Common use of Preferred Stock Clause in Contracts

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

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

Preferred Stock. If the Company shall fail to redeem all of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C The Preferred Stock may be issued from time to time in one or more series, each of such series to consist of such number of shares and to have under such terms, rights, powers and preferences, and the qualifications and limitations with respect thereto, as stated or expressed herein. As of the effective date of this Certificate of Designation and such holder’s applicable Purchase Agreement, Incorporation^ 5,000,000 shares of the Applicable Redemption Price payable in respect of such unredeemed Series C authorized Preferred Stock shall bear interest at of the rate Corporation are hereby designated Series 1 Convertible Preferred Stock (the “Series 1 Preferred”). The rights, preferences, powers, privileges and restrictions, qualifications and limitations granted to and imposed on the Series 1 Preferred Stock are as set forth below in this Article Fourth. Unless otherwise indicated, references to “Sections” or “Subsections” in this Part B of 1.0% per month (prorated this Article Fourth refer to sections and subsections of Part B of this Article Fourth. The Board of Directors is authorized, subject to any limitations prescribed by law, to designate and provide for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder issuance of shares of Series C additional series of Preferred Stock submitted for redemptionon or following the date hereof by filing a certificate pursuant to the DGCL (such Preferred Stock, such holder shall have the option (the “Void Optional Redemption OptionBlank Check Preferred Stock” and each certificate for such applicable Blank Check Preferred Stock, being hereafter referred to as a “Preferred Stock Designation”) to), to establish from time to time the number of shares to be included in lieu of redemptioneach such series, require and to fix the Company to promptly return to such holder(s) all designation, powers, preferences and rights of the shares of Series C each such series and any qualifications, limitations or restrictions thereof. In the event that at any time the Board of Directors shall have established and designated one or more series of Blank Check Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt consisting of such Void Optional Redemption Notice(s) and prior to payment a number of shares less than all of the full Applicable Redemption Price to such holder, (i) the notice(s) authorized number of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which Stock, the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned remaining authorized shares of Series C Blank Check Preferred Stock shall be adjusted deemed to be shares of an undesignated series of Blank Check Preferred Stock unless and until designated by the lesser Board of (A) Directors as being part of a series previously established or a new series then being established by the Conversion Price and (B) Board of Directors. Notwithstanding the lowest Closing Bid Price during fixing of the period beginning on number of shares constituting a particular series, the date on which Board of Directors may at any time thereafter authorize an increase or decrease in the notice number of redemption is delivered and ending on shares of any such series except as set forth in the date on which Preferred Stock Designation for such series of Blank Check Preferred Stock. In case the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment number of shares of any series shall be made if so decreased, the shares constituting such adjustment would result in an increase decrease shall resume the status of authorized undesignated Preferred Stock unless and until designated by the Conversion Price then in effect. A holder’s delivery Board of Directors as being a part of a Void Optional Redemption Notice and exercise series previously established or a new series then being established by the Board of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionDirectors.

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

Preferred Stock. If The approval of a majority of the Company shall fail Holders of the Series A-1 Preferred Stock, voting together as a separate class, will be required for the following actions by the Company: o Amendments to redeem the Company's Certificate of Incorporation or Bylaws that would adversely affect the rights or preferences of the Series A Preferred Stock; o Any amendment to the certificate of designations for the Series A or the Series B Preferred Stock; o Any issuances of shares of Class B Stock, other than upon the conversion of Series A or B Preferred Stock; o So long as the outstanding shares of Series A-1 Preferred Stock are 25% or more of the Series A-1 Preferred Stock issued on the initial issuance date (subject to adjustments for stock splits, stock dividends, etc.), any merger, consolidation, other business combination or any sale of all or substantially all of the assets of the Company; o Any issuance of senior or pari passu equity securities (other than shares of Series C A Preferred Stock submitted and Series B Preferred Stock in accordance with the certificate of designation therefor in effect on the date of issuance of the Series A Preferred Stock); o Any repurchase or redemption of equity securities (other than options, warrants and equity securities convertible into or exchangeable for redemption equity securities), other than Series B Preferred Stock in accordance with the certificate of designation therefor in effect on the date of issuance of the Series A Preferred Stock; o Incurrence of indebtedness or guaranties of indebtedness (other than pursuant to the $825 million senior secured credit facility and the $200 million of senior subordinated notes issued to Rite Aid, and any extensions, renewals and refinancings thereof) that would result in the Company's ratio of pro forma adjusted LTM EBITDA to interest expense being less than 1.50:1.00. The Company will have a dispute as to 30-day cure period before the arithmetic calculation remedies for the breach of this provision will be triggered; o Voluntary filing for bankruptcy, liquidation or dissolution or winding up of Company; o Any increase in the size of the Applicable Redemption Price)Board, and any decrease in addition to any remedy such holder the number of Series C Preferred Stock may have under this Certificate Class A directors of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall and o Transactions with affiliates involving amounts in excess of $5 million Board of Directors The Board will have eleven members, divided into the following classes: three Class A directors, al of whom will be made if such adjustment would result in an increase officers and employees of the Conversion Price then in effect. A holder’s delivery Company; two Class B-1 directors and two Class B-2 directors (collectively, and including the Class B directors under the certificates of a Void Optional Redemption Notice designations for the Class B Stock, the "Class B directors"), all of whom will be designated as provided below; three Class C directors, all of whom will be "independent" directors within the meaning of the Nasdaq National Market rules; and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments one Class D director who will be designated as provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionbelow.

Preferred Stock. If This corporation’s board of directors (the Company “Board of Directors”) shall fail have the full authority permitted by law to redeem all divide the authorized and unissued shares of Preferred Stock into series, and to provide for the issuance of such shares (in an aggregate amount not exceeding the aggregate number of shares of Preferred Stock authorized by this corporation’s articles of incorporation (as amended or restated from time to time) (the or these “Articles”)), as determined from time to time by the Board of Directors and stated, before the issuance of any shares thereof, in the resolution or resolutions providing for the issuance thereof. The Board of Directors shall have the authority to fix and determine and to amend the number of shares of any series of Preferred Stock that is wholly unissued or to be established and to fix and determine and to amend the designation, preferences, voting powers and limitations, and the relative, participating, optional or other rights, of any series of shares of Preferred Stock that is wholly unissued or to be established, including, without limiting the generality of the Series C foregoing, the voting rights relating to shares of such series of Preferred Stock submitted for redemption (other than pursuant Stock, the rate of dividend to a dispute as to the arithmetic calculation which holders of the Applicable Redemption Price), in addition to any remedy shares of such holder series of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreementbe entitled, the Applicable Redemption Price payable in respect rights of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder holders of shares of Series C such series of Preferred Stock submitted in the event of liquidation, dissolution or winding up of the affairs of this corporation, the rights of holders of shares of such series of Preferred Stock to convert or exchange shares of such series of Preferred Stock for redemptionshares of any other capital stock or for any other securities, such holder shall have the option (the “Void Optional Redemption Option”) toproperty or assets of this corporation, in lieu of redemption, require the Company to promptly return to such holder(s) all of and whether or not the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt series of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to redeemable and, if so, the lesser term and conditions of such redemption. Before this corporation shall initially issue shares of a series of Preferred Stock created under RCW 23B.06.020 (Aor any successor provision thereto) of the Conversion Price and (B) Washington Business Corporation Act, articles of amendment setting forth the lowest Closing Bid Price during terms of such series in a form meeting the period beginning on the date on which the notice requirements of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment RCW 23B.06.020 shall be made if such adjustment would result in an increase filed with the Secretary of State of the Conversion Price then State of Washington in effectthe manner prescribed by the Washington Business Corporation Act, and shall be effective without shareholder approval. A holder’s delivery Unless otherwise specifically provided in the resolution establishing any series of Preferred Stock, the Board of Directors shall further have the authority, after the issuance of shares of a Void Optional Redemption Notice and exercise series whose number it has designated, to amend the resolution establishing such series to decrease the number of its rights following shares of that series, but not below the number of shares of such notice shall not affect series then outstanding. Notwithstanding the Company’s obligations to make any payments which have accrued foregoing provisions of this Section 2.2, prior to the date Threshold Date, this corporation shall not, without the approval of the holders of at least a majority of the outstanding shares of Class B Common Stock, considered as a separate voting group, or the written agreement of the holders of at least a majority of the outstanding shares of Class B Common Stock: (i) initially issue any series of Preferred Stock, or any other security convertible into or exercisable for any such notice. For series of Preferred Stock, including by merger or otherwise, or (ii) amend the avoidance designation, preferences, voting powers and limitations, or rights, of doubtany series of Preferred Stock, payments provided or any other security convertible into or exercisable for any such series of Preferred Stock, unless, in the case of either clause (i) or (ii) above, such action is approved by the Board of Directors including at least one of the Founders (as defined in Section 2.3(g) of these Articles) acting in his capacity as a director of this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactioncorporation.

