Common use of Adverse Changes Clause in Contracts

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the vote or consent of the Holders of at least 75% of the shares of Series B Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B Preferred Stock; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or (iii) any increase or decrease in the authorized number of shares of Series B Preferred Stock or issuance of shares of Series B Preferred Stock after the Issuance Date, provided that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b). For purposes of this Section 12(b), the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The vote or consent of the Holders of at least 75% a majority of the shares of Series B A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B A Preferred Stock;Stock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B A Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; orCompany; and (iii) any increase or decrease in the authorized number of shares of Series B A Preferred Stock or issuance of shares of Series B A Preferred Stock after the Original Issuance Date other than (i) shares of Series A Preferred Stock that were issued on the Second Closing Date (as defined in the Investment Agreement) or on the Second Closing Date (as defined in the Periphas Investment Agreement) or (ii) shares issued as PIK Dividends with respect to shares of Series A Preferred Stock that were issued on the Original Issuance Date, provided the Second Closing Date (as defined in the Investment Agreement) or the Second Closing Date (as defined in the Periphas Investment Agreement), or (iii) successive issuances of PIK Dividends with respect to shares of Series A Preferred Stock that were issued under the preceding clause (ii) or this clause (iii). provided, however, (A) that, with respect to the occurrence of any of the events set forth in clause (i) of this Section 13(b), so long as (1) the Series A Preferred Stock remains outstanding with the terms thereof materially unchanged, or (2) the Holders receive equity securities with rights, preferences, privileges and voting power substantially the same as those of the Series A Preferred Stock, then the occurrence of such event shall not be deemed to adversely affect such rights, preferences, privileges or voting power of the Series A Preferred Stock, and in such case such Holders shall not have any voting rights with respect to the occurrence of any of the events set forth in clause (i) of this Section 13(b) and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b)Holders. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The affirmative vote or consent of the Holders of at least 75% a majority of the shares of Series B A Preferred Stock outstanding at such timetime (other than, solely for the succeeding clauses (ii), (iii) and (iv), Affected Shares), voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or powers (including voting power powers) of the Series B A Preferred StockStock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, to the Series B A Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or; (iii) any increase or decrease in the authorized number of shares of Series B A Preferred Stock or issuance of shares of Series B A Preferred Stock after the Original Issuance Date; and (iv) any voluntary deregistration or delisting of the Common Stock (other than in connection with a Change of Control); provided, provided however, (A) that, with respect to any merger, consolidation or similar transaction in which the holders of the Series A Preferred Stock receive equity securities with rights, preferences, privileges and powers (including voting power) substantially the same as those of the Series A Preferred Stock and the provisions of the certificate of incorporation and bylaws (or equivalent governing documents) of the surviving entity or successor entity in such transaction do not differ from the Certificate of Incorporation or Bylaws in any manner that would have an adverse effect, in any material respect, on the rights, preferences, privileges or powers (including voting power) of the Series A Preferred Stock or the holders thereof, such holders shall not have any voting rights with respect to such amendment, alteration or repeal pursuant to clause (i) above and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred Stock) into, or the issuance of, Junior Stock will not require the vote of the Holders pursuant to this Section 12(b)holders of the Series A Preferred Stock. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation. Notwithstanding anything to the contrary in this Certificate of Designations, any amendment, alteration or repeal (whether by merger, consolidation, or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that adversely affects the Conversion Price, Conversion Rate, Liquidation Preference, Change of Control Redemption, the Mandatory Conversion Price or Change of Control Put Price shall not be effective as to the shares of Series A Preferred Stock held by any Holder without the consent of such Holder.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The vote or consent of the Holders of at least 75% a majority of the shares of Series B A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B A Preferred StockStock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B A Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; orand (iii) any increase or decrease in the authorized number of shares of Series B A Preferred Stock or issuance of shares of Series B A Preferred Stock after the Issuance Date other than shares issued as PIK Dividends with respect to shares of Series A Preferred Stock that were issued on the Issuance Date. provided, provided however, (A) that, with respect to the occurrence of any of the events set forth in clause (i) above, so long as (1) the Series A Preferred Stock remains outstanding with the terms thereof materially unchanged, or (2) the holders of the Series A Preferred Stock receive equity securities with rights, preferences, privileges and voting power substantially the same as those of the Series A Preferred Stock, then the occurrence of such event shall not be deemed to adversely affect such rights, preferences, privileges or voting power of the Series A Preferred Stock, and in such case such holders shall not have any voting rights with respect to the occurrence of any of the events set forth in clause (i) above and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b)holders of the Series A Preferred Stock. