Common use of Consent Rights Clause in Contracts

Consent Rights. So long as any shares of the Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock remain outstanding, the Corporation shall not without obtaining the prior written affirmative vote of the Approving Holders: (a) liquidate, dissolve or wind-up the business and affairs of the Corporation, including a deemed liquidation as described in Article IV3.b.ii(a), or consent to any of the foregoing; (b) effectuate a merger or consolidation of the Corporation with or into any other entity; (c) sell, lease, exclusively license or otherwise dispose of all or substantially all of the Corporation’s assets; (d) alter, change, amend or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation; (e) alter, change or amend any of the preferences, privileges or rights of any series of Preferred Stock, whether by merger, consolidation or otherwise; (f) purchase or redeem any equity securities of the Corporation other than repurchases at no greater than the original cost therefor of equity securities issued to former employees, officers, directors, consultants or other persons who performed services for the Corporation in connection with the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchase; (g) increase or decrease the authorized number of directors constituting the Corporation’s board of directors; (h) authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of any Series F Preferred Stock or any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior or pari passu to the Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock with respect to voting, the payment of dividends, redemptions or distributions upon liquidation or otherwise; (i) declare or pay any cash dividend on any shares of capital stock; (j) grant any lien on any assets of the Corporation in connection with the incurrence of more than $1,000,000 of indebtedness; (k) incur more than $1,000,000 of indebtedness; (l) make any investments or acquisitions in an amount greater than $1,000,000; (m) make any capital expenditures not provided for in the annual budget approved by the Corporation’s board of directors exceeding a cumulative amount of $500,000; or (n) increase the number of shares of Common Stock available under any stock incentive plan.

Consent Rights. So long as any shares Notwithstanding the foregoing, until the Dividend Cessation Date of the all Series F B Preferred Stock, Series E Preferred Stock or Series D Preferred Stock remain outstanding, the Corporation shall not, and shall cause its Subsidiaries not to, directly or indirectly (whether by merger, consolidation, amendment of this Certificate of Designations or otherwise), without obtaining the prior written affirmative vote approval of the Approving HoldersAres: (ai) liquidateother than an equity issuance that is a Third Party Deleveraging Event create, dissolve or wind-up authorize the business and affairs creation of, or issue or obligate itself to issue any shares of, (A) Senior Stock, (B) Parity Stock (including any Series B Preferred Stock), (C) any Capital Stock that votes as a single class with the Series B Preferred Stock on any of the matters which require the consent of the holders of a majority of the Series B Preferred Stock pursuant to this Section 6, or (D) any Capital Stock of a Subsidiary of the Corporation, including other than issuances by a deemed liquidation as described in Article IV3.b.ii(a), or consent to any of the foregoing; (b) effectuate a merger or consolidation wholly owned Subsidiary of the Corporation with or into any other entity; (c) sell, lease, exclusively license or otherwise dispose of all or substantially all of the Corporation’s assets; (d) alter, change, amend or repeal any provision of the Certificate of Incorporation or Bylaws of to the Corporation; (eii) alterreclassify, change alter or amend any Capital Stock of the preferencesCorporation or its Subsidiaries if such reclassification, privileges alteration or rights amendment would render such other Capital Stock senior to or pari passu with the Series B Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation or the payment of dividends; (iii) enter into any series of Preferred Stockagreement with respect to, whether by or consummate, any merger, consolidation or otherwisesimilar transaction with any other Person pursuant to which the Corporation or such Subsidiary would not be the surviving entity in such transaction, if as a result of such transaction, any capital stock or equity or equity-linked securities of such Person would rank senior to or pari passu with the Series B Preferred Stock as to the payment of dividends or in the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the surviving entity or such Subsidiary; (fiv) purchase assume, incur or redeem guarantee, or authorize the creation, assumption, incurrence or guarantee of, any equity securities indebtedness for borrowed money (specifically excluding letters of credit, performance or payment bonds, and capitalized lease obligations) if, after taking into account such assumption, incurrence or guarantee of such indebtedness for borrowed money, the aggregate outstanding amount of such indebtedness for borrowed money of the Corporation and its Subsidiaries would exceed $5,000,000 on a consolidated basis, other than repurchases at no greater than (x) any indebtedness for borrowed money under the original cost therefor of equity securities issued Credit Agreement, or (y) any refinancing thereof in a principal amount not to former employees, officers, directors, consultants or other persons who performed services for exceed the Corporation in connection with available amount under the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchaseCredit Agreement; (gv) increase authorize or decrease consummate any Change of Control or Liquidation Event unless on or prior to the authorized number consummation of directors constituting such Change of Control or Liquidation Event, all shares of Series B Preferred Stock will be redeemed, paid or purchased in full at the Corporation’s board of directorsOptional Redemption Price; (hvi) authorizealter, issue amend, supplement, restate, waive or otherwise modify any provision of this Certificate of Designations or any other governing document of the Corporation (including the Certificate of Incorporation, Bylaws and any other Certificate of Designations) in a manner that would reasonably be expected to be materially adverse to the rights or obligations of the holders of the Series B Preferred Stock; provided that any amendments that are either (i) adversely disproportionate