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

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

Preferred Stock. If Immediately prior to the Company shall fail to redeem all Effective Time, each Share of the Series C Preferred Stock submitted for redemption (other than pursuant issued and outstanding at such time shall automatically be canceled and shall cease to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such exist and each holder of Series C Preferred Stock may have under this Certificate a Share of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted entitled to receive his/her/its Preferred Stock Per Share Amount of the Merger Consideration as set forth in the Allocation Schedule in accordance with this Agreement, and each holder thereof shall cease to have any rights with respect thereto except the right to receive the consideration described in this Section 2.1(b)(i), provided that: (1) To the extent that upon the payment of the Mobility First Note pursuant to Section 2.4(b), after the payment of any Debt Repayment Amount and any setoffs or adjustments pursuant to Section 2.1(c)(i)(1) and Section 2.1(c)(i)(2) hereof and pursuant to the lesser terms of the Mobility First Note, the remaining amount available for payment from the Mobility First Note to all of the holders of Shares of Preferred Stock with respect to all Shares of Preferred Stock (Aincluding all prior payments) held by such holders is less than the Conversion Price aggregate amount set forth in Column AQ of the “Waterfall” tab of the Allocation Schedule (as reflected at the Closing and (B) prior to any post-Closing adjustments), then each holder of Shares of Preferred Stock shall be entitled to receive from the lowest Closing Bid Price during the period beginning on the date on which the notice Mobility First Note payment with respect to such holder’s Shares of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered Preferred Stock an amount in cash up to the Companyamount set forth opposite such holder’s name in Column AQ of the “Waterfall” tab of the Allocation Schedule (as reflected at the Closing and prior to any post-Closing adjustments), prior to the payment of any amount out of the Mobility First Note to the holders of Shares of Common Stock pursuant to Section 2.1(b)(ii), Optionholders and Non-Employee Optionholders pursuant to Section 2.1(b)(iii), Carve-Out Participants and Non-Employee Carve-Out Participants pursuant to 2.1(b)(iv) and Warrantholders pursuant to Section 2.1(b)(v). (2) To the extent that upon the payment of the Mobility Second Note pursuant to Section 2.4(c), after the payment of any Debt Repayment Amount and any setoffs or adjustments pursuant to Section 2.1(c)(i)(1), Section 2.1(c)(i)(2) and Section 2.1(c)(i)(3) hereof and pursuant to the terms of the Mobility First Note and Mobility Second Note, the remaining amount available for payment from the Mobility Second Note to all holders of Shares of Preferred Stock with respect to all Shares of Preferred Stock (including all prior payments) held by such holder is less than the aggregate amount set forth in Column AQ of the “Waterfall” tab of the Allocation Schedule (as reflected at the Closing and prior to any post-Closing adjustments), then each holder of Shares of Preferred Stock shall be entitled to receive from the Mobility Second Note payment with respect to such holder’s Shares of Preferred Stock, an amount equal to the amount set forth opposite such holder’s name in Column AQ of the “Waterfall” tab of the Allocation Schedule (as reflected at the Closing and prior to any post-Closing adjustments) less amounts previously paid to such holder pursuant to Section 2.1(b)(i)(1), prior to the payment of any amount to the holders of Shares of Common Stock pursuant to Section 2.1(b)(ii), Optionholders and Non-Employee Optionholders pursuant to Section 2.1(b)(iii), Carve-Out Participants and Non-Employee Carve-Out Participants pursuant to Section 2.1(b)(iv) and Warrantholders pursuant to Section 2.1(b)(v). Thereafter, any remaining amounts from the Mobility Second Note shall be allocated to the holders of Shares of Common Stock, Optionholders, Non-Employee Optionholders, Carve-Out Participants, Non-Employee Optionholders and Warrantholders in accordance with their Non-Preferred Pro Rata Portion. (3) To the extent that upon the payment of the Stock Consideration, after the payment of any Debt Repayment Amount and any setoffs or adjustments pursuant to Section 2.1(c)(i)(1), Section 2.1(c)(i)(2) and Section 2.1(c)(i)(3) hereto, the remaining amount available for payment to each holder of a Share of Preferred Stock with respect to each Share of Preferred Stock (including all prior payments) held by such holder is less than the Preferred Stock Per Share Amount, then each such holder shall be entitled to receive from the Stock Consideration with respect to such holder’s Shares of Preferred Stock, that number of shares of Stock Consideration having a value (as determined in accordance with Section 2.1(c)(i)(4) below) equal to the dollar value set forth in Column AQ of the “Waterfall” tab of the Allocation Schedule (as reflected at the Closing and prior to any post-Closing adjustments), less amounts previously paid pursuant to Section 2.1(b)(i)(1) and Section 2.1(b)(i)(2), prior to the issuance of any shares of Stock Consideration to the holders of Shares of Common Stock pursuant to Section 2.1(b)(ii), Optionholders and Non-Employee Optionholders pursuant to Section 2.1(b)(iii), Carve-Out Participants and Non-Employee Carve-Out Participants pursuant to Section 2.1(b)(iv) and Warrantholders pursuant to Section 2.1(b)(v); thereafter any remaining shares of Stock Consideration to be issued to the Equityholders shall be allocated in accordance with their Pro Rata Portion pursuant to this Section 2.1(b); provided that in no adjustment event shall any holder of Shares of Preferred Stock be made if entitled to receive more than such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery Preferred Stock Per Share Amount with respect to each Share of a Void Optional Redemption Notice Preferred Stock held by such holder. (4) The provisions of Section 2.1(b)(i)(1), Section 2.1(b)(i)(2) and exercise Section 2.1(b)(i)(3) shall only be used for purposes of its rights following such notice shall allocating (and not affect increasing the Company’s obligations aggregate amount of) any individual payment pursuant to make any payments which have accrued prior to the date of such noticeSection 2.1(b). For the avoidance of doubt, payments provided for in at such time as the holders of Shares of Preferred Stock have received the Preferred Stock Per Share Amount of the Merger Consideration with respect to each Share of Preferred Stock held by such holders pursuant to this Section 8 2.1(b), any remaining amounts of Merger Consideration shall have priority be allocated to payments to other stockholders the holders of Shares of Common Stock, Optionholders, Non-Employee Optionholders, Carve-Out Participants, Non-Employee Carve-Out Participants and Warrantholders in connection accordance with a Major Transactiontheir Non-Preferred Pro Rata Portion.

