Common use of Protective Provisions Clause in Contracts

Protective Provisions. So long as shares of Series B-2 Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval of the Holders of at least two-thirds (2/3) of outstanding shares of Series B-2 Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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. So 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-2 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 twoa majority of the then-thirds (2/3) of outstanding shares of Series B-2 B Preferred Stock, voting separately as a series: (ia) alter, change, modify or amend its Certificate of Incorporation (xincluding the filing of a Certificate of Designations) the terms of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of 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-2 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; (iib) after the date of this Certificate of Designation, create any new class debt instrument or series of capital stock having a preference over create or ranking pari passu with increase any new or existing bank line (or similar arrangement pursuant to which the Series B-2 Preferred Stock as Company is or becomes indebted), so that the Company's total indebtedness pursuant to redemption such instruments, lines or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of arrangements exceeds $105,000,000 in the Corporation; (iii) increase the authorized number of shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporationaggregate; or (viic) issue any change the rights of the holders of the Series B-2 B Preferred Stock except pursuant 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 terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 B Preferred Stock agrees shall not be deemed to allow the Corporation to alter or change adversely affect the rights, preferences or privileges of the shares of Series B-2 B Preferred Stock pursuant to or any holder thereof or change the terms hereof, then the Corporation will deliver notice rights of such approved change to the holders of the Series B-2 B Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and ------------------ the Dissenting Holders in any other respect. The Series B Preferred Stock shall have the right for a period of thirty (30) days following such delivery to convert their Preferred Shares no preemptive rights pursuant to 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 outstandinghereto.

Protective Provisions. So long as shares of Series B-2 A Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the GCL) of the Holders of at least two-thirds (2/3) a majority of the then outstanding shares of Series B-2 A Preferred Stock: (ia) alteralter or change the rights, change, modify preferences or amend (x) the terms privileges of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 A Preferred Stock; (iib) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 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 shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the CorporationCorporation ("Senior Securities") or alter or change the 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 (viid) issue 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 B-2 A Preferred Stock except pursuant to the terms under Section 305 of the Exchange AgreementInternal 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 that the Holders of at least two-thirds a majority of the then outstanding shares of Series B-2 A Preferred Stock agrees agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 A Preferred Stock Stock, pursuant to subsection (a) above, so as to affect the terms hereofSeries A Preferred Stock, then the Corporation will deliver notice of such approved change to the holders Holders of the Series B-2 A 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 following such delivery to convert their Preferred Shares pursuant to the terms hereof of this Amendment as they existed exist prior to such alteration or change, change or to continue to hold such their shares of Series A 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 outstandingStock.

Protective Provisions. So a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series B-2 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 holders of a majority of the Holders of at least two-thirds (2/3) of then outstanding shares of Series B-2 B Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 B Preferred Stock pursuant to the terms hereofStock, then the Corporation will deliver notice of such approved change to in a manner that adversely affects the holders of shares of the Series B-2 B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock that did 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 agree to such alteration without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change 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 "Dissenting Holders") and ------------------ the Dissenting Holders shall have the right for a period authorized number of thirty (30) days following such delivery to convert their shares of Series M Preferred Shares pursuant Stock. c. Subject to the terms hereof rights of series of Preferred Stock which may from time to time come into existence, so long as they existed prior to such alteration shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or changewritten consent, or to continue to hold such Preferred Shares. No such change shall be effective to the extent that, as provided by its terms, it applies to less than all law) of holders of a majority of the Holders then outstanding shares of Series C Preferred Shares then outstandingStock: (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.