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The vote or consent of the Holders of at least 75% a majority of the shares of Series B A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B A Preferred StockStock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B A Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; orand (iii) any increase or decrease in the authorized number of shares of Series B Preferred Stock or issuance of shares of Series B A Preferred Stock after the Issuance Date other than shares issued as PIK Dividends with respect to shares of Series A Preferred Stock that were issued on the Issuance Date. provided, provided however, (A) that, with respect to the occurrence of any of the events set forth in clause (i) above, so long as (1) the Series A Preferred Stock remains outstanding with the terms thereof materially unchanged, or (2) the holders of the Series A Preferred Stock receive equity securities with rights, preferences, privileges and voting power substantially the same as those of the Series A Preferred Stock, then the occurrence of such event shall not be deemed to adversely affect such rights, preferences, privileges or voting power of the Series A Preferred Stock, and in such case such holders shall not have any voting rights with respect to the occurrence of any of the events set forth in clause (i) above and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b)holders of the Series A Preferred Stock. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The affirmative vote or consent of the Holders Holders, voting as a separate class, of (x) at least 75% a majority of the shares of Series B A Preferred Stock Shares outstanding at such time, voting together as a separate class, if given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purposepurpose or (y) at least three-fourths of the Series A Preferred Shares outstanding at such time, if given by written consent, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCLAct: (i) any amendment, alteration or repeal (whether by merger, amalgamation, scheme of arrangement, consolidation or otherwise) of any provision of the Certificate Memorandum of Incorporation (including Association, the Bye-Laws or this Certificate of Designations) or Bylaws Designations that would have an adverse effect on reasonably be expected to adversely affect any of the rights, preferences, preferences or privileges or voting power of the Series B A Preferred StockShares; (ii) any amendment or alteration (whether by merger, amalgamation, scheme of arrangement, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate Memorandum of Incorporation Association, the Bye-Laws or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock Shares of the Company ranking senior to, to or on a parity basis with, pari passu with the Series B A Preferred Stock Shares as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or (iii) any increase or decrease in the authorized number of shares of Series B Preferred Stock or issuance of shares additional Series A Preferred Shares, other than in payment of Dividends on the outstanding Series B A Preferred Stock after Shares; provided, however, (A) that, with respect to the Issuance Dateoccurrence of any of the events set forth in clause (i) above, provided so long as (1) Series A Preferred Shares remain outstanding with the terms thereof materially unchanged, or (2) the holders of the Series A Preferred Shares receive equity securities with rights, preferences, privileges and voting power substantially the same as those of the Series A Preferred Shares, then the occurrence of such event shall not be deemed to adversely affect such rights, preferences, privileges or voting power of the Series A Preferred Shares, and in such case such holders shall not have voting rights under this Section 13(b) with respect to the occurrence of any of the events set forth in clause (i) above and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred StockShares) into, or the issuance of, Junior Stock Shares will not require the vote the Holders pursuant to this Section 12(b). For purposes of this Section 12(b), the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to holders of the Certificate of IncorporationSeries A Preferred Shares.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The vote or consent of the Holders of at least 75% a majority of the shares of Series B Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B Preferred StockStock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; orand (iii) any increase or decrease in the authorized number of shares of Series B Preferred Stock or issuance of shares of Series B Preferred Stock after the Issuance Date. provided, provided however, (A) that, with respect to the occurrence of any of the events set forth in clause (i) above, so long as (1) the Series B Preferred Stock remains outstanding with the terms thereof materially unchanged, or (2) the holders of the Series B Preferred Stock receive equity securities with rights, preferences, privileges and voting power substantially the same as those of the Series B Preferred Stock, then the occurrence of such event shall not be deemed to adversely affect such rights, preferences, privileges or voting power of the Series B Preferred Stock, and in such case such holders shall not have any voting rights with respect to the occurrence of any of the events set forth in clause (i) above and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b)holders of the Series B Preferred Stock. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The vote or consent of the Holders of at least 75% a majority of the shares of Series B A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B A Preferred Stock; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B A Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or (iii) any increase or decrease (except to cancel or retire shares redeemed, repurchased or converted) in the authorized number of shares of Series B A Preferred Stock or issuance of shares of Series B A Preferred Stock after the Issuance Date, provided that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred Stock) into, or the issuance of, Junior Stock will not require the vote of the Holders pursuant to this Section 12(b‎‎Section 13(b). For purposes of this Section 12(b‎‎Section 13(b), the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation, provided, however, that the filing of an amendment to, or an amended and restated, certificate of designations for purposes of reducing the number of authorized shares of Series A Preferred Stock or any class or series of stock of the Company then outstanding by the number of such shares that have been cancelled or retired shall not be deemed to be an amendment to the Certificate of Incorporation.

