreement or any other respect. Transaction Document or (2) imposes any non-competition or other restrictive covenant obligation on Investor or any of their Affiliates without such Investor’s prior written consent; (viii) The Series B Preferred Stock Company shall have no preemptive rights pursuant heretomaintain and cause each of its Subsidiaries to maintain insurance (in accordance with past practice and industry standards); (ix) The Company shall hold meetings of the Board on at least a quarterly basis; or (x) agree to do any of the foregoing.

Protective Provisions. Subject to the rights of At any series of preferred stock that may from time to time come into existence, so long as when any shares of Series B Preferred Stock issued pursuant to this Agreement, including upon exercise of the Warrants, are outstanding, the Corporation Company shall not not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of Series B Preferred Stock then held by Significant Holders, if any (it shall be understood, however, that the following Protective Provisions are identical to those set forth in Subsection 3.2 of the rights and preferences of the Series B Preferred Stock set forth in Article Fourth of the Company’s Amended and Restated Certificate of Incorporation, and approval or waiver of any holder thereofof the following provisions in accordance with the Company’s Amended and Restated Certificate of Incorporation, includingwill be deemed approval or waiver of the same provision hereunder): a) authorize or incur any Indebtedness in excess of $2,000,000; b) issue or sell any convertible debt, without limitation, by creating any additional series of preferred stock (convertible or issuing shares under otherwise) or any such seriesother equity or equity-linked security at a price that values the Company’s Common Stock at a price less than the Per Share Purchase Price (as adjusted for all subsequent stock splits, stock dividends, consolidations, recapitalizations and reorganizations) other than any equity or equity linked security that is issued pursuant to any transactions approved under Subsection 4.15(k) hereof; c) increase or decrease the authorized number of shares of capital stock of the Company; d) create or issue any new class or series of shares having rights, preferences or privileges senior to the Common Stock; e) issue any shares of Series A Preferred Stock other than pursuant to the terms of that certain Amended and Restated Stockholders’ Rights Agreement, dated as of July 25, 2005, between the Company and American Stock Transfer & Trust Company; f) amend, alter, or pari passu in liquidation preferencerepeal any provision of the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company (including any filing of a certificate of designation), redemption rightthat alters or changes the voting powers, conversion preferences, or other special rights or right privileges, or restrictions of payment to the Series B Preferred Stock; g) pay or declare any dividends or make other distributions upon its shares of capital stock; h) purchase, redeem or otherwise acquire any of the Company’s equity securities (bincluding warrants, options and other rights to acquire equity securities) after other than the repurchase of equity securities pursuant to existing agreements disclosed to the Purchasers in writing prior to the date of hereof specifically referencing this Certificate of DesignationSubsection 4.15(h); i) issue any equity or equity-linked securities to any employee other than pursuant to the Company’s Approved Stock Plans, create any new debt instrument or create or increase the shares of Common Stock or other securities reserved for issuance as incentive awards to the Company’s management and other employees, directors and consultants pursuant to the Approved Stock Plans or any new or existing bank line (other any equity incentive plan or similar arrangement pursuant to arrangement, other than the increase contemplated by Section 4.14 hereof; j) liquidate, dissolve or wind-up; k) merge or consolidate with another corporation in which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock Company’s voting equity securities immediately prior to the transaction would own 50% or less of the voting securities of the surviving corporation or engage in any other respect; providedDeemed Liquidation Event (as defined in the Amended and Restated Certificate of Incorporation); l) sell, however, that the authorization and issuance of additional shares of Common Stock, and creation license or dispose of any series material assets of preferred stock (the Company, including intellectual property or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment other rights and otherwise to the Series B Preferred Stock shall not be deemed Company’s development stage, pre-clinical and/or diagnostic assets, including, without limitation, pursuant to adversely affect any license, development, commercialization, distribution, marketing, co-marketing, collaboration, partnering or other agreement, other than licenses of immaterial technology in the rights, preferences or privileges ordinary course of business on commercially reasonable terms and consistent with past practices; m) change the authorized number of directors of the Series B Preferred Company; n) amend or waive any material provision of the Amended and Restated Certificate of Incorporation or the Company’s By-Laws; o) materially change the nature of the Company’s business from that engaged in on the date hereof; p) intentionally take any action which is reasonably likely to result in (i) the Common Stock of the Company no longer being approved for quotation on the American Stock Exchange or the Nasdaq Stock Market or (ii) the Common Stock of the Company ceasing to be registered pursuant to Section 12 of the Exchange Act; or q) agree, consent or acquiesce to any amendment, supplement or other modification to, or termination of, any of its material agreements, including, without limitation any Material License Agreement or any holder thereof or change other agreement filed with the rights Commission pursuant to Item 601 of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant hereto.Regulation S-K.