Protective Provisions. So 7.1 For so long as shares of any Series B-2 D Preferred Stock Shares are outstanding, the Corporation shall not, without first obtaining the approval of the Holders of (at least two-thirds (2/3a meeting duly called or by written consent, as provided by law) of outstanding a Simple Majority: (a) Increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series B-2 Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B-2 D Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or 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; (iiib) Adopt or authorize any new designation of any Preferred Stock or amend the Certificate of Incorporation of the Corporation in a manner which (i) provides any holder of Common Stock or Preferred Stock any rights upon a liquidation of the Corporation which are prior and superior to those of the Holders of the Series D Preferred Stock as set forth herein; or (ii) adversely affect the rights, preferences and privileges of the Series D Preferred Stock (provided that no (1) increase in the authorized number of authorized shares of Common Stock or Preferred Stock of the Corporation; or (2) designation of a new series of preferred stock of the Corporation which has rights junior or pari passu (except in the event of a Liquidation Event, in which case the rights of the Series D Preferred Stock shall be senior to all Junior Securities, and junior to the Series D Preferred Stock) to the Series D Preferred Stock shall be deemed to adversely affect the rights, preferences and privileges of the Series D Preferred Stock); (c) Issue any Preferred Stock, other than the Original Series D Shares; (d) Effect an exchange, or create a right of exchange, cancel, or create a right to cancel, of all or any part of the shares of another class of shares into shares of Series B-2 D Preferred Stock; (ive) re-issue any Issue more than 500,000 shares of Series B-2 Preferred Common Stock which have been converted (as adjusted equitably pursuant to Section 4 hereof), including in such number, securities exercisable for or redeemed in accordance convertible into shares of Common Stock, but not including any Convertible Securities outstanding on the Original Issue Date or Common Stock issuable upon any exercise or conversion of Convertible Securities outstanding on the Original Issue Date, to the extent the terms thereof are not amended after the Original Issue Date, except with the terms hereofwritten approval of the Seller; (vf) issue repurchase, redeem or acquire any Pari Passu Securities capital stock or Senior Securitiesother equity securities of the Corporation or any of its subsidiaries, except for transactions between wholly-owned subsidiaries of the Corporation or as permitted under employee benefit plans; (vig) redeem, or declare, pay or make increase the number of members of the Board of Directors of the Corporation to more than five (5); (h) enter into any provision for any dividend or distribution agreement with respect to, or effect, any merger, consolidation, recapitalization, reclassification, stock split, combination, or other change of control transaction (including through the Common Stock sale of all or any other capital stock substantially all assets or a majority of the equity interests) of the Corporation ranking junior to the Series B-2 Preferred Stock as to the distribution or any of assets upon its subsidiaries; (i) adopt any plan of complete or partial liquidation, dissolution dissolution, or winding up of the Corporation; orCorporation or any of its subsidiaries; (viij) increase or decrease the size of the Board of Directors, board of managers or similar governing body of the Corporation or any of its subsidiaries (including any committee or subcommittee thereof); (k) change the line of business or materially change the nature of the business or operations of the Corporation and its subsidiaries; (l) enter into any agreement with respect to, or effect, any acquisition, divestiture or disposition of assets, properties, or equity interests in excess of $50,000 during any fiscal year, whether in a single transaction or in a series of related transactions, excluding the transactions contemplated by the Asset Purchase Agreement; (m) adopt any shareholder rights plan, “poison pill” or similar arrangement; (n) authorize, or make any commitment with respect to, any single capital expenditure that is in excess of $50,000, other than capital expenditures in accordance with a budget then in effect (a copy of which has been, or will have been, provided to all of the directors then-serving on the Board); (o) incur any indebtedness for borrowed money, or issue any Series B-2 Preferred Stock except pursuant to debt securities or assume, guarantee or endorse any such indebtedness, in each case having an aggregate principal amount in excess of $10,000 individually, or $250,000 in aggregate, and other than in the terms ordinary course of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter business; (p) Alter or change the rights, preferences or privileges of the shares of Series B-2 D Preferred Stock pursuant so as to affect adversely the terms hereof, then the Corporation will deliver notice shares of such approved change series; (q) Issue any shares of Series D Preferred Stock, other than the Original Series D Shares; or (r) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to the holders do any of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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 outstandingforegoing.

Protective Provisions. So In addition to any other rights provided by law, so long as shares at least one share of Series B-2 C Preferred Stock are is outstanding, the Corporation shall not, without first obtaining the approval affirmative vote or written consent of the Holders holders of at least two-thirds (2/3) not less than a majority of the outstanding shares of the Series B-2 C Preferred StockStock voting together as a single class: (ia) alteramend or repeal any provision of the Corporation’s Articles of Incorporation, changeBylaws or this Certificate of Designation if such action would materially and adversely alter or change the preferences, modify rights, privileges or amend powers of, or the restrictions provided for the benefit of, the Series C Preferred Stock; (xb) increase or decrease (other than by conversion) the terms total number of the authorized shares of Series B-2 C Preferred Stock in Stock; (c) create or issue any way series or (y) the terms of class, reclassify any other authorized capital stock of the Corporation so as to affect adversely into stock of any series or class, increase the Series B-2 Preferred Stock; (ii) create authorized or issued amount of any new 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 having a preference over of any class or ranking pari passu with series, that ranks prior to the Series B-2 C Preferred Stock as to redemption dividends 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets rights upon liquidation, dissolution or winding up 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 Common Stock (as determined in good faith by the Board of Directors of the Corporation; or) at such issuance or deemed issuance other 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; (viie) issue any Series B-2 Preferred Convertible Securities with respect to which the Effective Price is less than the fair market value of the Common Stock except pursuant (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 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 terms Corporation upon exercise or conversion of the Exchange Agreement. In the event such Convertible Securities (assuming that the Holders full amount of at least two-thirds of securities issuable upon exercise or conversion are issued), plus (z) the outstanding shares of Series B-2 Preferred Stock agrees minimum consideration, if any, payable to allow the Corporation to alter upon exercise or change the rights, preferences conversion of any Convertible Securities issuable upon exercise or privileges of the shares of Series B-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice conversion of such approved change to Convertible Securities, by: (2) the holders maximum number of Common Stock (other than Common Stock issued for the Series B-2 Preferred Stock that did not agree to purposes set forth in Sections 8(d)(1) or (2) above) issuable upon exercise or conversion of such alteration Convertible Securities or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have the right for a period of thirty (30) days following any Convertible Securities issuable upon exercise or conversion of such delivery to convert their Preferred Shares pursuant to 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.Convertible Securities; or