Adverse Changes. In So long as any shares of Series A Preferred Stock are outstanding, in addition to, and not in limitation of, Section 12(a)to any other vote required by applicable law, the Company may not take any of the following actions without the prior affirmative vote or written consent of from the Holders of at least 75% a majority of the then-issued and outstanding shares of Series B A Preferred Stock outstanding at such timeStock, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendmentamend, alteration alter, repeal or repeal otherwise modify (whether by merger, consolidation or otherwise) any provision of the Certificate of Incorporation or Bylaws in a manner that would adversely affect the powers, preferences, rights or privileges of the Series A Preferred Stock; (ii) amend, alter, repeal or otherwise modify (whether by merger, consolidation or otherwise) this Certificate of Designations in any manner; (iii) amend, alter, repeal or otherwise modify (whether by merger, consolidation or otherwise) any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B Preferred Stock; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of), or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or take any other action action, in each case, to authorize or create, (or increase the number of authorized or issued shares of), create, classify, reclassify or any securities convertible into shares of, or reclassify any security into, or issue, issue any Parity Stock (or any additional shares of Series A Preferred Stock) or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the CompanyStock; or (iiiiv) solely for so long as Investor A has the rights set forth in Section 4 of the Investor Rights Agreement, other than refinancings of existing Indebtedness on substantially the same commercial terms, for any increase or decrease in the authorized number of shares of Series B Preferred Stock or issuance of shares of Series B Preferred Stock after the Issuance Dategiven calendar year, provided incur Indebtedness such that the authorization or creation of, or the increase in the number aggregate amount of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b). For purposes of this Section 12(b), the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock Indebtedness of the Company and its Subsidiaries immediately after such incurrence is in excess of 105% of the aggregate amount of Indebtedness of the Company and its Subsidiaries in the prior year as of December 31 (for purposes of [2022],1 the reference amount of Indebtedness for the prior calendar year shall be deemed an amendment the aggregate amount of Indebtedness of the Company immediately following the closing of the sale of the Series A Preferred Stock pursuant to the Certificate of IncorporationA&R Investment Agreement).

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The affirmative vote or consent of the Holders of at least 75% a majority of the shares of Series B Preferred Stock outstanding at such timetime (other than, solely for the succeeding clauses (ii), (iii) and (iv), Affected Shares), voting together as a separate class, given in person or by proxy, either in writing by consent without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or powers (including voting power powers) of the Series B Preferred StockStock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, to the Series B Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or; (iii) any increase or decrease in the authorized number of shares of Series B Preferred Stock or issuance of shares of Series B Preferred Stock after other than the Issuance Dateissuance of shares of Series B Preferred Stock not in excess of the initially authorized number of shares of Series B Preferred Stock; and (iv) any voluntary deregistration or delisting of the Common Stock (other than in connection with a Change of Control); provided, provided however, (A) that, with respect to any merger, consolidation or similar transaction in which the holders of the Series B Preferred Stock receive equity securities with rights, preferences, privileges and powers (including voting power) substantially the same as those of the Series B Preferred Stock and the provisions of the certificate of incorporation and bylaws (or equivalent governing documents) of the surviving entity or successor entity in such transaction do not differ from the Certificate of Incorporation or Bylaws in any manner that would have an adverse effect, in any material respect, on the rights, preferences, privileges or powers (including voting power) of the Series B Preferred Stock or the holders thereof, such holders shall not have any voting rights with respect to such amendment, alteration or repeal pursuant to clause (i) above and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock will not require the vote of the Holders pursuant to this Section 12(b)holders of the Series B Preferred Stock. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation. Notwithstanding anything to the contrary in this Certificate of Designations, any amendment, alteration or repeal (whether by merger, consolidation, or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that adversely affects the Conversion Price, Conversion Rate, Liquidation Preference, the Change of Control Put right, the Mandatory Conversion Price or Change of Control Put Price shall not be effective as to the shares of Series B Preferred Stock held by any Holder without the consent of such Holder.