Protective Provisions. Subject Except as otherwise provided herein or as required by applicable law, the holders of Series C Preferred Stock shall be entitled to vote on all matters on which the rights holders of Common Stock shall be entitled to vote, in the same manner and with the same effect as the holders of Common Stock, voting together with the holders of Common Stock as a single class. For purposes of this Section 6, the holders of Series C Preferred Stock shall be given notice of any series meeting of preferred stock that may from time stockholders as to time come into existence, so long as which the holders of Common Stock are given notice in accordance with the by-laws of the Corporation. As to any shares matter on which the holders of Series B C Preferred Stock are outstandingshall be entitled to vote in accordance with the first sentence of this Section 6(b), each holder of Series C Preferred Stock shall have a number of votes per share of Series C Preferred Stock held of record by such holder on the Corporation shall not without first obtaining record date for the approval (by meeting of stockholders, if such matter is subject to a vote at a meeting of stockholders, or on the effective date of any written consent, as provided by law) if such matter is subject to a written consent of the holders stockholders without a meeting of at least a majority of the then-outstanding shares of Series B Preferred Stockstockholders, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as equal to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares Common Stock into which such share of Series B C Preferred Stock is then convertible on such record date or any holder thereofeffective date, includingas the case may be, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respectaccordance with Section 7 hereof; provided, however, that any holder of Series C Preferred Stock shall not be entitled to cast votes for the authorization and issuance number of additional shares of Common Stock issuable upon conversion of such shares of Series C Preferred Stock held by such holder that exceeds the quotient of (x) the aggregate purchase price paid by such holder of Series C Preferred Stock for its shares of Series C Preferred Stock divided by (y) $0.65 (i.e., the closing bid price of the Common Stock on the Trading Day immediately prior to the Original Issue Date). Notwithstanding the foregoing proviso, nothing herein shall restrict (i) any holder of Series C Preferred Stock from being entitled to vote at any meeting of stockholders of the Corporation or in any action by written consent of stockholders, any shares of Series C Preferred Stock on any matter on which the holders of Series C Preferred Stock are entitled to vote as a separate class or (ii) the right of any holder of Series C Preferred Stock to vote any outstanding shares of Common Stock, and creation whether acquired upon conversion of any series of preferred stock (the Series C Preferred Stock or issuing shares under any such seriesotherwise. Notwithstanding anything in this Section 6(b) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the contrary, a holder of Series B C Preferred Stock shall not be deemed entitled to adversely affect cast a vote for the rights, preferences or privileges number of shares of Common Stock into which the shares of Series C Preferred Stock held by such holder is then convertible until (i) the issuance of such shares of Common Stock pursuant to Section 7 hereof has been approved by the stockholders of the Series B Preferred Stock or any holder thereof or change Corporation in accordance with NASDAQ Listing Rule 5635 and (ii) the rights Corporation has complied with Rule 14c-2 of the holders Securities Exchange Act of 1934, as amended, in respect of such stockholder approval (such date, the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant hereto“Trigger Date”).