to holders of the Series B Preferred Stock as compared to other holders of the Series B Preferred Stock or (ii) adversely affect the definition of Cash Dividend Rate or Accumulated Dividend Rate or the redemption required by Section 7(a)(ii) shall require the prior written approval of each adversely affected holder of Series B Preferred Stock. (vii) alter, amend, supplement, restate, waive or otherwise modify or enter into any agreement providing for governing document of the issuance (contingent Corporation or otherwise) any other document to which the Corporation is or will be party or by which it or any of any its property is or will be bound in a manner that is reasonably expected to be adverse to the rights of the holders of the Series F B Preferred Stock or any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior or pari passu to the appoint a Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock with respect to voting, the payment of dividends, redemptions or distributions upon liquidation or otherwiseB Director as set forth in Section 12; (iviii) declare or pay at any cash dividend on any shares of capital stock; (jtime when the Corporation is prohibited from making Class A Cash Dividends pursuant to Section 4(d), utilize the restricted payment basket set forth in Section 8.05(l) grant any lien on any assets of the Corporation in connection with the incurrence of more Credit Agreement for any purpose other than $1,000,000 of indebtedness; (k) incur more than $1,000,000 of indebtedness; (l) make any investments making a Series B Preferred Cash Dividend or acquisitions in an amount greater than $1,000,000; (m) make any capital expenditures not provided for in the annual budget approved by the Corporation’s board of directors exceeding a cumulative amount of $500,000redeeming, repurchasing or otherwise retiring Series B Preferred Stock; or (nix) increase enter into any amendment to the number Credit Agreement (including an amendment and restatement or refinancing) that materially and adversely affects the ability of shares of Common Stock available under any stock incentive planthe Corporation to make cash dividend payments, liquidation payments or redemption payments compared to the Credit Agreement in effect on the Closing Date.

Consent Rights. So long as any the Conversant Parties Beneficially Own at least 15% of the outstanding shares of the Series F Preferred Stock, Series E Preferred Common Stock or Series D Preferred Stock remain outstandingon an as-converted basis, the Corporation Company shall not not, without obtaining the prior approval or written affirmative vote consent of the Approving Holders:Investor A (such approval or consent not to be unreasonably withheld, conditioned or delayed): (a) liquidate, dissolve or wind-up materially change the principal business and affairs of the CorporationCompany, including a deemed liquidation as described in Article IV3.b.ii(a), enter into new lines of business or consent to any exit the Company’s current line of the foregoingbusiness; (b) effectuate a merger enter into an agreement with respect to, or consolidation consummate, any acquisition (whether by merger, stock purchase, asset purchase or otherwise) of another business or Person involving the Corporation with payment, contribution or into any other entityassignment by or to the Company or its subsidiaries of money or assets in an amount exceeding $10,000,000; (c) sellwith respect to the Company only, lease, exclusively license or otherwise dispose of all or substantially all issue Equity Securities of the CorporationCompany from and after the date of this Agreement that, assuming full conversion or exercise of convertible and exercisable securities, would represent in the aggregate either (i) a value equal to or greater than 20% of the Company’s assets; outstanding shares of Common Stock on an as-converted basis as of the date of this Agreement based on the Current Market Price (d) alter, change, amend or repeal any provision of as defined in the Certificate of Incorporation Designations) or Bylaws (ii) a number of the Corporation; (e) alter, change shares of Common Stock equal to or amend any of the preferences, privileges or rights of any series of Preferred Stock, whether by merger, consolidation or otherwise; (f) purchase or redeem any equity securities of the Corporation other than repurchases at no greater than the original cost therefor 20% of equity securities issued to former employees, officers, directors, consultants or other persons who performed services for the Corporation in connection with the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchase; (g) increase or decrease the authorized number of directors constituting the Corporation’s board of directors; (h) authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of any Series F Preferred Stock or any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior or pari passu to the Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock with respect to voting, the payment of dividends, redemptions or distributions upon liquidation or otherwise; (i) declare or pay any cash dividend on any shares of capital stock; (j) grant any lien on any assets of the Corporation in connection with the incurrence of more than $1,000,000 of indebtedness; (k) incur more than $1,000,000 of indebtedness; (l) make any investments or acquisitions in an amount greater than $1,000,000; (m) make any capital expenditures not provided for in the annual budget approved by the Corporation’s board of directors exceeding a cumulative amount of $500,000; or (n) increase the number of shares of Common Stock available outstanding on an as-converted basis as of the date of this Agreement, in each case after taking into account the issuance of the Series A Preferred Stock to the Conversant Investors and the closing of the rights offering contemplated by the A&R Investment Agreement; (d) sell or otherwise Transfer Equity Securities of any Subsidiary of the Company to a Person other than the Company or a wholly owned Subsidiary and with respect to any Subsidiary of the Company, issue or sell any Equity Securities of such Subsidiary; (e) enter into an agreement with respect to (or otherwise consummate) a Change of Control (as defined in the Certificate of Designations); (f) consummate any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company or file a petition under bankruptcy or insolvency law; (g) purchase or redeem or make any stock incentive plandistribution or declare any dividend on Equity Securities of the Company or any of its Subsidiaries ranking junior to the Series A