Adverse Changes. In addition toto any other vote required by the Charter, and not in limitation of, Section 12(a), the Bylaws or applicable law, (i) the vote or consent of the Holders of at least (x) 75% (during the period in which the Ares 90% Beneficial Holding Requirement is satisfied) or (y) a majority (during all other periods) of the shares of Series B A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, directly or indirectly, whether or not such approval is required pursuant to the DGCLMGCL: (ia) any amendment, alteration modification, supplementation, waiver or repeal (whether by merger, consolidation or otherwise) other change of any provision of the Certificate of Incorporation (including this Certificate of Designations) Charter in a manner that adversely alters or Bylaws that would have an adverse effect on changes the rights, preferencespowers, preferences or privileges or voting power of the Holders of the Series B A Preferred Stock;Stock including as a result of a merger, amalgamation, consolidation or other similar or extraordinary transaction. (ii) the vote or consent of the Holders of at least a majority of the shares of Series A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for effecting or validating any of the following actions, directly or indirectly, whether or not such approval is required pursuant to the MGCL: (a) the authorization, issuance or reclassification of any Parity Stock or Senior Stock, or any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action Company Charter Documents to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock (including any increase in the number of authorized or issued shares of Series A Preferred Stock, other than with respect to PIK Dividends) or Senior Stock; (b) the redemption, repurchase or other acquisition of any Junior Stock by the Corporation (provided that, for the avoidance of doubt, the foregoing shall not restrict (i) any repurchase of unvested shares at cost following termination of an employee, advisor or any other class or series of Capital Stock consultant of the Corporation or its Subsidiaries, (ii) repurchases or acquisitions pursuant to the cashless exercise of Company ranking senior toStock Options (as defined in the Investment Agreement) or the forfeiture or withholding of Taxes with respect to Company Stock Options, Company Restricted Shares (as defined in the Investment Agreement), Company PSUs (as defined in the Investment Agreement) or on a parity basis with, Company RSUs (as defined in the Series B Preferred Stock as to dividend rights Investment Agreement) or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or (iii) any increase the repurchase, redemption or decrease in the authorized number other acquisition of shares issued in connection with existing DownREIT arrangements); (c) the incurrence of Series B Preferred any additional Indebtedness by the Corporation or its Subsidiaries not otherwise permitted under the Corporation’s Indebtedness Agreements existing on the Closing Date, as they may be amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities) in whole or in part from time to time; (d) the effecting by the Corporation or any of its Subsidiaries of any voluntary deregistration under the Exchange Act or any voluntary delisting with the NYSE in respect of the Common Stock other than in connection with a Change of Control pursuant to which the Corporation agrees to satisfy, or will otherwise cause the satisfaction, in full of its obligations under Section 9 of these Articles Supplementary; and (e) in connection with any financing transaction or any capital raising transaction, the issuance of shares preferred stock, senior securities or securities convertible into preferred stock or senior securities in any Subsidiary of Series B Preferred Stock after the Issuance DateCorporation to any Person that is not the Corporation or a wholly-owned Subsidiary of the Corporation; provided, provided however, that the authorization authorization, creation or creation classification of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b)of the Series A Preferred Stock. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations articles supplementary or any similar document setting forth or changing the designations, powersdesignation, preferences, conversion or other rights, qualificationsvoting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms and restrictions conditions of redemption of any class or series of stock of the Company Corporation shall be deemed an amendment to the Certificate of IncorporationCharter.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The affirmative vote or consent of the Holders of at least 75% a majority of the shares of Series B A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B A Preferred StockStock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B A Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or; (iii) any increase or decrease in the authorized number of shares of Series B A Preferred Stock or issuance of shares of Series B A Preferred Stock after the Issuance Date; and (iv) any dividend on the Common Stock that is a one-time special dividend of $100,000,000 or more (in cash or measured by the Fair Market Value of the property being distributed in the dividend). provided, provided however, (A) that, with respect to the occurrence of any of the events set forth in clause (i) above, so long as (1) the Series A Preferred Stock remains outstanding with the terms thereof materially unchanged, or (2) the holders of the Series A Preferred Stock receive equity securities with rights, preferences, privileges and voting power substantially the same as those of the Series A Preferred Stock, then the occurrence of such event shall not be deemed to adversely affect such rights, preferences, privileges or voting power of the Series A Preferred Stock, and in such case such holders shall not have any voting rights with respect to the occurrence of any of the events set forth in clause (i) above and (B) that the authorization or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B A Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b)holders of the Series A Preferred Stock. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation.