Preferred Stock. If in the Company sole discretion of Citicorp USA, --------------- treating the Advance as a Loan is unacceptable to Citicorp USA, the Advance shall fail be treated as follows: (a) to redeem the extent that there are any authorized but unissued shares of the Successor Entity's Series B Preferred Stock available for issue, the Advance shall be applied to the issuance of new shares of Series B Preferred Stock of the Successor Entity at an issue price of $100,000 per share; (b) to the extent that there are no authorized but unissued shares of the Successor Entity's Series B Preferred Stock available for issue, the Advance shall be applied to the issuance of new shares of Series C Convertible Preferred Stock of the Successor Entity at an issue price of $100,000 per share; (i) the Series B Preferred Stock of the Successor Entity shall have the following rights, preferences and privileges: (A) the Series B Preferred Stock shall have an authorized number of shares equal to 500 shares ($50,000,000 original issue amount) (B) the Series B Preferred Stock shall have a liquidation value equal to its original issue price plus all cumulated but unpaid dividends accrued thereon, (C) the Series B Preferred Stock shall be non-voting except as required by law, (D) the Series B Preferred Stock shall be entitled to dividends at an annual rate of 11.7% of the liquidation value of the Series B Preferred Stock, which dividends shall be declared and cumulate quarterly but not be paid until the 10th anniversary of the date of this Agreement (unpaid dividends to be added to the liquidation value of the Series B Preferred Stock), (E) the Series B Preferred Stock shall be redeemable for its liquidation value (x) at any time at the election of the Successor Entity (any such shares redeemed shall be added to treasury and be available for future issue), and (y) on the 10th anniversary of this Agreement, at the election of the holders thereof, (F) the Series B Preferred Stock shall rank as to payment of dividends and on liquidation junior to the Series A Preferred Stock of the Successor Entity, pari passu with the Series C Convertible Preferred Stock of the Successor Entity, and senior to all classes of common stock of the Successor Entity, (G) the Series B Preferred Stock shall contain no covenants or events of default, and (H) the Series B Preferred Stock shall have no rights to be converted into any other equity security of the Successor Entity; (ii) the Series C Convertible Preferred Stock of the Successor Entity shall have the following rights, preferences and privileges: (A) the Series C Convertible Preferred Stock shall have an authorized number of shares equal to 5,000 shares ($500,000,000 original issue amount) (B) the Series C Convertible Preferred Stock shall have a liquidation value equal to its original issue price plus all cumulated but unpaid dividends accrued thereon, (C) the Series C Convertible Preferred Stock shall be non-voting except as required by law, (D) the Series C Convertible Preferred Stock shall be entitled to dividends at an annual rate of 11.7% of the liquidation value of the Series C Convertible Preferred Stock, which dividends shall be declared and cumulate quarterly but not be paid until the 10th anniversary of the date of this Agreement (unpaid dividends to be added to the liquidation value of the Series C Convertible Preferred Stock), (E) the Series C Convertible Preferred Stock submitted shall be redeemable for redemption its liquidation value (other than pursuant any such shares redeemed shall be added to a dispute treasury and be available for future issue), (x) at any time at the election of the Successor Entity, and (y) on the 10th anniversary of this Agreement, at the election of the holders thereof, (F) the Series C Convertible Stock shall rank as to payment of dividends and on liquidation junior to the arithmetic calculation Series A Preferred Stock of the Applicable Redemption Price)Successor Entity, in addition pari passu with the Series B Preferred Stock of the Successor Entity, and senior to all classes of common stock of the Successor Entity, (G) the Series B Preferred Stock shall contain no covenants or events of default, and (H) the Series C Convertible Preferred Stock shall be convertible, at the election of the holder thereof at any remedy time after its original issue date as follows: (aa) if at the time notice of conversion is given to the Successor Entity, there are any authorized but unissued shares of Series B Preferred Stock available for issue, such holder shares of Series C Convertible Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock to be converted shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder be converted into that number of shares of Series C B Preferred Stock submitted determined by dividing the aggregate liquidation value of the shares to be converted by $100,000, (bb) if at the time notice of conversion is given to the Successor Entity, there are no authorized but unissued shares of Series B Preferred Stock available for redemptionissue, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Convertible Preferred Stock to be converted shall be converted into that were submitted for redemption number of shares of Class B Common Stock determined by dividing the aggregate liquidation value of the shares to be converted by the Fair Market Value per share of the common stock at the time of such holder(sconversion (the "Conversion Price"), (cc) under this Section 8 and for which conversion of the Applicable Redemption Price has not been paid, by sending Series C Convertible Preferred Stock into Series B Preferred Stock or Class B Common Stock (as applicable) shall be effective as of the 30th day following written notice thereof to the Company of exercise of conversion is delivered (the “Void Optional Redemption Notice”). Upon "Exercise Period") by the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment holder of the full Applicable Redemption Price shares to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) converted is delivered to the Company; provided that no adjustment Successor Entity (with a copy to Saban and Xxxxx), and (dd) the Successor Entity shall be made if such adjustment would result in an increase have the right (but not the obligation) to redeem the Series C Convertible Stock at any time following receipt of the Conversion Price then in effect. A holder’s delivery notice of a Void Optional Redemption Notice conversion up and exercise of its rights following such notice shall not affect through the Company’s obligations to make any payments which have accrued prior to calendar day immediately preceding the effective date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.conversion;

Preferred Stock. If the Company shall fail to redeem all of the Series C Any Preferred Stock submitted for redemption (other than not previously designated as to series may be issued from time to time in one or more series pursuant to a dispute as resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the arithmetic calculation Board), and such resolution or resolutions shall also set forth the voting powers, full or limited or none, of each such series of Preferred Stock and shall fix the designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions of each such series of Preferred Stock; provided that, except for any right to elect directors upon the failure of the Applicable Redemption Price), in addition Corporation to any remedy pay regular dividends on such holder of Series C Preferred Stock may have under this Certificate as and when due for a specified period of Designation and such holder’s applicable Purchase Agreementtime, the Applicable Redemption Price payable in respect no series of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted entitled to vote generally in the election of any directors of the Corporation other than 3 52 Class A Directors or to vote separately to elect one or more directors of the Corporation. The Board of Directors is authorized to alter the designation, rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock and, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series of Preferred Stock, to increase or decrease (but not below the number of shares of any such series than outstanding) the number of shares of any such subsequent to the lesser issue of shares of that series. Each share of Preferred Stock issued by the Corporation, if reacquired by the Corporation (A) whether by redemption, repurchase, conversion to Common Stock or other means), shall upon such reacquisition resume the Conversion Price status of authorized and (B) unissued shares of Preferred Stock, undesignated as to series and available for designation and issuance by the lowest Closing Bid Price during Corporation in accordance with the period beginning on the date on which the notice immediately preceding paragraph." The Existing Certificate of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment Incorporation shall be made if such adjustment would result amended by deleting in an increase its entirety Article V thereof and renumbering Articles VI, VII, VIII and IX thereof as Articles V, VI, VII and VIII, respectively. The Existing Certificate of Incorporation shall be amended by deleting the Conversion Price then reference to Article VIII in effect. A holder’s delivery of a Void Optional Redemption Notice Article VIII thereof and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection replacing it with a Major Transaction"Article VII".