Preferred Stock other than (i) redemptions of or dividends or distributions on the Series A Preferred Stock or in which the Series A Preferred Stock participates pursuant to the Certificate of Designations, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock, and (iii) repurchases or redemptions if at such time any accrued dividends on the Series A Preferred Stock have been paid in full in cash; (h) other than refinancings of existing Indebtedness on substantially the same commercial terms, for any given calendar year, incur Indebtedness such that the aggregate amount of 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, the reference amount of Indebtedness for the prior calendar year shall be the aggregate amount of Indebtedness of the Company immediately following the Closing); and (i) with respect to the Company only, authorize, create, classify, reclassify or issue any Parity Stock (as defined in the Certificate of Designations), any additional shares of Series A Preferred Stock (other than as contemplated by the A&R Investment Agreement) or Senior Stock (as defined in the Certificate of Designations).

Consent Rights. So long as any The vote or consent of the Holders of at least a majority of the shares of the Series F Preferred Stock, Series E A Preferred Stock outstanding at such time, voting together as a separate class, given in person or Series D Preferred Stock remain outstandingby proxy, either in writing without a meeting or by vote at any meeting called for the Corporation shall not without obtaining the prior written affirmative vote purpose, will be necessary for effecting or validating any of the Approving Holdersfollowing actions, whether or not such approval is required pursuant to the Texas Business Organizations Code: (ai) liquidateany amendment, dissolve or wind-up the business and affairs of the Corporation, including a deemed liquidation as described in Article IV3.b.ii(a), or consent to any of the foregoing; (b) effectuate a merger or consolidation of the Corporation with or into any other entity; (c) sell, lease, exclusively license or otherwise dispose of all or substantially all of the Corporation’s assets; (d) alter, change, amend alteration or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation; (e) alter, change or amend any of the preferences, privileges or rights of any series of Preferred Stock, whether by merger, consolidation or otherwise) of any provision of the Articles 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 A Preferred Stock or the Holder thereof; (fii) purchase any amendment or redeem any equity securities of the Corporation other than repurchases at no greater than the original cost therefor of equity securities issued to former employeesalteration (whether by merger, officers, directors, consultants or other persons who performed services for the Corporation in connection with the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchase; (g) increase or decrease the authorized number of directors constituting the Corporation’s board of directors; (h) authorize, issue or enter into any agreement providing for the issuance (contingent consolidation or otherwise) of any Series F Preferred Stock of, or any capital stock supplement (whether by a certificate of designations or otherwise) to, the Articles of Incorporation or any provision thereof, or any other equity securities (action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or exchangeable for reclassify any capital stock security into, or issue, any Parity Stock or Senior Stock or any other equity securities) which are class or series of Capital Stock of the Company ranking senior to, or pari passu to on a parity basis with, the Series F Preferred Stock, Series E A Preferred Stock as to dividend rights or Series D Preferred Stock with respect to votingrights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the payment affairs of dividends, redemptions or distributions upon liquidation or otherwisethe Company; (iiii) declare or pay any cash dividend on any issuance of shares of capital stock; (j) grant any lien on any assets of Series A Preferred Stock after the Corporation Original Issuance Date other than in connection with the incurrence conversion of more than $1,000,000 of indebtednessSeries B Preferred Stock that was issued on the Original Issuance Date; (kiv) incur more than $1,000,000 of indebtednessany action that would cause the Company to cease to be treated as a domestic C corporation for U.S. federal income tax purposes; (lv) make on or prior to the Business Day immediately following the Stockholder Meeting, effect any investments action that would result in (A) a change to the Conversion Rate, (B) the obligation to pay Participating Dividends or acquisitions (C) the payment of cash dividends in respect of the Series B Preferred Stock; and (vi) any incurrence of any Indebtedness of the Company or any of its Subsidiaries (other than (x) the refinancing of any existing Indebtedness in an aggregate principal amount greater than $1,000,000; (m) make any capital expenditures that does not provided for in exceed the annual budget approved by the Corporation’s board of directors exceeding a cumulative then outstanding principal amount of $500,000the Indebtedness refinanced, plus all unpaid accrued or capitalized interest thereon, any prepayment premium applicable thereto, any swap breakage costs or hedge termination costs related thereto, upfront fees and original issue discount on such refinancing indebtedness, and customary fees and expenses relating to such financing, and (y) ordinary course of business working capital draws under the Company’s revolving credit facility) to the extent that, immediately after giving effect to such incurrence or refinancing, the ratio of the consolidated Indebtedness of the Company and its Subsidiaries (net of unrestricted cash and cash equivalents of the Company and its Subsidiaries) to the EBITDA of the Company and its Subsidiaries for the most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would not be less than a ratio of 5.15-to-1 on a pro forma basis after giving effect to such incurrence and the use of the proceeds therefrom; or provided, however, (nA) 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 Common any security (other than the Series A Preferred Stock) into, or the issuance of, Junior Stock available under will not require the vote the holders of the Series A Preferred Stock. For purposes of this Section 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 incentive planof the Company shall be deemed an amendment to the Articles of Incorporation.