Adverse Changes. In addition to, and not in limitation of, Section 12(a), the The affirmative vote or consent of the Holders of at least 75% a majority of the shares of Series B A Preferred Stock outstanding at such time, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, for effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendment, alteration or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on materially, adversely and disproportionately affect the rights, preferences, privileges or powers (including voting power powers) of the Series B A Preferred StockStock or the Holder thereof; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of, or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or any other action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or reclassify any security into, or issue, any Senior Stock, Parity Stock or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, to or on a parity basis with, pari passu with the Series B A Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company; or; (iii) the Company or any increase of its Subsidiaries issuing or decrease authorizing the issuance of any debt security, if the Company’s Consolidated Total Net Debt following such action would exceed four times the Company’s Consolidated EBITDA for its most recently completed four consecutive fiscal quarters; provided that no consent of the Holders shall be required with respect to the issuance or the authorization of the issuance by the Company or any of its Subsidiaries of any debt security issued or authorized by the Company or any of its Subsidiaries to redeem, repay, repurchase, defease, retire or otherwise refinance outstanding indebtedness of the Company or any of its Subsidiaries; provided, further, that no consent of the Holders shall be required with respect to any draws or the incurrence of indebtedness by the Company or any of its Subsidiaries under the Existing Credit Agreement; (iv) the Company selling, issuing, sponsoring, creating or distributing any digital tokens, cryptocurrency or other blockchain-bassets, or the Company holding more than 10% of its total cash and cash equivalents in digital tokens, cryptocurrency or other blockchain-based assets; any (v) the authorized number Company agreeing to take any of shares the foregoing actions listed in clauses (i) through (iv) of this Section 13(b); provided, however, that, with respect to any merger, consolidation or similar transaction in which the holders of the Series B A Preferred Stock receive equity securities with rights, preferences, privileges and powers (including voting power) substantially the same as those of the Series A Preferred Stock and the provisions of the certificate of incorporation and bylaws (or equivalent governing documents) of the surviving entity or successor entity in such transaction do not differ from the Certificate of Incorporation or Bylaws in any manner that would have an adverse effect, in any material respect, on the rights, preferences, privileges or powers (including voting power) of the Series A Preferred Stock or issuance of shares of Series B Preferred Stock after the Issuance Dateholders thereof, provided that the authorization such holders shall not have any voting rights with respect to such amendment, alteration or creation of, or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders repeal pursuant to this Section 12(b)clause (i) above. For purposes of this Section 12(b)13, the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock of the Company shall be deemed an amendment to the Certificate of Incorporation.

Adverse Changes. In addition to, So long as (i) with respect to Section 11(b)(i) and not in limitation of, Section 12(a11(b)(ii), any shares of Class A Preferred Stock are outstanding and (ii) with respect to Section 11(b)(iii) and 11(b)(iv), shares of Class A Preferred Stock with an aggregate Liquidation Preference equal to or greater than $25,000,000 are outstanding, in addition to any other vote required by applicable law, the Company may not take any of the following actions (including by means of merger, consolidation, reorganization, recapitalization or otherwise) without the prior affirmative vote or written consent of from the Holders of at least 75% a majority of the then-issued and outstanding shares of Series B Class A Preferred Stock outstanding at such timeStock, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendmentamend, alteration alter or repeal (whether by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on adversely affect the relative rights, preferences, preferences or privileges or voting power of the Series B Class A Preferred Stock; (ii) any amendment or alteration (whether by mergerauthorize, consolidation or otherwise) create, increase the authorized amount of, or issue any supplement (whether by a certificate class or series of designations Senior Stock, Parity Stock or otherwise) to, the Certificate of Incorporation or any provision thereofClass A Preferred Stock, or any other action to authorize or createsecurity convertible into, or increase exchangeable or exercisable for any of the number of authorized or issued shares of, or any securities convertible into shares offoregoing, or reclassify any security into, or issueany Senior Stock, any Parity Stock or Senior Class A Preferred Stock (provided, however, that the authorization, creation, increase in the authorized amount of, or issuance of any other class or series of Capital Junior Stock of the Company ranking senior toor any security convertible into, or on a parity basis withexchangeable or exercisable for Junior Stock (as long as such convertible, the Series B Preferred Stock as to dividend rights exchangeable or rights on the distribution of assets on any voluntary or involuntary liquidationexercisable security