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B I Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawin the DGCL) of the holders Holders of at least a majority of the then-then outstanding shares of Series B I Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B I Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series I Preferred Stock as to distribution of assets upon liquidation, dissolution or any holder thereof winding up of the Corporation ("Senior Securities") or alter or change the rights rights, preferences or privileges of any Senior Securities so as to affect adversely the Series I Preferred Stock; (c) increase the authorized number of shares of Series I Preferred Stock; or (d) do any act or thing not authorized or contemplated by this Certificate of Designation which would result in taxation of the holders Holders of shares of the Series B I Preferred Stock in under Section 305 of the Internal Revenue Code of 1986, as amended (or any other respectcomparable provision of the Internal Revenue Code of 1986, as hereafter from time to time amended). The In the event Holders of least a majority of the then outstanding shares of Series B I Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series Preferred Stock, pursuant to subsection (a) above, so as to affect the Series I Preferred Stock, then the Corporation will deliver notice of such approved change to the Holders of the Series Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have no preemptive rights the right for a period of 30 days to convert pursuant heretoto the terms of this Certificate of Designation as in effect prior to such alteration or change or to continue to hold their shares of Series I Preferred Stock. Notwithstanding anything to the contrary herein, if at any time the Corporation shall "spin-off" certain of its assets or businesses by transferring, directly or indirectly, such assets or businesses to a Subsidiary of the Corporation ("Spinco") and making a dividend (the "Spin-off Dividend") to the Corporation's stockholders of the shares of capital stock of Spinco, then prior to making the Spin-off Dividend, the Corporation shall cause Spinco to issue to each Holder that number of shares of preferred stock of Spinco with substantially identical rights, preferences, privileges, powers, restrictions and other terms as the Series I Preferred Stock equal to the number of shares of Series I Preferred Shares held by such Holder immediately prior to the Spin-off Dividend.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so long as any Once at least 1,666,667 shares of Series B Preferred Stock are issued (as adjusted for stock splits, stock dividends, recapitalizations and the like applicable to the Series B Preferred Stock), then as long as at least 500,000 shares of Series B Preferred Stock remain outstanding, the Corporation shall not (and shall cause its subsidiaries not to), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock authorize or (ii) affect adversely the shares of Series B Preferred Stock issue any new class or any holder thereof, including, without limitation, by creating any additional series of preferred capital stock, or reclassify any existing class or series of capital stock, if the effect of such action would result in a class or series of capital stock (having a preference with respect to dividends, liquidation or issuing shares under any such series) that is redemption rights senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after amend the date Corporation’s Certificate of Incorporation, bylaws or this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so Designations in a manner that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect affects the rights, preferences or and privileges of the Series B Preferred Stock Stock, or increase or decrease the total number of authorized shares of Series B Preferred Stock; (c) declare or pay any holder thereof dividend upon or change the rights redeem any of the holders capital stock of the Corporation that is junior to or pari passu with the Series B Preferred Stock as to liquidation or dividend payments; (d) sell or otherwise dispose of all or substantially all of the assets of the Corporation, merge or consolidate with any entity (except for the purpose of a change of domicile of the Corporation) or effect a transaction in which more than 50% of the voting power in the Corporation is disposed of; (e) create, incur, assume or suffer to exist any indebtedness for borrowed money (including capitalized lease financings) or issue any guarantees, or mortgage, encumber, create, incur, or suffer to exist liens related thereto, other than (a) indebtedness and liens which are permitted under Sections 8.1 and 8.2 of that certain Credit Agreement dated as of January 10, 2008, by and among the Corporation, as borrower, the lenders from time to time party thereto, the letter of credit issuers from time to time party thereto, ▇▇▇▇▇▇▇▇▇ Financial LLC, as administrative agent, and Ableco Finance LLC, as collateral agent (the “First Lien Credit Agreement”), and (b) any debt or other extensions of credit by the lenders or their affiliates under the First Lien Credit Agreement or pursuant to any extensions, amendments, modifications, or refinancings thereof; (f) create, form or invest in any other respect. The Series B Preferred Stock shall entity in which the Corporation or any subsidiary of the Corporation would have no preemptive rights pursuant heretomore than a 5% ownership interest; (g) increase the size of the Board of Directors of the Corporation; or (h) reorganize, dissolve, liquidate or otherwise wind up the Corporation.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so As long as any shares of Series B D Preferred Stock are outstandingOutstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawthe GCL) of the holders of at least a majority of the then-then outstanding shares of Series B D Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B D Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series D Preferred Stock as to distribution of assets upon liquidation, dissolution or any holder thereof winding up of the Corporation ("Senior Securities") or alter or change the rights rights, preferences or privileges of any Senior Securities so as to affect adversely the Series D Preferred Stock; (c) increase the authorized number of shares of Series D Preferred Stock; or (d) do any act or thing not authorized or contemplated by this Amendment which would result in taxation of the holders of shares of the Series D Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code as hereafter from time to time amended). In the event holders of at least a majority of the then outstanding shares of Series D Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series D Preferred Stock, pursuant to subsection (a) above, so as to affect the Series D Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of the Series B D Preferred Stock in any other respect. The Series B Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have no preemptive rights the right for a period of thirty (30) days to convert pursuant heretoto the terms of this Amendment as they exist prior to such alteration or change or continue to hold their shares of Series D Preferred Stock.