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

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

Preferred Stock. If All shares of Common Stock outstanding and to be outstanding upon completion of the Offering are and will be fully paid and nonassessable. Preferred Stock The Company is authorized by its Articles of Incorporation to issue a maximum of 1,500,000 shares of preferred stock, in one or more series and containing such rights, privileges and limitations, including voting rights, dividend rates, conversion privileges, redemption rights and terms, redemption prices and liquidation preferences, as the Board of Directors of the Company shall fail may, from time to redeem all time, determine. Except for the 2,200 shares of Series A Preferred Stock, no shares of Preferred Stock have ever been issued. The issuance of shares of preferred stock pursuant to the Board's authority could decrease the amount of earnings and assets available for distribution to holders of Common Stock, and otherwise adversely affect the rights and powers, including voting rights, of such holders and may have the effect of delaying, deferring or preventing a change in control of the Company. The Company is not required by current Florida Law to seek shareholder approval prior to any issuance of authorized but unissued stock and the Board of Directors does not currently intend to seek shareholder approval prior to any issuance of authorized but unissued shares of preferred stock or Common Stock, unless otherwise required by law. Series A Preferred Stock The Company has 2,200 shares of Series A Preferred Stock outstanding with a face amount of $2,200,000. The shares of Series A Preferred Stock were issued to five investors in a private placement in June 1997. For a full description of the relative rights, preferences, privileges and restrictions, including among other things, dividend rights, conversion rights, liquidation preferences and terms of redemption, reference is made to the articles of amendment of articles of incorporation, filed in the office of the Secretary of State of Florida, a copy of which is available from the Company upon request. Conversion Commencing on August 4, 1997 and provided that there is an effective registration statement covering the resale of the shares of Common Stock issuable upon the conversion of the shares of Series A Preferred Stock, each share of Series A Preferred Stock is convertible into shares of Common Stock at a conversion price equal to 80% (the "Applicable Percentage") of the average closing bid price of the Common Stock as reported by NASDAQ, during the five trading days immediately preceding the date notice of conversion is given to the Company. In the event that a registration statement covering the resale of the shares of Common Stock issuable upon the conversion of the shares of Series A Preferred Stock is not effective by August 4, 1997, then the Applicable Percentage is reduced to 75% and the holder of each share of Series A Preferred Stock is entitled to a payment of 2.5% per month until a registration statement is effective, payable in cash or shares of Common Stock at the option of the holder. Shares of Series A Preferred Stock are converted automatically into shares of Common Stock on June 4, 2000. Except in the case of the automatic conversion of the shares of Series A Preferred Stock, the holder can convert any portion of such holder's shares of Series A Preferred Stock if such conversion would not increase such holder's beneficial ownership of Common Stock (other than shares of Common Stock owned through ownership of the Series C A Preferred Stock submitted for redemption (other than pursuant Stock) to a dispute as to in excess of 4.9%. Redemption The Company has the arithmetic calculation of the Applicable Redemption Price)right through January 31, 1998, in addition its discretion, to redeem any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) or all of the shares of Series C A Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has on a pro rata basis from time to time upon not been paid, by sending less than two business days prior written notice thereof to the Company (the “Void Optional Redemption Notice”)at a price of $1,250 per share through august 4, 1997 and at a price of $1,300 per share from August 5, 1997 through January 31, 1998. Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holderRanking The Series A Preferred Stock ranks, (i) the notice(s) of redemption shall be null and void with respect to those shares dividend rights and with respect to rights of Series C Preferred Stock submitted for redemption liquidation, dissolution and for which the Applicable Redemption Price has not been paidwinding up, (ii) the Company shall immediately return any Series C Preferred Stock submitted senior to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionCommon Stock.

Preferred Stock. If the Company shall fail to redeem all of the Series C (a) Issue any Preferred Stock submitted for redemption (or any Disqualified Stock, other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C any Preferred Stock submitted for redemption and for which does not require any dividends, payments, redemptions or other distributions of any kind until at least one year after the Applicable Redemption Price has not been paidlater of the Revolving Credit Termination Date or the Term Loan Maturity Date, (ii) the Company shall immediately return any Series C Preferred existing Lobdxxx Xxxferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) any other Preferred Stock or Disqualified Stock which meets all of the Conversion Price requirements for the issuance by the Company of Subordinated Debt (i.e., all payments and other obligations thereunder are expressly subordinated and junior in right and priority of payment to the Obligations and other Indebtedness of such returned shares of Series C Person to the Lenders in manner and by agreement satisfactory in form and substance to the Administrative Agent and such Preferred Stock or Disqualified Stock is subject to such other terms and provisions, including without limitation maturities, covenants, defaults, rates and fees, acceptable to the Administrative Agent), and such Preferred Stock and Disqualified Stock allowed under this clause (iii) shall be adjusted treated as if it were Subordinated Debt for all purposes of this Agreement and is defined herein as "Permitted Disqualified Stock". (b) Make any amendment or modification to any Lobdxxx Xxxferred Stock Document, other than the adjustment in the price of the Lobdxxx Xxxferred Stock made prior to the lesser Effective Date based on post closing adjustments and which do not result in any additional obligations of (A) Lobdxxx xx of the Conversion Price and (B) Company or any of its Restricted Subsidiaries, or enter into any other agreement or document relating thereto other than the lowest Closing Bid Price during documents listed on Schedule 4.18 or make, pay, declare or authorize any dividend, payment or other distribution with respect to any Preferred Stock or any dividend, payment or distribution in connection with the period beginning redemption, purchase, retirement or other acquisition, directly or indirectly, of any Preferred Stock other than as required under the Lobdxxx Xxxferred Stock Documents listed on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered Schedule 4.18; provided, however, that no dividend, payment or other distribution in respect to the Company; provided that no adjustment shall Preferred Stock or dividend, payment or distribution in connection with the redemption, purchase, retirement or other acquisition, directly or indirectly, of any Preferred Stock, including those required under the Lobdxxx Xxxferred Stock Documents, will be made if such adjustment any Event of Default exists under Section 7.1(a) or would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionbe caused thereby.