Consent Rights. So long as any The vote or consent of the Holders of at least a majority of the shares of the Series F Preferred Stock, Series E B Preferred Stock outstanding at such time, voting together as a separate class, given in person or Series D Preferred Stock remain outstandingby proxy, either in writing without a meeting or by vote at any meeting called for the Corporation shall not without obtaining the prior written affirmative vote purpose, will be necessary for effecting or validating any of the Approving Holdersfollowing actions, whether or not such approval is required pursuant to the Texas Business Organizations Code: (a) liquidateany amendment, dissolve or wind-up the business and affairs of the Corporation, including a deemed liquidation as described in Article IV3.b.ii(a), or consent to any of the foregoing; (b) effectuate a merger or consolidation of the Corporation with or into any other entity; (c) sell, lease, exclusively license or otherwise dispose of all or substantially all of the Corporation’s assets; (d) alter, change, amend alteration or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation; (e) alter, change or amend any of the preferences, privileges or rights of any series of Preferred Stock, whether by merger, consolidation or otherwise) of any provision of the Articles 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 or the Holder thereof; (fb) purchase any amendment or redeem any equity securities of the Corporation other than repurchases at no greater than the original cost therefor of equity securities issued to former employeesalteration (whether by merger, officers, directors, consultants or other persons who performed services for the Corporation in connection with the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchase; (g) increase or decrease the authorized number of directors constituting the Corporation’s board of directors; (h) authorize, issue or enter into any agreement providing for the issuance (contingent consolidation or otherwise) of any Series F Preferred Stock of, or any capital stock supplement (whether by a certificate of designations or otherwise) to, the Articles of Incorporation or any provision thereof, or any other equity securities (action to authorize or create, or increase the number of authorized or issued shares of, or any securities convertible into shares of, or exchangeable for reclassify any capital stock security into, or issue, any Parity Stock or Senior Stock or any other equity securitiesclass 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; (c) which are senior any issuance of shares of Series B Preferred Stock after the Original Issuance Date; (d) on or pari passu prior to the Business Day immediately following the Stockholder Meeting, effect any action that would result in (i) a change to the “Conversion Rate” or (ii) the obligation to pay “Participating Dividends”, in each case, as defined in the Series F A Certificate of Designations; (e) any action that would cause the Company to cease to be treated as a domestic C corporation for U.S. federal income tax purposes; and (f) any incurrence of any Indebtedness of the Company or any of its Subsidiaries (other than (x) the refinancing of any existing Indebtedness in an aggregate principal amount that does not exceed the then outstanding principal amount of the Indebtedness refinanced, plus all unpaid accrued or capitalized interest thereon, any prepayment premium applicable thereto, any swap breakage costs or hedge termination costs related thereto, upfront fees and original issue discount on such refinancing indebtedness, and customary fees and expenses relating to such financing, and (y) ordinary course of business working capital draws under the Company’s revolving credit facility) to the extent that, immediately after giving effect to such incurrence or refinancing, the ratio of the consolidated Indebtedness of the Company and its Subsidiaries (net of unrestricted cash and cash equivalents of the Company and its Subsidiaries) to the EBITDA of the Company and its Subsidiaries for the most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would not be less than a ratio of 5.15-to-1 on a pro forma basis after giving effect to such incurrence and the use of the proceeds therefrom; provided, however, (A) that, with respect to the occurrence of any of the events set forth in clause (a) 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 E B Preferred Stock or Series D Preferred Stock Stock, and in such case such holders shall not have any voting rights with respect to voting, the payment occurrence of dividends, redemptions or distributions upon liquidation or otherwise; (i) declare or pay any cash dividend on any shares of capital stock; (j) grant any lien on any assets of the Corporation events set forth in connection with clause (a) above and (B) that the incurrence of more than $1,000,000 of indebtedness; (k) incur more than $1,000,000 of indebtedness; (l) make any investments authorization or acquisitions creation of, or the increase in an amount greater than $1,000,000; (m) make any capital expenditures not provided for in the annual budget approved by the Corporation’s board of directors exceeding a cumulative amount of $500,000; or (n) increase the number of authorized or issued shares of, or any securities convertible into shares of, or the reclassification of Common any security (other than the Series B Preferred Stock) into, or the issuance of, Junior Stock available under will not require the vote the holders of the Series B Preferred Stock. For purposes of this Section 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 incentive planof the Company shall be deemed an amendment to the Articles of Incorporation.