Protective Provisions. So long as shares of Series B-2 A Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the DGCL) of the Holders holders of at least two-thirds (2/3) a majority of the then outstanding shares of Series B-2 A Preferred Stock: (ia) alteralter or change the rights, change, modify preferences or amend (x) the terms privileges of the Series B-2 A Preferred Stock in or any way or (y) the terms of any other capital stock of the Corporation Senior Securities so as to affect adversely the Series B-2 A Preferred Stock; (iib) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 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 shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the CorporationCorporation (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 (viid) issue any increase the authorized number of shares of Series B-2 A Preferred Stock except pursuant to the terms of the Exchange AgreementStock. In the event that the Holders holders of at least two-thirds a majority of the then outstanding shares of Series B-2 A Preferred Stock agrees agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 A Preferred Stock Stock, pursuant to subsection (a) above, so as to affect the terms hereofSeries A Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 A 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 following such delivery to convert their Preferred Shares pursuant to the terms hereof of this Certificate of Designation as they existed exist prior to such alteration or change, change or to continue to hold such their shares of Series A 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 outstandingStock.

Protective Provisions. So long as At any time when any shares of Series B-2 B Preferred Stock issued pursuant to this Agreement, including upon exercise of the Warrants, are outstanding, the Corporation Company shall not, without first obtaining the approval (by vote or written consent, as provided by law) of the Holders holders of at least two-thirds (2/3) a majority of outstanding the shares of Series B-2 Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B-2 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 any way 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 (y) the terms waiver of any of the following provisions in accordance with the Company’s Amended and Restated Certificate of Incorporation, will 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, preferred stock (convertible or otherwise) or any other 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 Corporation so as to affect adversely the Series B-2 Preferred StockCompany; (iid) create or issue any new class or series of capital stock shares having a preference over rights, preferences or ranking pari passu with privileges senior to 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 Common Stock; (ive) re-issue any shares of Series B-2 A Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except than pursuant to the terms of that certain Amended and Restated Stockholders’ Rights Agreement, dated as of July 25, 2005, between the Exchange Agreement. In the event that the Holders of at least two-thirds Company and American Stock Transfer & Trust Company; f) amend, alter, or repeal any provision of the outstanding Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company (including any filing of a certificate of designation), that alters or changes the voting powers, preferences, or other special rights or privileges, or restrictions of the Series B Preferred Stock; g) pay or declare any dividends or make other distributions upon its shares of Series B-2 Preferred capital stock; h) purchase, redeem or otherwise acquire any of the Company’s equity securities (including warrants, options and other rights to acquire equity securities) other than the repurchase of equity securities pursuant to existing agreements disclosed to the Purchasers in writing prior to the date hereof specifically referencing this Subsection 4.15(h); i) issue any equity or equity-linked securities to any employee other than pursuant to the Company’s Approved Stock agrees to allow the Corporation to alter Plans, or change the rights, preferences or privileges of increase the shares of Series B-2 Preferred 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 terms Approved Stock Plans or any other any equity incentive plan or similar arrangement, other than the increase contemplated by Section 4.14 hereof; j) liquidate, then the Corporation will deliver notice of such approved change to dissolve or wind-up; k) merge or consolidate with another corporation in which the holders of the Series B-2 Preferred Stock that did not agree Company’s voting equity securities immediately prior to such alteration the transaction would own 50% or change less of the voting securities of the surviving corporation or engage in any other Deemed Liquidation Event (as defined in the "Dissenting Holders"Amended and Restated Certificate of Incorporation); l) and ------------------ sell, license or dispose of any material assets of the Dissenting Holders shall have Company, including intellectual property or other rights to the right for a period of thirty (30) days following such delivery to convert their Preferred Shares Company’s development stage, pre-clinical and/or diagnostic assets, including, without limitation, pursuant to any license, development, commercialization, distribution, marketing, co-marketing, collaboration, partnering or other agreement, other than licenses of immaterial technology in the ordinary course of business on commercially reasonable terms hereof as they existed prior and consistent with past practices; m) change the authorized number of directors of the 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 such alteration result in (i) the Common Stock of the Company no longer being approved for quotation on the American Stock Exchange or changethe 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 other agreement filed with the Commission pursuant 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 Item 601 of the Holders of Preferred Shares then outstanding.Regulation S-K.