Preferred Stock. If (i) At or prior to Closing, Sellers will cause the Company shall fail to redeem all adopt, execute and file, in the requisite public offices in the State of Delaware, (i) an amendment to its Certificate of Incorporation increasing the authorized number of its shares of preferred stock to 130,000 shares, and (ii) the Certificate of Designations in the form attached as Exhibit B hereto and to issue the shares of Junior Preferred Stock in exchange for the outstanding shares of Old Preferred Stock as contemplated by Section 1(c) hereof. In connection therewith, Sellers covenant to effect such exchange in reliance upon the exemption from registration under Section 4(2) of the Series C Preferred Stock submitted for redemption (other than Securities Act pursuant to Rule 506 thereunder and to file a dispute as to Form D with the arithmetic calculation Securities and Exchange Commission and the California Department of Corporations. The certificates for the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Junior Preferred Stock shall bear interest at a legend restricting transfer absent registration under the rate of 1.0% per month Securities Act or an available exemption from registration. (prorated for partial monthsii) until paid in full. Until Subject to the Company pays such unpaid Applicable Redemption Price in full Company's right to a holder of redeem shares of Series C Junior Preferred Stock submitted for redemptionin accordance with Section 6 of the Certificate of Designations, such holder Parent shall have the option (option, exercisable by written notice given in the “Void Optional Redemption Option”) tomanner provided in Section 6 of the Certificate of Designations, to purchase shares of Junior Preferred Stock from Sellers, in lieu whole at any time or in part from time to time, on any Redemption Date (as defined in the Certificate of redemptionDesignations), require at a price equal to 100% of the Redemption Price (as so defined) which would be payable by the Company on such Date if the Company were then redeeming the shares pursuant to promptly return to said Section 6. The purchase price payable by Parent for such holder(sshares shall be payable in cash or at Parent's election in shares of Class A Stock, valued in the manner specified in Section 1 (a) all of hereof. Sellers shall deliver the certificates for the shares of Series C Junior Preferred Stock that were submitted for redemption being purchased by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning Parent on the date on which specified in the notice of redemption is delivered purchase referred to above, and ending on shall take all such other actions as Parent may reasonably request in order effectively to transfer such shares to Parent free and clear of any liens, claims or encumbrances. Parent agrees to execute and deliver to Sellers a registration rights agreement covering the date on which shares of Class A Stock issued to Sellers pursuant to this Section 5(e) having terms and conditions substantially similar to those contained in the Void Option Redemption Notice(s) is delivered Registration Rights Agreement. The restrictions, notice requirements and other provisions relating to the Company; provided that no adjustment shall be made if such adjustment would result in an increase 's redemption rights under Section 6 of the Conversion Price then in effect. A holder’s delivery Certificate of a Void Optional Redemption Notice and exercise of its Designations, shall apply equally to Parent's redemption rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionhereunder.

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

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

Preferred Stock. If Subject to receipt of any shareholder approvals required in Article IV, Section C(3)(c) hereof, and that certain Seventh Amended and Restated Investor’s Rights Agreement dated as of March , 2007, as amended, (the Company shall fail to redeem all of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price“Investor Rights Agreement”), in addition to any remedy such holder of Series C Preferred Stock may be issued from time to time in one or more series, each of such series to have under such terms as stated or expressed herein and in the resolution or resolutions providing for the issue of such series adopted by the Board of Directors of the Corporation as hereinafter provided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law or by the terms of any series of Preferred Stock. Different series of Preferred Stock shall not be construed to constitute different classes of shares for the purposes of voting by classes unless expressly provided. Subject to receipt of any shareholder approvals required in Article IV, Section C(3)(c) hereof, and the Investor Rights Agreement, authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by resolution or resolutions providing for the issue of the shares thereof, to determine and fix such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without limitation thereof, dividend rights, special voting rights, conversion rights, redemption privileges and liquidation preferences, as shall be stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the DGCL. Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to the Preferred Stock of any other series to the extent permitted by law. Except as otherwise specifically provided in this Certificate of Designation and such holder’s applicable Purchase AgreementIncorporation, as amended from time to time, no vote of the Applicable Redemption Price payable in respect holders of such unredeemed Series C the Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred or Common Stock shall be adjusted a prerequisite to the lesser issuance of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice any shares of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase any series of the Conversion Price then in effect. A holder’s delivery Preferred Stock authorized by and complying with the conditions of a Void Optional Redemption Notice this Certificate of Incorporation, the right to have such vote being expressly waived by all present and exercise future holders of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to capital stock of the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionCorporation.

Preferred Stock. If any Receipts shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the transfer of Receipts, shall suspend the distribution of dividends to the holders thereof, and shall not give any further notices (other than notice of such termination) or perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to the Preferred Stock, and shall continue to deliver Preferred Stock together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights, preferences, privileges or other property in exchange for Receipts surrendered to the Depositary. Subject to the provisions of the balance of this paragraph, at any time after the expiration of two years from the date of termination, the Depositary may sell the Preferred Stock then held hereunder at public or private sale at such place or places and upon such terms as it deems proper and may thereafter hold the net proceeds of any such sale, together with any other cash then held by it hereunder, without liability for interest, for the pro rata benefit of the holders of Receipts which have not theretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under this Deposit Agreement, except to account for such net proceeds and other cash. Subject to the provisions of the balance of this paragraph, upon the termination of this Deposit Agreement the Company shall fail be discharged from all obligations under this Deposit Agreement except for its obligations to redeem all of the Series C Preferred Stock submitted for redemption (Depositary and the Registrar, if any, under Sections 5.07 and 5.08 hereof. The Company shall be entitled to receive from the Depositary interest or other than income, if any, earned on money so held by the Depositary or otherwise held by the Depositary pursuant to a dispute as to the arithmetic calculation any other section of the Applicable Redemption Price)this Deposit Agreement, in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, interest or other income shall be paid by the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof Depositary to the Company (upon request, but not more often than once in any quarter. Any such monies unclaimed by the “Void Optional Redemption Notice”). Upon holders of Receipts more than two years from the date of termination of this Deposit Agreement shall, upon request of the Company’s receipt , be paid to it (together with such interest or other income not previously paid to the Company), and after such payment, the holders of such Void Optional Redemption Notice(s) and prior Receipts entitled to payment of the full Applicable Redemption Price funds so paid to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted look only to the Company by each for payment without interest. The Depositary shall invest all such holder for redemption and for which moneys in such fashion as may be agreed with the Applicable Redemption Price has not been paid and (iii) Company, consistent with the Conversion Price duties of such returned shares of Series C Preferred Stock shall be adjusted the Depositary to the lesser holders of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in Receipts under this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionDeposit Agreement.