Consent Rights. So long as any shares of From and after the Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock remain outstandingOriginal Issue Date, the Corporation shall not take, and shall cause its Subsidiaries not to take, any of the actions set forth below (including by means of merger, consolidation, reorganization, recapitalization, amendment to the Certificate of Incorporation or other organizational documents or otherwise) without obtaining the prior written affirmative vote or written consent of holders, voting exclusively as a single class, representing at least a majority of the Approving Holdersoutstanding shares of Series B Preferred Stock: (a) liquidateauthorize, dissolve create or wind-up issue additional preferred stock, whether ranking senior, pari passu or junior to the business and affairs of the Corporation, including a deemed liquidation as described in Article IV3.b.ii(a), or consent to any of the foregoingSeries B Preferred Stock; (b) effectuate a merger reclassify Common Stock into preferred stock, whether ranking senior, pari passu or consolidation of junior to the Corporation with or into any other entitySeries B Preferred Stock; (c) sellamend, leasealter, exclusively license repeal or otherwise dispose modify any provision the Certificate of all Incorporation (including this Certificate of Designations) or substantially all any Subsidiary’s organizational documents, in each case in any manner that would adversely affect the powers, preferences, rights or privileges of the Corporation’s assetsany holder of Series B Preferred Stock; (d) alterdeclare or pay any dividend or distribution, change, amend or repeal purchase or redeem any provision Equity Securities of the Corporation (other than the redemption of Series B Preferred Stock in accordance with the terms of this Certificate of Incorporation Designations), other than (i) the repurchase of any equity-based awards issued to employees (or Bylaws prospective employees who have accepted an offer of employment) of the CorporationCorporation or any of its Subsidiaries, pursuant to plans that existed as of the Original Issue Date or (ii) the cashless exercise of warrants to purchase Common Stock outstanding as of the Original Issue Date or any warrants permitted by Section 10(f); (e) alter, change or amend any of the preferences, privileges or rights of any series of Preferred Stock, whether by merger, consolidation or otherwise;[Reserved]; (f) purchase issue Common Stock or redeem any equity securities other Equity Securities of the Corporation or its Subsidiaries, other than repurchases at no greater than (i) the original cost therefor Corporation’s issuance or grant of equity securities issued shares of Common Stock or options to former employeespurchase shares Common Stock, officers, directors, consultants or other persons equity-based securities, to employees (or prospective employees who performed services for have accepted an offer of employment) of the Corporation or any of its Subsidiaries, pursuant to plans in connection with existence as of the cessation Original Issue Date or (ii) the Corporation’s issuance of warrants, or other securities upon the exercise, exchange or conversion of any securities that are in each case exercisable or exchangeable for, or convertible into, shares of Common Stock and which securities or the obligations to issue such warrants were outstanding as of the Original Issue Date, provided, that such issuance, exercise, exchange or conversion is effected pursuant to the terms of such employment obligation or service and pursuant to an agreement with such party permitting such a repurchase;securities, as applicable, in each case as in effect on the Original Issue Date; (g) increase or decrease the authorized number of directors constituting the Corporation’s board of directors[Reserved]; (h) authorize, issue or enter into take any agreement providing for of the issuance (contingent or otherwise) of any Series F Preferred Stock or any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior or pari passu to the Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock with respect to voting, the payment of dividends, redemptions or distributions upon liquidation or otherwise;actions set forth on Schedule I hereto; or (i) declare or pay agree to do any cash dividend on any shares of capital stock; (j) grant any lien on any assets of the Corporation in connection with the incurrence of more than $1,000,000 of indebtedness; (k) incur more than $1,000,000 of indebtedness; (l) make any investments or acquisitions in an amount greater than $1,000,000; (m) make any capital expenditures not provided for in the annual budget approved actions prohibited by the Corporation’s board of directors exceeding a cumulative amount of $500,000; or (n) increase the number of shares of Common Stock available under any stock incentive planthis Section 10.