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders Holders of at least a majority two-thirds (2/3) of the then-outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase alter, change, modify or amend (x) the number of authorized shares terms of the Corporation's preferred stock or (ii) affect adversely the shares of Series B Preferred Stock in any way or (y) the terms of any holder thereof, including, without limitation, by creating any additional series other capital stock of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment the Corporation so as to affect adversely the Series B Preferred Stock; (bii) after the date of this Certificate of Designation, create any new debt instrument class or create series of capital stock having a preference over or ranking pari passu with the Series B Preferred Stock as to redemption or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of the Corporation; (iii) increase the authorized number of shares of Series B Preferred Stock; (iv) re-issue any new shares of Series B Preferred Stock which have been converted or existing bank line redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or similar arrangement pursuant Senior Securities; (vi) redeem, or declare, pay or make any provision for any dividend or distribution with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to which the Company is Series B Preferred Stock as to the distribution of assets upon liquidation, dissolution or becomes indebted), so that winding up of the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregateCorporation; or (cvii) issue any Series B Preferred Stock except pursuant to the terms of the Securities Purchase Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B Preferred Stock agrees to allow the Corporation to alter or change the rights rights, preferences or privileges of the shares of Series B Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such approved change to the holders of the Series B Preferred Stock in any other respect; provided, however, that did not agree to such alteration or change (the authorization "Dissenting Holders") and issuance the Dissenting Holders shall have the right for a period of additional shares of Common Stock, and creation of any series of preferred stock thirty (or issuing shares under any 30) days following such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise delivery to convert their Preferred Shares pursuant to the Series B terms hereof as they existed prior to such alteration or change, or to continue to hold such Preferred Stock Shares. No such change shall not be deemed effective to adversely affect the rightsextent that, preferences or privileges by its terms, it applies to less than all of the Series B Holders of Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretoShares then outstanding.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so (a) So long as any shares of Series B AA Preferred Stock are outstanding, the Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) the General Corporation Law of Delaware of the holders Holders of at least a majority of the then-then outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of Series B AA Preferred Stock alter or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B AA Preferred Stock or any holder thereof Senior Securities so as to affect adversely the Series AA Preferred Stock. In the event Holders of at least a majority of the then outstanding shares of Series AA Preferred Stock agree to allow the Corporation to alter or change the rights rights, preferences or privileges of the holders shares of Series AA Preferred Stock, pursuant to subsection (a) above, so as to affect adversely the Series AA Preferred Stock, then the Corporation will mail notice of such approved alteration or change to the Holders of the Series B AA Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and the Dissenting Holders shall have the right for a period of thirty (30) days immediately following the date the notice was mailed to convert pursuant to the terms of this resolution of Designation as they exist prior to such alteration or change or continue to hold their shares of Series AA Preferred Stock subject to the approved alteration or change of the rights, preferences or privileges of the Series AA Preferred Stock. (b) If at any time or times the Corporation shall issue shares of Series AA Preferred Stock not designated herein or Series A Redeemable preferred stock not issued and outstanding as of the date hereof, each Holder (i.e., holder of Series AA Preferred Stock) shall be entitled to receive additional shares of Series AA Preferred Stock in any other respectan amount determined by the following formula: multiply the number of shares of Series AA Preferred Stock of the Holder immediately prior to the new issuance by the number of shares of Series A and/or Series AA Preferred Stock to be issued and divide the result by the aggregate number of shares of Series A and Series AA Preferred Stock issued and outstanding immediately prior to the new issuance. The rights provided for in this Section 7(b) shall not apply to any shares for which the Series B AA Preferred Stock shall has been converted or any shares which have no preemptive rights pursuant heretobeen redeemed.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B A Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawthe DGCL) of the holders of at least a majority of the then-then outstanding shares of Series B A Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B A Preferred Stock or any holder thereof Senior Securities so as to affect adversely the Series A Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article II hereof, "Senior Securities"); (c) create any new class or series of capital stock ranking pari passu with the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article II hereof, APari Passu Securities@); or (d) increase the authorized number of shares of Series A Preferred Stock. In the event holders of at least a majority of the then outstanding shares of Series A Preferred Stock agree to allow the Corporation to alter or change the rights rights, preferences or privileges of the shares of Series A Preferred Stock, pursuant to subsection (a) above, so as to affect the Series A Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of the Series B A Preferred Stock in any other respect. The Series B Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have no preemptive rights the right for a period of thirty (30) days to convert pursuant heretoto the terms of this Certificate of Designation as they exist prior to such alteration or change or continue to hold their shares of Series A Preferred Stock.