Preferred Stock. If the Company shall fail to redeem all Each share of the Series C A Preferred Stock submitted for redemption issued and outstanding immediately prior to the Effective Time and held by Participating Rights Holders will be converted at the Effective Time into the right to receive (other than i) in accordance with Section 1.6, the Per Share Preferred Cash Closing Payment and the Per Share Preferred Stock Closing Payment associated with such series of Company Preferred Stock and (2) the Per Share Common Cash Closing Payment and the Per Share Common Stock Closing Payment that would otherwise be payable with respect to the number of shares of Company Common Stock into which such share of the Series A Preferred Stock is convertible immediately prior to the Effective Time and (ii) in accordance with Section 1.7, an amount equal to the Per Share Common Holdback Amount that would otherwise be payable with respect to the number of shares of Company Common Stock into which such share of the Series A Preferred Stock is convertible immediately prior to the Effective Time; provided, however, that in no event shall any amount be paid pursuant to this Section 2.1(b) with respect to any share of the Series A Preferred Stock in excess of the maximum amount that is distributable with respect to such share upon a dispute as liquidation of the Company, or any other event deemed to be a liquidation of the Company, pursuant to the arithmetic calculation Company Certificate of Incorporation as in effect immediately prior to the Effective Time. All shares of the Applicable Redemption Price)Series A Preferred Stock, in addition when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to any remedy such exist, and each holder of a certificate representing any such shares of the Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C A Preferred Stock shall bear interest at cease to have any rights with respect thereto, except the rate of 1.0% per month (prorated for partial months) until paid in fullright to receive the Per Share Preferred Closing Payment, the Per Share Common Closing Payment and the Per Share Common Holdback Amount. Until Notwithstanding the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) toforegoing, in lieu of redemptionaccordance with Section 1.5(b), require the Company to promptly return to such holder(s) all $100,000 of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment cash portion of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption Closing Payment Amount shall be null and void deposited by Parent with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionStockholder Representative Committee as Committee Reimbursement Amount.

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

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

Preferred Stock. If the Company shall fail to redeem all As of the Series C date hereof, none of ACS, ACE I or ACE II own shares of Class A Common Stock but own shares of Preferred Stock submitted for redemption (other than pursuant and Warrants each of which entitle ACS, ACE I or ACE II to a dispute as to the arithmetic calculation acquire shares of Class A Common Stock, including, without limitation in connection with exercises of the Applicable Redemption Price)ACAS Options. Each of ACS, ACE I and ACE II agrees that it will in addition to any remedy such holder of Series C a timely fashion convert its Preferred Stock may have under this Certificate into or exercise its Warrants for Class A Common Stock in an amount sufficient to permit exercises of Designation the ACAS Options in accordance with the terms hereof. Any exercise of the ACAS Options shall be pro rata among ACS, ACE I and ACE II such holder’s applicable Purchase Agreementthat upon exercise of the ACAS Options, the Applicable Redemption Price payable number of shares of Class A Common Stock to be purchased by Xxxxx from ACS, ACE I and ACE II in respect of such unredeemed Series C exercise shall be based on the percentage of Preferred Stock, Common Stock shall bear interest at and Warrants held by ACS, ACE I and ACE II, as applicable, as it relates to the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder total number of shares of Series C Preferred Stock, Common Stock and Warrants held by ACS, ACE I and ACE II collectively. For example, if Xxxxx exercises an ACAS Option to purchase 100 shares of Class A Common Stock, and at such time, ACS owns 700 shares of Class A Common Stock, ACE I owns 200 shares of Class A Common Stock and ACE II owns 100 shares of Class A Common Stock, Xxxxx shall purchase 70 shares of Class A Common Stock from ACS, 20 shares of Class A Common Stock from ACE I and 10 shares of Class A Common Stock from ACE II. The parties agree that any sale of Preferred Stock submitted in a Change of Control shall be considered a sale of Common Stock issuable on conversion thereof for redemption, such holder purposes of Sections 2.4 and 3.3(a) hereof and the Major Investor’s obligations thereunder. The parties agree that any sale by the Major Investor of shares of Preferred Stock as part of a transaction contemplated by Sections 2.5 and 3.3(b) hereof shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all be considered a sale of the shares of Series C Preferred Common Stock that were submitted for redemption by such holder(s) under this Section 8 issuable on conversion thereof and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the CompanyMajor Investor’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionthereunder.

Preferred Stock. If the Company shall fail to redeem all The holders of the Series C A Preferred Stock submitted are entitled to an annual dividend of $2.00 per share, payable semi-annually but only when and if declared by the Board of Directors out of funds legally available therefor. Dividends on the Series A Preferred Stock are cumulative and accrue and accumulate. No dividends are to be paid or set apart for redemption (other than pursuant payment on the Common Stock, nor are any shares of Common Stock to a dispute as to be redeemed, retired or otherwise acquired for valuable consideration unless the arithmetic calculation Company has paid in full, or made appropriate provision for the payment in full of, all dividends which have then accumulated on the Series A Preferred Stock. Since the Company did not make cash dividend payments for eight semi-annual periods from the date of issuance of the Applicable Redemption Price)Series A Preferred Stock, in addition to any remedy such holder of Series C A Preferred Stock may have under this Certificate elect, upon written notice to the Company, to be paid all or any part of Designation such accrued and unpaid dividends, and any dividends which accrue but are not paid in cash within thirty days of the scheduled payment date thereafter, in shares of the Company's Common Stock. Accrued and unpaid dividends payable to holders of Series A Preferred Stock as of the date such holder elects to convert the Series A Preferred Stock into Common Stock may, at the Company's option, be paid by the Company's issuance of Common Stock to such holder’s applicable Purchase Agreement. In all cases the number of shares of Common Stock to be received in lieu of accrued dividends shall be determined by dividing the aggregate amount of the accrued and unpaid dividends by the conversion rate of the Series A Preferred Stock in effect on the date of election. To date, the Applicable Redemption Price Company has paid no dividends on the Series A Preferred Stock, except for accrued dividends payable in respect of such unredeemed on Series C A Preferred Stock shall bear interest which has been converted, all of which have been paid with Common Stock. The Company does not presently intend to pay cash dividends on the Series A Preferred Stock. There were 1,733,000 of accrued and unpaid dividends on the Series A Preferred Stock as of March 31, 1998. Dividends on the Series A Preferred Stock currently accrue at the rate of 1.0% $216,000 per month (prorated year. Each share of Series A Preferred Stock is convertible at any time prior to redemption. For purposes of conversion, each share of Series A Preferred Stock is deemed to have a value of $25.00. The Series A Preferred Stock is convertible into Common Stock at a conversion rate of $11.00 per share of Common Stock. The conversion rate will be adjusted upon the Company's payment of dividends on its Common Stock in Common Stock, the subdivision or reduction of the Company's outstanding Common Stock, the reclassification of the Common Stock or the merger or consolidation of the Company, provided, however, that no such adjustment to the conversion rate will be made unless the net effect on the conversion price per share of all such events is at least $.50 in the aggregate. The Company may at any time, redeem the whole or any part of the Series A Preferred Stock then outstanding at a redemption price of $25.00 per share, plus in each case a sum equal to all accumulated and unpaid dividends thereon through the date fixed for partial months) until paid in fullredemption. Until In case of redemption of only part of the Series A Preferred Stock at any time outstanding, the Company pays such unpaid Applicable Redemption Price in full to a holder of shares shall designate the amount of Series C A Preferred Stock submitted for redemptionso to be redeemed and shall redeem such Series A Preferred Stock on a pro rata basis. Subject to certain limitations, such holder the Board of Directors shall have the option (power and authority to prescribe the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 terms and for conditions upon which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C A Preferred Stock shall be adjusted redeemed from time to time. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of Series A Preferred Stock will be entitled to receive in cash out of the assets of the Company, whether from capital or from earnings, available for distribution to its stockholders, before any amount shall be paid to the lesser holders of (A) the Conversion Price Common Stock, the sum of $25.00 per share of Series A Preferred Stock, plus an amount equal to all accumulated and (B) the lowest Closing Bid Price during the period beginning on unpaid dividends thereon through the date on fixed for payment of such distributive amount. All shares of Common Stock are of junior rank to Series A Preferred Stock in respect of the preferences as to dividends, distributions and payments upon the liquidation, dissolution or winding up of the Company. The rights of the holders of the Common Stock are subject to the preferences and relative rights of the Series A Preferred Stock. The Company may authorize and issue additional or other Preferred Stock which is of equal rank with the notice Series A Preferred Stock in respect of redemption is delivered the preferences as to dividends, distributions and ending on payments upon the date on which the Void Option Redemption Notice(s) is delivered to liquidation, dissolution or winding up of the Company; provided provided, however, that no adjustment for so long as any Series A Preferred Stock remains outstanding, the Company shall be made if such adjustment would result not issue any capital stock which is more senior in an increase rank than the Series A Preferred Stock in respect of the Conversion Price then in effectforegoing preferences or which shall have greater voting rights than the Series A Preferred Stock. A holder’s delivery In the event of a Void Optional Redemption Notice merger or consolidation of the Company with or into another corporation, the Series A Preferred Stock shall maintain its relative powers, designations and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionpreferences.