Protective Provisions. So long 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 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 meeting of stockholders as to which the holders of Common Stock are given notice in accordance with the by-laws of the Corporation. As to any matter on which the holders of Series C Preferred Stock shall 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 record date for the 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, if such matter is subject to a written consent of the stockholders without a meeting of stockholders, equal to the number of shares of Common Stock into which such share of Series C Preferred Stock is then convertible on such record date or effective date, as the case may be, in accordance with Section 7 hereof; provided, however, that any holder of Series C Preferred Stock shall not be entitled to cast votes for the number of shares of Common Stock issuable upon conversion of such shares of Series B-2 C Preferred Stock are outstanding, held by such holder that exceeds the Corporation shall not, without first obtaining the approval quotient of the Holders of at least two-thirds (2/3) of outstanding shares of Series B-2 Preferred Stock: (i) alter, change, modify or amend (x) the terms 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, whether acquired upon conversion of the Series B-2 C Preferred Stock or otherwise. Notwithstanding anything in any way or (ythis Section 6(b) to the terms contrary, a holder of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 C Preferred Stock as shall not be entitled to redemption or distribution of assets upon cast a Liquidation Event or any other liquidation, dissolution or winding up of vote for the Corporation; (iii) increase the authorized number of shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of into which the shares of Series B-2 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 terms hereof, then stockholders of the Corporation will deliver notice in accordance with NASDAQ Listing Rule 5635 and (ii) the Corporation has complied with Rule 14c-2 of the Securities Exchange Act of 1934, as amended, in respect of such approved change to stockholder approval (such date, the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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“Trigger Date”).

Protective Provisions. So As long as shares of Series B-2 D Preferred Stock are outstandingOutstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the GCL) of the Holders holders of at least two-thirds (2/3) a majority of the then outstanding shares of Series B-2 D Preferred Stock: (ia) alteralter or change the rights, change, modify preferences or amend (x) the terms privileges of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 D Preferred Stock; (iib) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 D 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the CorporationCorporation ("Senior Securities") or alter or change the 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 (viid) issue 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 B-2 D Preferred Stock except pursuant to the terms under Section 305 of the Exchange AgreementInternal 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 that the Holders holders of at least two-thirds a majority of the then outstanding shares of Series B-2 D Preferred Stock agrees agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 D Preferred Stock Stock, pursuant to subsection (a) above, so as to affect the terms hereofSeries D Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 D 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 following such delivery to convert their Preferred Shares pursuant to the terms hereof of this Amendment as they existed exist prior to such alteration or change, change or to continue to hold such their shares of Series D 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 outstandingStock.

Protective Provisions. So long as shares of Series B-2 I Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided in the DGCL) of the Holders of at least two-thirds (2/3) a majority of the then outstanding shares of Series B-2 I Preferred Stock: (ia) alteralter or change the rights, change, modify preferences or amend (x) the terms privileges of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 I Preferred Stock; (iib) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 I 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the CorporationCorporation ("Senior Securities") or alter or change the 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 (viid) issue 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 B-2 I Preferred Stock except pursuant to the terms under Section 305 of the Exchange AgreementInternal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code of 1986, as hereafter from time to time amended). In the event that the Holders of at least two-thirds a majority of the then outstanding shares of Series B-2 I Preferred Stock agrees agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 Preferred Stock Stock, pursuant to subsection (a) above, so as to affect the terms hereofSeries I Preferred Stock, then the Corporation will deliver notice of such approved change to the holders Holders of the Series B-2 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) 30 days following such delivery to convert their Preferred Shares pursuant to the terms hereof of this Certificate of Designation as they existed in effect prior to such alteration or change, change or to continue to hold such their shares of Series I Preferred SharesStock. No such change shall be effective Notwithstanding anything to the extent thatcontrary herein, if at any time the Corporation shall "spin-off" certain of its assets or businesses by its termstransferring, it applies directly or indirectly, such assets or businesses to less than all a Subsidiary of the Holders 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 then outstandingheld by such Holder immediately prior to the Spin-off Dividend.