Protective Provisions. Subject Prior to the rights occurrence of any series a Consolidation Triggering Event (as that term is defined in Part B of preferred stock that may from time to time come into existenceArticle IV of the SunPower’s Restated Certificate of Incorporation), so long as any shares of Series B Preferred Stock are outstanding, the Corporation SunPower shall not take the following actions without first obtaining the approval (by written consent or affirmative vote or written consent, as provided by law) of the holders of members representing at least a majority 75% of the then-outstanding shares authorized number of Series B Preferred Stock, voting separately as a seriesthe members of SunPower’s Board of Directors: (a) amend its Certificate approve SunPower’s AOP prior to the beginning of Incorporation the applicable fiscal year or, after approval of an AOP in accordance with this Article III, effect any changes thereto (including changes involving one or more related transactions) which result or would reasonably be expected to result in an issuance in any individual case or in the filing aggregate of a Certificate more than 1% of Designations) so as to (i) increase the number of authorized fully diluted shares of the Corporation's preferred capital stock of SunPower or (ii) affect adversely the shares a negative impact to SunPower’s cash flow of Series B Preferred Stock $2,000,000 or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stockmore; (b) after undertake any transaction or series of related transactions which results or would reasonably be expected to result individually or in the date aggregate in SunPower issuing shares of the capital stock of SunPower or securities convertible into, or exercisable for, shares of the capital stock of SunPower in an amount equal to or greater than four percent (4%) of the then outstanding shares of capital stock of SunPower unless provided for in SunPower’s then-current AOP approved in accordance with this Certificate Article III; (c) undertake any transaction or series of Designationrelated transactions whereby SunPower pays, create any new debt instrument incurs or create accrues or increase any new would reasonably be expected to pay, incur or existing bank line accrue a liability equal to or in excess of the fair market value (or similar arrangement pursuant based upon the closing price of the Class A Common Stock reported for the business day immediately prior to which the consummation of such transaction or, if the Class A Common Stock is not traded in a public market, the Board of Directors shall determine fair market value of SunPower in its good faith judgment) of four percent (4%) of the then outstanding shares of capital stock of the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 unless provided for in the aggregateSunPower’s then-current AOP approved in accordance with this Article III; or (cd) change enter into an exclusive license (other than an exclusive license the rights exclusivity of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that which is junior in right of payment upon liquidation, redemption, conversion and payment limited to exclusive distribution rights and which is entered into in the ordinary course of business consistent with past practice) or sell, convey or otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges transfer any intellectual property of the Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock SunPower (unless such transaction was included in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretoSunPower’s then-current AOP approved in accordance with this Article III).