Consent Rights. So For so long as any EMG beneficially owns at least twenty-five percent (25%) of the outstanding shares of the Series F Preferred Common Stock, Series E Preferred Stock in addition to any other vote or Series D Preferred Stock remain outstandingauthorization required by law, the Corporation parties agree that the Company shall not without obtaining the prior written affirmative vote not, and shall take all actions necessary to cause its Subsidiaries to not, directly or indirectly, including by merger or consolidation or otherwise, do any of the Approving Holdersfollowing without the approval of Parent, in addition to the Board’s approval (or the approval of the required governing body of any Subsidiary of the Company) where applicable: (a) liquidateamending, dissolve restating, or wind-up amending and restating the business and affairs Certificate of Incorporation or bylaws of the Corporation, including a deemed liquidation as described in Article IV3.b.ii(a), or consent to any of the foregoingCompany; (b) effectuate a merger issuing any equity security or consolidation securities convertible into or exercisable or exchangeable for any equity securities of the Corporation Company; (c) merging or consolidating with or into any other entity; , or transferring (c) sell, by lease, exclusively license assignment, sale or otherwise dispose of otherwise) all or substantially all of the CorporationCompany’s and its Subsidiaries’ assets, taken as a whole, to another entity, or entering into or agreeing to undertake any transaction or series of related transactions as a result of which any Person, other than EMG would acquire, directly or indirectly, more than 50% of the capital stock of the Company (other than, in each case, transactions among the Company and its wholly owned Subsidiaries); (d) alterentering into (i) any agreement providing for the acquisition or divestiture of assets or equity securities of any Person, changewhether in a single transaction or a series of related transactions, amend in each case providing for aggregate consideration in excess of $50 million or repeal (ii) any provision agreement providing for the acquisition or divestiture of assets or equity securities of any Person, whether in a single transaction or a series of related transactions, relating to any business, including any commodity, other than metallurgical coal or thermal coal when extracted or sold as an adjunct to the Certificate extraction or sale of Incorporation or Bylaws of the Corporationmetallurgical coal; (e) alter, change entering into (i) any joint venture or amend any similar business alliance having a fair market value as of the preferencesdate of formation thereof (as reasonably determined by the Board) in excess of $50 million or (ii) any joint venture or similar business alliance relating to any business, privileges including any commodity, other than metallurgical coal or rights thermal coal when extracted or sold as an adjunct to the extraction or sale of any series of Preferred Stock, whether by merger, consolidation or otherwisemetallurgical coal; (f) purchase initiating a voluntary liquidation, dissolution, receivership, bankruptcy or redeem other insolvency proceeding involving (i) the Company or (ii) any equity securities Subsidiary the assets or net income of which are greater than ten percent (10%) of the Corporation other than repurchases at no greater than Company’s consolidated total assets or net income, respectively (or, if subject to the original cost therefor reporting requirements of equity securities issued to former employeesthe Exchange Act, officers, directors, consultants or other persons who performed services for a subsidiary that is a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X under the Corporation in connection with the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchaseExchange Act); (g) increase any redemption, acquisition or decrease other purchase of any shares of Common Stock or CHESS Depositary Interests (a “Repurchase”) other than Repurchases in accordance with any existing compensation plan of the authorized number Company or any Subsidiary or a Repurchase from an employee in connection with such employee’s termination of directors constituting employment with the Corporation’s board of directorsCompany or any Subsidiary; (h) authorize, issue any payment or enter declaration of any dividend or other distribution on any shares of Common Stock or CHESS Depositary Interests or entering into any agreement providing for recapitalization transaction the issuance (contingent or otherwise) primary purpose of any Series F Preferred Stock or any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior or pari passu is to pay a dividend, except in each case in accordance with the Series F Preferred Stockdividend policy of the Company as disclosed in the prospectus, Series E Preferred Stock or Series D Preferred Stock with respect to votingdated September 24, the payment of dividends, redemptions or distributions upon liquidation or otherwise2018; (i) declare the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or pay any cash dividend on any shares the guarantee of capital stockindebtedness of another Person) in an aggregate principal amount in excess of $50 million, other than (x) the incurrence of trade payables arising in the ordinary course of business of the Company and its Subsidiaries or (y) borrowings under the Company’s revolving credit facility (or amendments, extensions, or replacements thereof); (j) grant any lien on currency, commodity or interest rate hedging, derivative or trading transactions of any assets kind, except transactions which are conducted in accordance with a policy approved by both Parent and a majority of the Corporation in connection with the incurrence of more than $1,000,000 of indebtednessBoard; (k) incur more than $1,000,000 terminating the employment of indebtednessthe Chief Executive Officer of the Company or hiring a new Chief Executive Officer of the Company; (l) make the adoption of an annual business plan of the Company and its Subsidiaries, taken as a whole (the “Business Plan”), that contemplates or would result in the following: (i) any investments reduction of 1 million tonnes or acquisitions more in planned annual production for the applicable budget year from the prior year’s production; (ii) any decision to undertake extraction or sale of a commodity other than (A) metallurgical coal, or (B) thermal coal when extracted or sold as an amount greater than $1,000,000adjunct to the extraction or sale of metallurgical coal; or (iii) undertaking any new greenfield development projects; (m) make any capital expenditures not provided for in amendments to, or departures from, the annual budget then-effective Business Plan approved by the Corporation’s board Board that contemplate or would result in the following: (i) an increase or decrease in aggregate capital expenditures of directors exceeding thirty percent (30%) or more as compared to the amount set forth in such Business Plan; (ii) a cumulative decrease in total production for any particular mine of ten percent (10%) or more as compared to the amount of $500,000set forth in such Business Plan; or (iii) that would result in any of the actions contemplated by paragraph (l) above. (n) increase engage in any transaction with or involving any Affiliate of the number Company or any Affiliate of shares any stockholder of Common Stock available under the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company (in each case, other than EMG), other than any stock incentive plantransaction or series of related transactions in the ordinary course of business and on arms- length third-party terms and in an amount less than $10 million; provided, however that written notice shall be given to the Board at least five (5) business days prior to entering into any related party transaction.