Protective Provisions. So long as shares of Series B-2 B Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval of the Holders of at least two-thirds (2/3) of outstanding shares of Series B-2 B Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B-2 B Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 B Preferred Stock; (ii) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 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-2 B Preferred Stock; (iv) re-issue any shares of Series B-2 B Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 B Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 B Preferred Stock except pursuant to the terms of the Exchange Securities Purchase Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 B Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 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-2 B 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 following such delivery to convert their Preferred Shares pursuant to 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. (A) So long as shares of Series B-2 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 B-2 A Preferred Stock: (i) , alter, change, modify or amend (x) the terms of the Series B-2 A Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 A Preferred Stock;; and (iiB) 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: (i) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 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; (iiiii) increase the authorized number of shares of Series B-2 A Preferred Stock; (iviii) re-issue any shares of Series B-2 A Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (viv) issue any Pari Passu Securities or Senior SecuritiesSecurities (other than debt securities which may be convertible into or exchangeable for Common Stock or any other equity or convertible security of the Corporation junior to the Series A Preferred Stock); (viv) 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 distribution otherwise with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to the Series B-2 A Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; provided, however, that the Corporation may repurchase shares of Common Stock as long as (i) such repurchase is offered to all of the Corporation's shareholders (on a pro rata basis or otherwise) and (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 (viivi) issue any Series B-2 A Preferred Stock except pursuant to the terms of the Exchange Securities Purchase Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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. So (a) For so long as shares 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 result of Series B-2 partial redemptions of the Preferred Stock are outstandingUnits by the Company from the Investors), the Corporation shall notCompany shall, without first obtaining unless it has received the approval prior written waiver of the Holders of at least two-thirds (2/3) of outstanding shares of Series B-2 Majority Preferred StockHolders: (i) alter, change, modify or amend (x) the terms pay and cause each of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so its Subsidiaries to pay all required Company-level taxes as to affect adversely the Series B-2 Preferred Stockand when due and payable; (ii) create any new class or series maintain and cause each of capital stock having a preference over or ranking pari passu its Subsidiaries to maintain insurance (in accordance 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 Corporationpast practice and industry standards); (iii) increase the authorized number maintain and cause each of shares of Series B-2 Preferred Stockits Subsidiaries to maintain its existence, material licenses and material permits in good standing; (iv) re-issue maintain and cause each of its Subsidiaries to maintain books and records, with access provided to any shares of Series B-2 Preferred Stock which have been converted or redeemed Investor in accordance with the terms hereofSection 4(b); (v) issue any Pari Passu Securities or Senior Securitiescomply and cause each of its Subsidiaries to comply with all applicable material laws, rules and regulations and all of its material contractual obligations; (vi) redeemretain an independent, nationally 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 regionally recognized accounting firm acceptable to the Series B-2 Majority Preferred Stock Holders as its auditor at all times (it being acknowledged that BDO ▇▇▇▇▇▇▇, LLP is acceptable to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; orMajority Preferred Holders); (vii) issue any Series B-2 Preferred Stock except pursuant hold meetings of the Board on at least a quarterly basis; (viii) make Tax Distributions to the terms 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 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 Exchange Agreement. In 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 event aggregate amount of the relevant tax that the Holders 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 aggregate compensation to be paid during such fiscal year to Executive Officers of the Company) being approved by the Board, including at least two-thirds one of the outstanding shares Board members appointed by the Guggenheim Investors); (x) for so long as CDP or any of Series B-2 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 Stock agrees Liquidation Amount with respect to allow the Corporation 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 not, unless it has received the prior written consent of the Majority Preferred Holders: (i) expand the Board to greater than seven (7) members; (ii) alter or change the rights, preferences or privileges obligations of the shares Preferred Units, including, without limitation, by creating or reclassifying any class or series of Series B-2 equity securities of the Company or any of its Subsidiaries on parity with or having preference over the Preferred Stock Units; (iii) repurchase or 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 obligation, subject to the limitations, if any, set forth in Section 8(a)(viii)); (v) 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 with the Preferred Units; (x) make any change to the Principal Line of Business conducted by the Company and its Subsidiaries; (xi) 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 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 Board; provided, however, that the approval of the Majority Preferred Holders shall not be required for any transaction for which all or substantially all of the 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 terms Management Agreement or any 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, then 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 Corporation will deliver notice 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 approved change 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-2 Preferred Stock that did not agree LLC Agreement (and the Company shall cause its direct and indirect Subsidiaries to make distributions sufficient to satisfy such alteration or change (obligation); provided, however, that, so long as the "Dissenting Holders") Senior Note Indenture is in effect and ------------------ the Dissenting Holders shall have the right for a period of thirty (30) days following such delivery to convert their Preferred Shares pursuant to 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 thatfunded 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, it applies : (1) expressly restricts the Company’s performance of this Agreement or any other 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 Company shall maintain and cause each of its Subsidiaries to less than all maintain insurance (in accordance with past practice and industry standards); (ix) The Company shall hold meetings of the Holders Board on at least a quarterly basis; or (x) agree to do any of Preferred Shares then outstandingthe foregoing.