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B C-2 Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders Holders of at least a majority two-thirds (2/3) of the then-outstanding shares of Series B C-2 Preferred Stock, voting separately as a series: (ai) alter, change, modify or amend its Certificate (x) the terms of Incorporation the Series C-2 Preferred Stock in any way or (including y) the filing terms of a Certificate any other capital stock of Designations) the Corporation so as to (i) increase the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B C-2 Preferred Stock; (bii) after the date of this Certificate of Designation, create any new debt instrument class or create series of capital stock having a preference over or ranking pari passu with the Series C-2 Preferred Stock as to redemption or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of the Corporation; (iii) increase the authorized number of shares of Series C-2 Preferred Stock; (iv) re-issue any new shares of Series C-2 Preferred Stock which have been converted or existing bank line redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or similar arrangement pursuant Senior Securities; (vi) redeem, or declare, pay or make any provision for any dividend or distribution with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to which the Company is Series C-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or becomes indebted), so that winding up of the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregateCorporation; or (cvii) change issue any Series C-2 Preferred Stock except pursuant to the rights terms of the holders Securities Purchase Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B C-2 Preferred Stock in any other respect; provided, however, that agrees to allow the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (Corporation to alter or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect change the rights, preferences or privileges of the shares of Series B C-2 Preferred Stock or any holder thereof or pursuant to the terms hereof, then the Corporation will deliver notice of such approved change the rights of to the holders of the Series B C-2 Preferred Stock in any other respect. The Series B Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have no preemptive rights the right for a period of thirty (30) days following such delivery to convert their Preferred Shares pursuant heretoto the terms hereof as they existed prior to such alteration or change, or to continue to hold such Preferred Shares. No such change shall be effective to the extent that, by its terms, it applies to less than all of the Holders of Preferred Shares then outstanding.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of Series B A Preferred Stock are outstanding, the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawthe CO-CORP LAW) of the holders of at least a majority of the then-then outstanding shares of Series B A Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock : alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B A Preferred Stock or any holder thereof capital stock of the Corporation so as to affect adversely the Series A Preferred Stock; create any new class or series of capital stock having a preference over the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article II hereof, "Senior Securities"); create any new class or series of capital stock ranking pari passu with the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article II hereof, "Pari Passu Securities"); increase the authorized number of shares of Series A Preferred Stock; issue any Senior Securities or Pari Passu Securities; increase the par value of the Common Stock, or do any act or thing not authorized or contemplated by this Certificate of Designation which would result in taxation of the holders of shares of the Series A Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code as hereafter from time to time amended). In the event holders of at least a majority of the then outstanding shares of Series A Preferred Stock agree to allow the Corporation to alter or change the rights rights, preferences or privileges of the shares of Series A Preferred Stock, pursuant to subsection (a) above, so as to affect the Series A Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of the Series B A Preferred Stock in any other respect. The Series B Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have no preemptive rights pursuant heretothe right of Dissenting Stockholders under the NVGCL to petition for the payment of the fair value of their shares as it exists prior to such alteration or change or continue to hold their shares of Series A Preferred Stock.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, For so long as any at least 9,500 shares of Series B G Preferred Stock, Series I Preferred Stock, Series J Preferred Stock, Series K Preferred Stock, Series L Preferred Stock are and Series M Preferred Stock collectively remain outstanding, the Corporation shall not without first obtaining the approval (by affirmative vote or written consent, as provided by law) consent of the holders of at least a majority two-thirds (2/3) of the then-issued and outstanding shares of Series B G Preferred Stock, Series I Preferred Stock, Series J Preferred Stock, Series K Preferred Stock, Series L Preferred Stock and Series M Preferred Stock, voting separately together as a series:single class and on an as converted to Common Stock basis, shall be required to take any of the following actions (including by way of merger, consolidation or otherwise): (ai) amend its Certificate designate, authorize, create, issue, sell, redeem or