Consent Rights. So long as any the Conversant Investors, together with their Affiliates and Permitted Transferees, Beneficially Own at least 15% of the outstanding shares of the Series F Preferred Stock, Series E Preferred Common Stock or Series D Preferred Stock remain outstandingon an as-converted basis, the Corporation Company shall not not, without obtaining the prior approval or written affirmative vote consent of the Approving Holders:Investor A (such approval or consent not to be unreasonably withheld, conditioned or delayed): (a) liquidate, dissolve or wind-up materially change the principal business and affairs of the CorporationCompany, including a deemed liquidation as described in Article IV3.b.ii(a), enter into new lines of business or consent to any exit the Company’s current line of the foregoingbusiness; (b) effectuate a merger enter into an agreement with respect to, or consolidation consummate, any acquisition (whether by merger, stock purchase, asset purchase or otherwise) of another business or Person involving the Corporation with payment, contribution or into any other entityassignment by or to the Company or its subsidiaries of money or assets in an amount exceeding $10,000,000; (c) sellwith respect to the Company only, lease, exclusively license or otherwise dispose of all or substantially all issue Equity Securities of the CorporationCompany from and after the date of this Agreement that, assuming full conversion or exercise of convertible and exercisable securities, would represent in the aggregate either (i) a value equal to or greater than 20% of the Company’s assets; outstanding shares of Common Stock on an as-converted basis as of the date of this Agreement based on the Current Market Price (d) alter, change, amend or repeal any provision of as defined in the Certificate of Incorporation Designations) or Bylaws (ii) a number of the Corporation; (e) alter, change shares of Common Stock equal to or amend any of the preferences, privileges or rights of any series of Preferred Stock, whether by merger, consolidation or otherwise; (f) purchase or redeem any equity securities of the Corporation other than repurchases at no greater than the original cost therefor 20% of equity securities issued to former employees, officers, directors, consultants or other persons who performed services for the Corporation in connection with the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchase; (g) increase or decrease the authorized number of directors constituting the Corporation’s board of directors; (h) authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of any Series F Preferred Stock or any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior or pari passu to the Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock with respect to voting, the payment of dividends, redemptions or distributions upon liquidation or otherwise; (i) declare or pay any cash dividend on any shares of capital stock; (j) grant any lien on any assets of the Corporation in connection with the incurrence of more than $1,000,000 of indebtedness; (k) incur more than $1,000,000 of indebtedness; (l) make any investments or acquisitions in an amount greater than $1,000,000; (m) make any capital expenditures not provided for in the annual budget approved by the Corporation’s board of directors exceeding a cumulative amount of $500,000; or (n) increase the number of shares of Common Stock available outstanding on an as-converted basis as of the date of this Agreement, in each case after taking into account the issuance of the Series A Preferred Stock to the Conversant Investors and the closing of the rights offering contemplated by the Investment Agreement; (d) sell or otherwise Transfer Equity Securities of any Subsidiary of the Company to a Person other than the Company or a wholly owned Subsidiary and with respect to any Subsidiary of the Company, issue or sell any Equity Securities of such Subsidiary; (e) enter into an agreement with respect to (or otherwise consummate) a Change of Control (as defined in the Certificate of Designations); (f) consummate any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company or file a petition under bankruptcy or insolvency law; (g) purchase or redeem or make any stock incentive plandistribution or declare any dividend on Equity Securities of the Company or any of its Subsidiaries ranking junior to the Series A Preferred Stock other than (i) redemptions of or dividends or distributions on the Series A Preferred Stock or in which the Series A Preferred Stock participates pursuant to the Certificate of Designations, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock, and (iii) repurchases or redemptions if at such time any accrued dividends on the Series A Preferred Stock have been paid in full in cash; (h) other than refinancings of existing Indebtedness on substantially the same commercial terms, for any given calendar year, incur Indebtedness such that the aggregate amount of 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],2 the reference amount of Indebtedness for the prior calendar year shall be the aggregate amount of Indebtedness of the Company immediately following the Closing); and 2 To be updated to the extent the Closing does not occur in 2021. (i) with respect to the Company only, authorize, create, classify, reclassify or issue any Parity Stock (as defined in the Certificate of Designations), any additional shares of Series A Preferred Stock (other than as contemplated by the Investment Agreement) or Senior Stock (as defined in the Certificate of Designations).