Protective Provisions. So long as Once at least 1,666,667 shares of Series B-2 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 notnot (and shall cause its subsidiaries not to), without first obtaining the approval of the Holders holders of at least twoa majority of the then-thirds (2/3) of outstanding shares of Series B-2 B Preferred Stock: (ia) alter, change, modify authorize or amend (x) the terms of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create issue any new class or series of 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 over with respect to dividends, liquidation or ranking redemption rights senior to the Series B Preferred Stock; (b) amend the Corporation’s Certificate of Incorporation, bylaws or this Certificate of Designations in a manner that adversely affects the rights, preferences and privileges of the Series B Preferred Stock, or increase or decrease the total number of authorized shares of Series B Preferred Stock; (c) declare or pay any dividend upon or redeem any of the capital stock of the Corporation that is junior to or pari passu with the Series B-2 B Preferred Stock as to redemption liquidation or distribution dividend payments; (d) sell or otherwise dispose of all or substantially all of the assets upon a Liquidation Event or any other liquidation, dissolution or winding up 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; (iiie) 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 entity in which the Corporation or any subsidiary of the Corporation would have more than a 5% ownership interest; (g) increase the authorized number of shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 size of the Corporation ranking junior to the Series B-2 Preferred Stock as to the distribution Board of assets upon liquidation, dissolution or winding up Directors of the Corporation; or (viih) issue any Series B-2 Preferred Stock except pursuant to reorganize, dissolve, liquidate or otherwise wind up the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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 outstandingCorporation.

Protective Provisions. So long as shares of Series B-2 C-2 Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval of the Holders of at least two-thirds (2/3) of outstanding shares of Series B-2 C-2 Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B-2 C-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 C-2 Preferred Stock; (ii) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 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 B-2 C-2 Preferred Stock; (iv) re-issue any shares of Series B-2 C-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 C-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 C-2 Preferred Stock except pursuant to the terms of the Exchange Securities Purchase Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 C-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 C-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 C-2 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 following such delivery to convert their Preferred Shares pursuant to 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. So long as shares of Series B-2 A Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the CO-CORP LAW) of the Holders holders of at least two-thirds (2/3) a majority of the then outstanding shares of Series B-2 A Preferred Stock: (i) alter: alter or change the rights, change, modify preferences or amend (x) the terms privileges of the Series B-2 A Preferred Stock in or any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 A Preferred Stock; (ii) ; create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 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 shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the CorporationCorporation (as previously defined in Article II hereof, "Senior Securities"); or 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 (vii) 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 B-2 A Preferred Stock except pursuant to the terms under Section 305 of the Exchange AgreementInternal 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 that the Holders holders of at least two-thirds a majority of the then outstanding shares of Series B-2 A Preferred Stock agrees agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 A Preferred Stock Stock, pursuant to subsection (a) above, so as to affect the terms hereofSeries A Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 A Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have the right of Dissenting Stockholders under the NVGCL to petition for a period the payment of thirty (30) days following such delivery to convert the fair value of their Preferred Shares pursuant to the terms hereof shares as they existed it exists prior to such alteration or change, change or to continue to hold such their shares of Series A 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 outstandingStock.

Protective Provisions. So Subject to the rights of series of Preferred Stock which may from time to time come into existence, as long as the Series B Preferred Stock and Series B-▇ Preferred Stock together constitute at least 10% of the issued and outstanding shares of Series B-2 Preferred Stock are outstandingthe Corporation on an as converted basis, the Corporation shall notnot (by amendment, merger, consolidation or otherwise) without first obtaining the approval (by vote or written consent, as provided by law) of the Holders holders of at least two-thirds (2/3) a majority of the then outstanding shares of Series B-2 B Preferred Stock and Series B-▇ Preferred Stock, voting together as a class: (i1) alter, change, modify or amend (x) the terms of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stockeffect a Liquidation Transaction; (ii2) create any new class or 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 Preferred Stock pursuant so as to affect adversely the terms hereofshares of such series, then but shall not so affect the entire class; (3) increase or decrease (other than by conversion) the total number of authorized shares of Preferred Stock; (4) authorize or issue, or obligate itself to issue, any other equity security, including any security (other than Series B Preferred Stock or Series B-▇ Preferred Stock) convertible into or exercisable for any equity security, having a preference over, or being on a parity with, the Series B Preferred Stock or Series B-▇ Preferred Stock with respect to voting (other than the pari passu voting rights of Common Stock), dividends, redemption, conversion or upon liquidation; (5) pay of dividends; (6) effect an initial public offering of the Corporation will deliver notice of such approved change to the holders of the Series B-2 Preferred Stock that did which is not agree to such alteration a Qualified IPO; (7) acquire all or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have the right for a period of thirty (30) days following such delivery to convert their Preferred Shares pursuant to 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 substantially all of the Holders properties, assets or shares of Preferred Shares then outstandingany other corporation or entity; (8) effect any related party transaction; or (9) continue the engagement of the Corporation’s legal attorneys and the hiring of other legal attorneys; provided that the engagement of the current legal attorneys shall remain in effect until otherwise resolved by the Board of Directors or by the Company’s management.