repurchase any class or series of Incorporation equity securities or equity-backed securities of the Company or any subsidiary thereof, including without limitation, capital stock (including the filing any shares of treasury stock) or rights, options, warrants or other securities convertible into or exercisable or exchangeable for capital stock or any debt security which by its terms is convertible into or exchangeable for any equity security or has any other equity feature or any security that is a Certificate combination of Designations) so as debt and equity (collectively, "Equity Securities"), other than pursuant to (i) employee stock option and similar incentive plans approved by the Board of Directors, (ii) the issuance of Common Stock upon the conversion of the 7.5% Convertible Subordinated Notes due 2007 of Allied Riser Communications Corporation (the "Notes") in accordance with the terms thereof or the issuance of additional convertible debt or equity as a paid-in-kind interest payment on the Notes in accordance with the terms thereof approved by the Board of Directors or (iii) a conversion or exchange right set forth in Company's certificate of incorporation; (ii) except as otherwise expressly provided as of the date hereof in the Company's certificate of incorporation or in a certificate of designations thereto, declare or pay any dividends or make any distributions of any kind with respect to any outstanding Equity Securities of the Company or any subsidiary thereof; (iii) approve the merger, consolidation, dissolution or liquidation of the Company or any subsidiary thereof, or any transaction having the same effect; (iv) increase or decrease the aggregate number of authorized shares of the Corporation's preferred stock Common Stock or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred StockCompany; (bv) after sell all or substantially all of the date assets of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted)and its subsidiaries taken as a whole, so that whether directly through a sale of the Company's total indebtedness pursuant to such instrumentsinterests in its subsidiaries or other assets, lines or arrangements exceeds $105,000,000 indirectly through a sale of the assets of its subsidiaries, in one transaction or any series of transactions, or approve any transaction or series of transactions having the same effect; (vi) cause, directly or indirectly, a material change in the aggregatenature of the business or strategic direction of the Company and its subsidiaries, taken as a whole; (vii) approve the filing for bankruptcy of or any decision not to take action to prevent a filing for bankruptcy or not to oppose an involuntary filing for bankruptcy or other winding up of the Company or any subsidiary thereof; (viii) approve the establishment and maintenance of an Executive Committee of the Board of Directors or increase or decrease the number of directors composing the Board of Directors; or (cix) change the rights amend, repeal or modify any provision of the holders Company's certificate of the Series B Preferred Stock incorporation in any other respect; provided, however, a manner that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect affects the rights, powers or preferences or privileges of the Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretoStock.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so So long as any shares of the Series B Preferred Stock are remains outstanding, the Corporation Company shall not not, without first obtaining the approval (by vote or written consent, as provided by law) of the consent from holders of at least a majority of the then-outstanding shares of Series B Preferred Stock, voting separately including XL (the “Series B Majority”), take any of the actions described requiring the approval of the Series A Preferred Director pursuant to the Current Charter, as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so well as to (i) increase the number of authorized shares of the Corporation's preferred stock adversely and disproportionately alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B Preferred Stock Stock, (ii) amend or waive any holder thereof provision of the Company’s Certificate of Incorporation or By-laws in a manner that would adversely and disproportionately alter or change the rights of the holders rights, preferences or privileges of the Series B Preferred Stock in any other respect. The Stock, or (iii) increase or decrease the authorized number of shares of Series B Preferred Stock. It is understood that the creation of a senior to or pari passu series or class of stock shall not, by itself, trigger clauses (i) or (ii); nor shall the proportional differences in the amounts of respective issue prices, liquidation preferences, and conversion prices arising out of differences in the original issue price vis-à-vis other series or class of stock. The Company’s charter will provide that, except as provided by law and indicated above, each series of Preferred Stock will vote together with all other series of Preferred Stock on all matters, and not as a separate series or class. Drag-Along: In connection with any Deemed Liquidation Event, all of the Company’s stockholders shall have no preemptive rights pursuant heretovote for any such Deemed Liquidation Event approved by (i) the Board; (ii) the approval of the holders of a majority of the Common Stock; and (iii) the holders of a majority of the Preferred Stock, which shall include XL for so long as it holds Preferred Stock, voting together as a separate class. The Company’s equity incentive plan will contain provisions binding all optionees to this provision.