is not Senior Stock, dissolution or winding up of the affairs of the Company; or (iii) any increase or decrease in the authorized number of shares of Series B Preferred Parity Stock or issuance of shares of Series B Class A Preferred Stock after the Issuance Date, provided that the authorization or creation ofStock), or the increase in the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock will not require the vote or consent of any Holders); (iii) incur or guarantee any third-party debt security or similar instrument or incur or guarantee third-party indebtedness for borrowed money, in each case other than (A) any indebtedness under the Holders financing programs involving any financing or credit support being provided by Macquarie Bank Limited and/or any of its Affiliates (“MQ”) pursuant to this Section 12(b). For purposes that certain Credit Agreement, dated as of this Section 12(bAugust 31, 2022, by and between MQ, the Company and the Subsidiary Guarantors party thereto, in an aggregate principal amount not to exceed $1,000,000,000 at any one time (the “Financing Programs”), (B) any indebtedness permitted to be incurred pursuant to the filing Financing Programs, (C) indebtedness that may be deemed to exist pursuant to any letter of credit, performance bond, surety, statutory appeal or similar obligation entered into or incurred in accordance the ordinary course of business in an aggregate principal amount not to exceed $5,000,000 at any one time, and (D) any other indebtedness with applicable law an aggregate committed and/or principal amount outstanding less than $75,000,000 at any one time (in each case of a certificate clauses (A) through (C), together with extensions, refinancings, modifications, amendments and restatements of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock each of the Company shall be deemed foregoing, so long as the principal and/or committed amount thereof is not increased); or (iv) (A) grant any liens on the Company’s intellectual property to any lender (other than any liens securing indebtedness permitted pursuant to clause (iii)(A) immediately above), or (B) transfer the Company’s intellectual property to an amendment to entity not wholly beneficially owned by the Certificate of IncorporationCompany.

Adverse Changes. In So long as any shares of Series A Preferred Stock are outstanding, in addition to, and not in limitation of, Section 12(a)to any other vote required by applicable law, the Company may not take any of the following actions without the prior affirmative vote or written consent of from the Holders of at least 75% a majority of the then-issued and outstanding shares of Series B A Preferred Stock outstanding at such timeStock, voting together as a separate class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for, directly or indirectly, effecting or validating any of the following actions, whether or not such approval is required pursuant to the DGCL: (i) any amendmentamend, alteration alter, repeal or repeal otherwise modify (whether by merger, consolidation or otherwise) any provision of the Certificate of Incorporation or Bylaws in a manner that would adversely affect the powers, preferences, rights or privileges of the Series A Preferred Stock; (ii) amend, alter, repeal or otherwise modify (whether by merger, consolidation or otherwise) this Certificate of Designations in any manner; (iii) amend, alter, repeal or otherwise modify (whether by merger, consolidation or otherwise) any provision of the Certificate of Incorporation (including this Certificate of Designations) or Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of the Series B Preferred Stock; (ii) any amendment or alteration (whether by merger, consolidation or otherwise) of), or any supplement (whether by a certificate of designations or otherwise) to, the Certificate of Incorporation or any provision thereof, or take any other action action, in each case, to authorize or create, (or increase the number of authorized or issued shares of), create, classify, reclassify or any securities convertible into shares of, or reclassify any security into, or issue, issue any Parity Stock (or any additional shares of Series A Preferred Stock) or Senior Stock or any other class or series of Capital Stock of the Company ranking senior to, or on a parity basis with, the Series B Preferred Stock as to dividend rights or rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the CompanyStock; or (iiiiv) solely for so long as Investor A has the rights set forth in Section 4 of the Investor Rights Agreement, other than refinancings of existing Indebtedness on substantially the same commercial terms, for any increase or decrease in the authorized number of shares of Series B Preferred Stock or issuance of shares of Series B Preferred Stock after the Issuance Dategiven calendar year, provided incur Indebtedness such that the authorization or creation of, or the increase in the number aggregate amount of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock will not require the vote the Holders pursuant to this Section 12(b). For purposes of this Section 12(b), the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, powers, preferences, rights, qualifications, limitations and restrictions of any class or series of stock Indebtedness of the Company and its Subsidiaries immediately after such incurrence is in excess of 105% of the aggregate amount of Indebtedness of the Company and its Subsidiaries in the prior year as of December 31 (for purposes of [2022],3 the reference amount of Indebtedness for the prior calendar year shall be deemed an amendment the aggregate amount of Indebtedness of the Company immediately following the closing of the sale of the Series A Preferred Stock pursuant to the Certificate of IncorporationInvestment Agreement).