Protective Provisions. (a) So long as any shares of Series B-2 B Preferred Stock are outstanding, the Corporation this corporation shall not, without first obtaining the approval (by vote or written consent), of the Holders holders of at least two-thirds (66 2/3) % of the then outstanding shares of Series B-2 B Preferred Stock: (i) alter, change, modify or amend (x) the terms corporation's Articles of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or Senior Securities; (vi) redeemIncorporation to, or declareotherwise, 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 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 terms hereofprovisions 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 the Corporation will deliver notice outstanding or (B) any redemption required by Section 1.6 to be made of such approved change to the holders 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-2 B Preferred Stock that did not agree 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, the liquidation payment per share, the redemption price per share and the number of shares required to such alteration or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have the right for a period of thirty (30) days following such delivery to convert their Preferred Shares pursuant to the terms hereof as they existed prior to such alteration or change, or to continue to hold such Preferred Shares. No such change be redeemed on any mandatory Series B Redemption Date shall be effective to proportionately reduced or increased, as the extent that, by its terms, it applies to less than all of the Holders of Preferred Shares then outstandingcase may be.

Protective Provisions. (a) So long as shares of Series B-2 AA Preferred Stock are outstanding, the Corporation shall not, not without first obtaining the approval by vote or written consent, as provided by the General Corporation Law of Delaware of the Holders of at least two-thirds (2/3) a majority of the then outstanding shares of Series B-2 AA Preferred Stock: (i) alterStock alter or change the rights, change, modify preferences or amend (x) the terms privileges of the Series B-2 AA Preferred Stock in or any way or (y) the terms of any other capital stock of the Corporation Senior Securities so as to affect adversely the Series B-2 AA Preferred Stock; (ii) create any new class or 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds a majority of the then outstanding shares of Series B-2 AA Preferred Stock agrees agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 AA Preferred Stock Stock, pursuant to subsection (a) above, so as to affect adversely the terms hereofSeries AA Preferred Stock, then the Corporation will deliver mail notice of such approved alteration or change to the holders Holders of the Series B-2 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 such delivery the date the notice was mailed to convert their Preferred Shares pursuant to the terms hereof of this resolution of Designation as they existed exist prior to such alteration or change, change or to continue to hold such their shares of Series AA Preferred Shares. No such 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 effective entitled to receive additional shares of Series AA Preferred Stock in an amount determined by the following formula: multiply the number of shares of Series AA Preferred Stock of the Holder immediately prior to the extent that, new issuance by its terms, it applies the number of shares of Series A and/or Series AA Preferred Stock to less than all 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 Holders of new issuance. The rights provided for in this Section 7(b) shall not apply to any shares for which the Series AA Preferred Shares then outstandingStock has been converted or any shares which have been redeemed.

Protective Provisions. So For so long as at least 9,500 shares of Series B-2 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 affirmative vote or consent of the Holders holders of at least two-thirds (2/3) of the issued and outstanding shares of Series B-2 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 together as a 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): (i) alterdesignate, changeauthorize, modify create, issue, sell, redeem or amend repurchase any class or series of equity securities or equity-backed securities of the Company or any subsidiary thereof, including without limitation, capital stock (xincluding 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 combination of 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 terms issuance of Common Stock upon the conversion of the Series B-2 Preferred Stock 7.5% Convertible Subordinated Notes due 2007 of Allied Riser Communications Corporation (the "Notes") in any way 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 (yiii) the terms a conversion or exchange right set forth in Company's certificate of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stockincorporation; (ii) create 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 new class dividends or series make any distributions of capital stock having a preference over or ranking pari passu any kind with respect to any outstanding Equity Securities of the Series B-2 Preferred Stock as to redemption or distribution of assets upon a Liquidation Event Company or any other liquidation, dissolution or winding up of the Corporationsubsidiary thereof; (iii) increase approve the authorized number merger, consolidation, dissolution or liquidation of shares of Series B-2 Preferred Stockthe Company or any subsidiary thereof, or any transaction having the same effect; (iv) re-issue any increase or decrease the aggregate number of authorized shares of Series B-2 Common Stock or Preferred Stock which have been converted or redeemed in accordance with of the terms hereofCompany; (v) issue sell all or substantially all of the assets of the Company and its subsidiaries taken as a whole, whether directly through a sale of the Company's interests in its subsidiaries or other assets, or indirectly through a sale of the assets of its subsidiaries, in one transaction or any Pari Passu Securities series of transactions, or Senior Securitiesapprove any transaction or series of transactions having the same effect; (vi) redeemcause, directly or declareindirectly, pay a material change in the nature of the business or make any provision strategic direction of the Company and its subsidiaries, taken as a whole; (vii) approve the filing for any dividend or distribution with respect to, the Common Stock 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 capital stock of the Corporation ranking junior to the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the CorporationCompany 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 (viiix) issue amend, repeal or modify any Series B-2 Preferred Stock except pursuant to the terms provision of the Exchange Agreement. In the event Company's certificate of incorporation in a manner that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change adversely affects the rights, powers or preferences or privileges of the shares of Series B-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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 outstandingStock.