Consent Rights. So long as any the Conversant Parties Beneficially Own at least 15% of the outstanding shares of the Series F Preferred Stock, Series E Preferred Common Stock or Series D Preferred Stock remain outstandingon an as-converted basis, the Corporation Company shall not not, without obtaining the prior approval or written affirmative vote consent of the Approving Holders:Investor A (such approval or consent not to be unreasonably withheld, conditioned or delayed): (a) liquidate, dissolve or wind-up materially change the principal business and affairs of the CorporationCompany, including a deemed liquidation as described in Article IV3.b.ii(a), enter into new lines of business or consent to any exit the Company’s current line of the foregoingbusiness; (b) effectuate a merger enter into an agreement with respect to, or consolidation consummate, any acquisition (whether by merger, stock purchase, asset purchase or otherwise) of another business or Person involving the Corporation with payment, contribution or into any other entityassignment by or to the Company or its subsidiaries of money or assets in an amount exceeding $10,000,000; (c) sellwith respect to the Company only, lease, exclusively license or otherwise dispose of all or substantially all issue Equity Securities of the CorporationCompany from and after the date of this Agreement that, assuming full conversion or exercise of convertible and exercisable securities, would represent in the aggregate either (i) a value equal to or greater than 20% of the Company’s assets; outstanding shares of Common Stock on an as-converted basis as of the date of this Agreement based on the Current Market Price (d) alter, change, amend or repeal any provision of as defined in the Certificate of Incorporation Designations) or Bylaws (ii) a number of the Corporation; (e) alter, change shares of Common Stock equal to or amend any of the preferences, privileges or rights of any series of Preferred Stock, whether by merger, consolidation or otherwise; (f) purchase or redeem any equity securities of the Corporation other than repurchases at no greater than the original cost therefor 20% of equity securities issued to former employees, officers, directors, consultants or other persons who performed services for the Corporation in connection with the cessation of such employment or service and pursuant to an agreement with such party permitting such a repurchase; (g) increase or decrease the authorized number of directors constituting the Corporation’s board of directors; (h) authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of any Series F Preferred Stock or any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior or pari passu to the Series F Preferred Stock, Series E Preferred Stock or Series D Preferred Stock with respect to voting, the payment of dividends, redemptions or distributions upon liquidation or otherwise; (i) declare or pay any cash dividend on any shares of capital stock; (j) grant any lien on any assets of the Corporation in connection with the incurrence of more than $1,000,000 of indebtedness; (k) incur more than $1,000,000 of indebtedness; (l) make any investments or acquisitions in an amount greater than $1,000,000; (m) make any capital expenditures not provided for in the annual budget approved by the Corporation’s board of directors exceeding a cumulative amount of $500,000; or (n) increase the number of shares of Common Stock available outstanding on an as-converted basis as of the date of this Agreement, in each case after taking into account the issuance of the Series A Preferred Stock to the Conversant Investors and the closing of the rights offering contemplated by the A&R Investment Agreement; (d) sell or otherwise Transfer Equity Securities of any Subsidiary of the Company to a Person other than the Company or a wholly owned Subsidiary and with respect to any Subsidiary of the Company, issue or sell any Equity Securities of such Subsidiary; (e) enter into an agreement with respect to (or otherwise consummate) a Change of Control (as defined in the Certificate of Designations); (f) consummate any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company or file a petition under bankruptcy or insolvency law; (g) purchase or redeem or make any stock incentive plandistribution or declare any dividend on Equity Securities of the Company or any of its Subsidiaries ranking junior to the Series A Preferred Stock other than (i) redemptions of or dividends or distributions on the Series A Preferred Stock or in which the Series A Preferred Stock participates pursuant to the Certificate of Designations, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock, and (iii) repurchases or redemptions if at such time any accrued dividends on the Series A Preferred Stock have been paid in full in cash; (h) other than refinancings of existing Indebtedness on substantially the same commercial terms, for any given calendar year, incur Indebtedness such that the aggregate amount of 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],2 the reference amount of Indebtedness for the prior calendar year shall be the aggregate amount of Indebtedness of the Company immediately following the Closing); and (i) with respect to the Company only, authorize, create, classify, reclassify or issue any Parity Stock (as defined in the Certificate of Designations), any additional shares of Series A Preferred Stock (other than as contemplated by the A&R Investment Agreement) or Senior Stock (as defined in the Certificate of Designations).