Protective Provisions. Subject In addition to the any voting rights of any series of preferred stock that may from time to time come into existencespecifically required by applicable law, so long as any shares of Series B Preferred Stock are issued and outstanding, the Corporation shall will not (including by means of merger, consolidation, share exchange or otherwise), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then-issued and outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase the number of authorized shares of the Corporation's preferred stock alter or (ii) affect adversely the shares of Series B Preferred Stock or any holder thereof, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights rights, preferences, privileges or restrictions provided for the benefit of the holders of the Series B Preferred Stock in any other respect; provided, however, that so as to affect them adversely (including the authorization and issuance of additional shares of Common Stock, and creation of any new class or series of preferred capital stock (ranking pari passu with or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise senior to the Series B Preferred Stock shall not be deemed as to adversely affect dividend rights and rights on liquidation, winding up and dissolution of the rightsCorporation), (b) decrease the authorized number of shares of Series B Preferred Stock to below the number of shares then outstanding, preferences or (c) enter into any agreement that provides for a merger, consolidation, or privileges share exchange, or engage in any other similar transaction (including the sale, lease or exchange of all or substantially all of the assets of the Corporation), unless (i) the Series B Preferred Stock remains outstanding, or any holder thereof (ii) the Series B Preferred Stock is changed in such transaction into a class or series of preferred stock or similar security of the surviving corporation such that the surviving corporation could effect the change without requiring a vote of the rights holders of Series B Preferred Stock if such change were effected by amendment of the Certificate of Incorporation, or (iii) the holders of the Series B Preferred Stock in any other respect. The are entitled to receive, as consideration for the extinguishment or exchange of their shares of Series B Preferred Stock shall in such transaction, the same consideration that such holders would have no preemptive rights received in such transaction if their Series B Preferred Stock were converted into Common Stock at the then-current Conversion Rate immediately prior to such transaction; provided, that the holders of the Series B Preferred Stock may elect to convert such shares of Series B Preferred Stock to Common Stock pursuant heretoto Section 6 if such transaction constitutes a Change in Control.

Protective Provisions. Subject to the rights of any series of preferred stock that may from time to time come into existence, so (a) So long as any shares of Series B Preferred Stock are outstanding, the Corporation this corporation shall not not, without first obtaining the approval (by vote or written consent), as provided by law) of the holders of at least a majority 66 2/3% of the thenthen outstanding shares of Series B Preferred Stock: (i) amend the corporation's Articles of Incorporation to, or otherwise, alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock so as to affect adversely such shares; (ii) authorize or issue, or obligate itself to issue, any other equity security, including any other security convertible into or exercisable for any equity security having a preference over, or being on a parity with, the Series B Preferred Stock with respect to redemption, dividends or liquidation payments; or (iii) redeem or purchase or otherwise acquire shares of any class of stock of this corporation, directly or indirectly, other than (A) redemptions of Series B Preferred Stock pursuant to the provisions of Section 1.6 or (B) repurchases of options or capital stock issued upon exercise of options from employees, officers, directors or consultants; (in addition, if at any time there shall be either (A) accrued and unpaid dividends on any shares of Series B Preferred Stock then outstanding or (B) any redemption required by Section 1.6 to be made of shares of Series B Preferred Stock then outstanding which has not been made, no dividends whatsoever of any kind may be paid upon, nor may any distribution of any kind be made upon any share of any class of stock of this corporation other than the Series B Preferred Stock). (b) If this corporation shall in any manner sub-divide (by stock- split, stock dividend or otherwise) or combine (by reverse stock-split or otherwise) the outstanding shares of Series B Preferred Stock, voting separately as a series: (a) amend its Certificate of Incorporation (including the filing of a Certificate of Designations) so as to (i) increase liquidation payment per share, the redemption price per share and the number of authorized shares of the Corporation's preferred stock or (ii) affect adversely the shares of required to be redeemed on any mandatory Series B Preferred Stock Redemption Date shall be proportionately reduced or any holder thereofincreased, including, without limitation, by creating any additional series of preferred stock (or issuing shares under any such series) that is senior or pari passu in liquidation preference, redemption right, conversion rights or right of payment to as the Series B Preferred Stock; (b) after the date of this Certificate of Designation, create any new debt instrument or create or increase any new or existing bank line (or similar arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements exceeds $105,000,000 in the aggregate; or (c) change the rights of the holders of the Series B Preferred Stock in any other respect; provided, however, that the authorization and issuance of additional shares of Common Stock, and creation of any series of preferred stock (or issuing shares under any such series) that is junior in right of payment upon liquidation, redemption, conversion and payment rights and otherwise to the Series B Preferred Stock shall not be deemed to adversely affect the rights, preferences or privileges of the Series B Preferred Stock or any holder thereof or change the rights of the holders of the Series B Preferred Stock in any other respect. The Series B Preferred Stock shall have no preemptive rights pursuant heretocase may be.