Preferred Stock. If the Company shall fail to redeem all of the Series C Any Preferred Stock submitted for redemption (other than not previously designated as to series may be issued from time to time in one or more series pursuant to a dispute as resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the arithmetic calculation Board), and such resolution or resolutions shall also set forth the voting powers, full or limited or none, of each such series of Preferred Stock and shall fix the designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions of each such series of Preferred Stock; provided that, except for any right to elect directors upon the failure of the Applicable Redemption Price), in addition Corporation to any remedy pay regular dividends on such holder of Series C Preferred Stock may have under this Certificate as and when due for a specified period of Designation and such holder’s applicable Purchase Agreementtime, the Applicable Redemption Price payable in respect no series of such unredeemed Series C Preferred Stock shall bear interest at be entitled to vote generally in the rate election of 1.0% per month any directors of the Corporation other than Class A Directors or to vote separately to elect one or more directors of the Corporation. The Board of Directors is authorized to alter the designation, rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock and, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series of Preferred Stock, to increase or decrease (prorated for partial months) until paid in full. Until but not below the Company pays such unpaid Applicable Redemption Price in full to a holder number of shares of Series C any such series than outstanding) the number of shares of any such subsequent to the issue of shares of that series. Each share of Preferred Stock submitted for issued by the Corporation, if reacquired by the Corporation (whether by redemption, repurchase, conversion to Common Stock or other means), shall upon such holder reacquisition resume the status of authorized and unissued shares of Preferred Stock, undesignated as to series and available for designation and issuance by the Corporation in accordance with the immediately preceding paragraph." The Existing Certificate of Incorporation shall have be amended by deleting in its entirety Article V thereof and renumbering Articles VI, VII, VIII and IX thereof as Articles V, VI, VII and VIII, respectively. The Existing Certificate of Incorporation shall be amended by deleting the option reference to Article VIII in Article VIII thereof and replacing it with "Article VII". EXHIBIT A-1(C) BY-LAW AMENDMENTS (WITH GOVERNANCE PROVISIONS) The By-laws of the Corporation in effect at the Effective Time (the “Void Optional Redemption Option”"Existing By-laws") toshall be amended by adding the phrase "class and" immediately preceding the phrase "number of shares" in the first sentence of Section 5 of Article II thereof. The Existing By-laws shall be amended by deleting in its entirety Section 2 of Article III thereof and replacing it with the following: "The number of directors which shall constitute the board of directors shall be ten (10). The number of directors may be changed from time to time by resolution of the board of directors or the stockholders, although in lieu no event shall the number of redemptiondirectors be less than five (5) for so long as the Special Voting Rights (as defined in Article IV, require Section (b)(4)(A) of the Company to promptly return to such holder(sCertificate of Incorporation) all shall be in effect. Each director shall be elected by a plurality of the votes of the shares of Series C Preferred Stock one or more class or classes or series of stock (as provided in the Certificate of Incorporation), as the case may be, entitled to vote for such director that were submitted for redemption are present in person or represented by proxy at the annual meeting of stockholders. At each annual meeting of the stockholders, the stockholders shall elect the successors of the class of directors whose terms expire at such holder(smeeting, to hold office until their successors are duly elected and qualified at the third annual meeting of stockholders following the year of their election or until their earlier death, resignation or removal as herein or in the Certificate of Incorporation provided. The directors shall be elected in this manner, except as provided in Section 4 of this Article III and the Certificate of Incorporation." The Existing By-laws shall be amended by deleting the first sentence of Section 4 of Article III thereof and replacing it with the following: "Vacancies resulting from newly created directorships resulting from an increase in the authorized number of directors and vacancies resulting from the death, resignation or removal of a director elected by (or appointed on behalf of) under this Section 8 and for the holders of one or more class or classes or series of stock (as provided in the Certificate of Incorporation), voting together as a class, as the case may be, shall be filled by the vote of the majority of the directors (or the sole remaining director) elected by (or appointed on behalf of) such holders of one or more class or classes or series of stock (as provided in the Certificate of Incorporation) (or on whose behalf the director was appointed), as the case may be, whose death, resignation or removal created the vacancy, or to which the Applicable Redemption Price newly-created directorship has not been paid, allocated." The Existing By-laws shall be amended by sending written notice deleting the phrase "each newly-elected board of directors" in Section 5 of Article III thereof to and replacing it with the Company phrase "the board of directors." EXHIBIT A-1(D) BY-LAW AMENDMENTS (WITHOUT GOVERNANCE PROVISIONS) The By-laws of the Corporation in effect at the Effective Time (the “Void Optional Redemption Notice”"Existing By-laws") shall be amended by adding the phrase "class and" immediately preceding the phrase "number of shares" in the first sentence of Section 5 of Article II thereof. The Existing By-laws shall be amended by deleting in its entirety Section 2 of Article III thereof and replacing it with the following: "The number of directors which shall constitute the board of directors shall be ten (10). Upon the Company’s receipt The number of such Void Optional Redemption Notice(s) and prior directors may be changed from time to payment time by resolution of the full Applicable Redemption Price to such holderboard of directors or the stockholders, although in no event shall the number of directors be less than five (i5) for so long as the notice(sSpecial Voting Rights (as defined in Article IV, Section (b)(4)(A) of redemption the Certificate of Incorporation) shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery Each director shall be elected by a plurality of the votes of the shares of one or more class or classes or series of stock (as provided in the Certificate of Incorporation), as the case may be, entitled to vote for such director that are present in person or represented by proxy at the annual meeting of stockholders. Each director elected shall hold office until a successor is duly elected and qualified or until his earlier death, resignation or removal as herein and in the Certificate of Incorporation provided. The directors shall be elected in this manner, except as provided in Section 4 of this Article III and the Certificate of Incorporation." The Existing By-laws shall be amended by deleting the first sentence of Section 4 of Article III thereof and replacing it with the following: "Vacancies resulting from newly created directorships resulting from an increase in the authorized number of directors and vacancies resulting from the death, resignation or removal of a Void Optional Redemption Notice director elected by (or appointed on behalf of) the holders of one or more class or classes or series of stock (as provided in the Certificate of Incorporation), voting together as a class, as the case may be, shall be filled by the vote of the majority of the directors (or the sole remaining director) elected by (or appointed on behalf of) such holders of one or more class or classes or series of stock (as provided in the Certificate of Incorporation) (or on whose behalf the director was appointed), as the case may be, whose death, resignation or removal created the vacancy, or to which the newly-created directorship has been allocated." The Existing By-laws shall be amended by deleting the phrase "each newly-elected board of directors" in Section 5 of Article III thereof and exercise replacing it with the phrase "the board of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date directors." EXHIBIT A-1(E) DIRECTORS AT THE EFFECTIVE TIME (if Governance Directors Designated as Provisions Approved) Name of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.Director Class A or Class B Director Class ----------------------- ------------------------ --------------------- Xxxx X. Xxxxx Class B Term Expiring 2000 Xxxxxxx X. Xxxxxxxx Class B Term Expiring 2000 Xxxxxxx X. XxXxxxx Class B Term Expiring 2000 Xxxxxx X. Xxxxxxxxx Class A Term Expiring 2001 Xxxxxx X. Xxxxx Class B Term Expiring 2001 Xxxx Xxxxxxxxxx Xxxxx Class B Term Expiring 2001 Xxxxxxx X. Xxxxx Class A Term Expiring 2002 Xxx X. Xxxxxx Class B Term Expiring 2002 Xxxxxxx Xxxxx Class B Term Expiring 2002 Xxxxxxx X. Xxxxxxxx Class B Term Expiring 2002