Protective Provisions. So long as shares of Series B-2 Preferred Stock are outstanding(1) If and whenever at any time after the date hereof, the Corporation shall not(i) subdivide or redivide the outstanding Class A Non-Voting Common Shares into a greater number of Class A Non-Voting Common Shares or (ii) consolidate, combine or reduce the outstanding Class A Non-Voting Common Shares into a lesser number of 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 such event shall occur. (2) For greater certainty, but without first obtaining limitation, if at any time after the approval date hereof there shall occur any of the Holders of at least two-thirds (2/3) of outstanding shares of Series B-2 Preferred Stockfollowing: (i1) alter, change, modify any reclassification or amend (x) the terms redesignation of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or 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 Class A Non-Voting Common Shares or any conversion, exchange or other liquidation, dissolution change of Class A Non-Voting Common Shares into other shares or winding up of the Corporation; (iii) increase the authorized number of shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or Senior Securities; (vi) redeem, or declare, pay or make any provision for any dividend or distribution with respect to, the Common Stock securities or any other capital stock of the Corporation ranking junior to the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporationreorganization; or (vii2) issue any Series B-2 Preferred Stock except pursuant 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 terms 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 Exchange Agreement. In Shares) which would otherwise have been paid by FUR to Investco or the event that relevant Onex Associate if such Capital Reorganization had not occurred. (3) Upon the Holders occurrence of at least two-thirds 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 outstanding shares rights of Series B-2 Preferred Stock agrees to allow FUR, Investco and the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such approved change to the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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 outstandingOnex Associates hereunder.

Protective Provisions. So long Prior to the occurrence of a Consolidation Triggering Event (as that term is defined in Part B of Article IV of the SunPower’s Restated Certificate of Incorporation), SunPower shall not take the following actions without the written consent or affirmative vote of members representing at least 75% of the then-authorized number of the members of SunPower’s Board of Directors: (a) approve SunPower’s AOP prior to the beginning of 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 aggregate of more than 1% of the fully diluted shares of Series B-2 Preferred Stock are outstanding, capital stock of SunPower or a negative impact to SunPower’s cash flow of $2,000,000 or more; (b) undertake any transaction or series of related transactions which results or would reasonably be expected to result individually or in the Corporation shall not, without first obtaining the approval aggregate in SunPower issuing shares of the Holders capital stock of at least two-thirds 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 (2/34%) of the then outstanding shares of Series B-2 Preferred Stock:capital stock of SunPower unless provided for in SunPower’s then-current AOP approved in accordance with this Article III; (ic) alterundertake any transaction or series of related transactions whereby SunPower pays, changeincurs or accrues or would reasonably be expected to pay, modify incur or amend (x) the terms accrue a liability equal to or in excess of the Series B-2 Preferred fair market value (based upon the closing price of the Class A Common Stock reported for the business day immediately prior to the consummation of such transaction or, if the Class A Common Stock is not traded in any way or a public market, the Board of Directors shall determine fair market value of SunPower in its good faith judgment) of four percent (y4%) of the terms then outstanding shares of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or 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) reCompany unless provided for in SunPower’s then-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed current AOP approved in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporationthis Article III; or (viid) issue enter into an exclusive license (other than an exclusive license the exclusivity of which is 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 transfer any Series B-2 Preferred Stock except pursuant to the terms intellectual property of the Exchange Agreement. In the event that the Holders of at least twoSunPower (unless such transaction was included in SunPower’s then-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B-2 Preferred Stock pursuant to the terms hereof, then the Corporation will deliver notice of such current AOP approved change to the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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 outstandingin accordance with this Article III).

Protective Provisions. So long as shares of the Series B-2 B Preferred Stock are remains outstanding, the Corporation Company shall not, without first obtaining the vote or written consent from holders of at least a majority of the Series B Preferred Stock, including XL (the “Series B Majority”), take any of the actions described requiring the approval of the Holders of at least two-thirds (2/3) of outstanding shares of Series B-2 A Preferred Stock: Director pursuant to the Current Charter, as well as (i) alter, change, modify or amend (x) the terms of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or 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 shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or 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 the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to and disproportionately alter or change the rights, preferences or privileges of the Series B Preferred Stock, (ii) amend or waive any provision of the Company’s Certificate of Incorporation or By-laws in a manner that would adversely and disproportionately alter or change the rights, preferences or privileges of the Series B Preferred Stock, or (iii) increase or decrease the authorized number of shares of Series B-2 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 pursuant to 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 terms hereof, then Company’s stockholders shall vote for any such Deemed Liquidation Event approved by (i) the Corporation will deliver notice Board; (ii) the approval of such approved change to the holders of the Series B-2 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 following such delivery to convert their Preferred Shares pursuant to 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 majority of the Holders Common Stock; and (iii) the holders of a majority of the Preferred Shares then outstandingStock, 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.