Preferred Stock. If the Company shall fail to redeem all The Board may, without further action of the Series C Company’s stockholders, issue shares of Preferred Stock submitted in one or more series, fix the number of shares, determine or alter for redemption (each such series, such voting powers, full or limited, or no voting powers, and such designation, preferences, and relative, participating, optional, or other than pursuant to a dispute rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board providing for the issuance of such shares and as may be permitted under Chapter 78 of the NRS. The Board may also increase or decrease the number of shares of any series of Preferred Stock subsequent to the arithmetic calculation issuance of shares of that series of Preferred Stock, but not below the number of shares of such series of Preferred Stock then outstanding. In case the number of shares of any series of Preferred Stock shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the Applicable Redemption Price), in addition to any remedy resolution originally fixing the number of shares of such holder series of Series C Preferred Stock. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the stock of Ondas entitled to vote thereon, without a separate vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any certificate of designation filed with respect to any series of Preferred Stock. On August 14, 2020, the Company filed a Certificate of Designation with the State of Nevada to designate 5,000,000 shares of the Company’s Preferred Stock as Series A Preferred. Shares of Series A Preferred rank pari passu with the Company’s common stock, except that holders of Series A Preferred shall have under this certain liquidation preferences as set forth in the Certificate of Designation and such holderthe holders of the Series A Preferred are not entitled to vote on any matters presented to the stockholders of the Company. The Certificate of Designation became effective on the August 14, 2020. In connection with the Company’s applicable Purchase Agreementunderwritten public offering of common stock consummated on December 8, 2020, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of Company’s outstanding 2,350,390 shares of Series C A Convertible Preferred Stock submitted for redemptionmandatorily converted into an aggregate of 979,361 shares of Common Stock. As of January 28, such holder shall have the option (the “Void Optional Redemption Option”) to2021, in lieu of redemption, require the Company to promptly return to such holder(s) all has no shares of preferred stock outstanding. Chapter 78 of the NRS contains a provision governing “Acquisition of Controlling Interest.” This “control share act” (NRS 78.378 through 78.3793, inclusive) provides generally that any person, individually or in association with others, that acquires 20% or more of the outstanding voting shares of Series C Preferred Stock that were submitted for redemption by certain Nevada corporations may be denied voting rights with respect to the acquired shares, unless a majority of the disinterested stockholders of the corporation elects to restore such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof voting rights in whole or in part. The control share act will apply to the Company if the Company were to have 200 or more stockholders of record (the “Void Optional Redemption Notice”). Upon at least 100 of whom have addresses in Nevada appearing on the Company’s receipt of such Void Optional Redemption Notice(sstock ledger) and prior to payment if the Company does business in the State of Nevada directly or through an affiliated corporation, unless the Company’s Articles of Incorporation or bylaws in effect on the tenth day after the acquisition of a controlling interest provide otherwise. The control share act provides that a person, individually or in association with others, acquires a “controlling interest” when it acquires ownership of outstanding voting shares that, but for the operation of the full Applicable Redemption Price control share act, would bring its voting power of the Company in the election of directors within any of the following three ranges: ● 20% to such holder33%; ● 33% to 50%; and ● more than 50%. Once an acquirer crosses one of the above thresholds, (i) shares that it acquired in the notice(s) of redemption shall be null transaction taking it over the threshold and void with respect within the 90 days immediately preceding the date when the acquiring person acquired or offered to those shares of Series C Preferred Stock submitted for redemption and for acquire a controlling interest become “control shares” to which the Applicable Redemption Price has voting restrictions described above apply. A corporation may elect to opt-out from the provisions of the control share act by providing in the articles of incorporation or bylaws that such provisions do not been paidapply to the corporation. The Company’s Articles of Incorporation and bylaws do not exempt the Company’s common stock from the control share act. As of the date of this filing, (ii) the Company shall immediately return any Series C Preferred Stock submitted to does not have 200 or more stockholders of record and, as a result, the Company by each such holder for redemption and for which the Applicable Redemption Price has control share act does not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered currently apply to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.

Preferred Stock. If In the event that the Company proposes to issue any shares of Company Preferred Stock, the terms of such Company Preferred Stock and the terms of conversion of such Company Preferred Stock into securities of Purchaser shall fail be mutually acceptable to redeem all the Company and the Purchaser. If applicable, the rights, preferences, privileges and limitations to be set forth in a certificate of designation relating to any Purchaser Preferred Stock shall be mutually acceptable to the Company and the Purchaser. The certificate of designation for such Purchaser Preferred Stock shall be filed with the Secretary of State of Delaware as part of the Series C Certificate of Merger. Notwithstanding the foregoing, this Section 1.10(g) shall not apply to the Company Preferred Stock submitted for redemption (other than and any in-kind dividends thereon) to be issued pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price)(i) those certain subscription agreements dated on or about April 14, 2023, in addition to any remedy such holder connection with the acquisition of Series C Preferred Stock may have under this assets of Red Rock Biofuels LLC, and (ii) the Company’s Certificate of Designation of Preferences, Rights and such holderLimitations of Series A Convertible Preferred Stock filed with the Delaware Secretary of State’s applicable Purchase Agreementoffice on April 6, 2023.” (e) Section 1.11(a) of the Agreement shall be amended to read as follows: (a) Prior to the Effective Time, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Purchaser shall appoint its transfer agent, Continental Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemptionTransfer & Trust Company, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof or another agent reasonably acceptable to the Company (the “Void Optional Redemption NoticeTransfer Agent”), for the purpose of issuing the Purchaser Securities issuable as the Merger Consideration. Upon At or prior to the Effective Time, the Purchaser shall instruct the Transfer Agent to issue the Purchaser Securities representing the Merger Consideration to issue such shares in accordance with written instructions from the Company. All stock certificates representing Company Stock prior to the Recapitalization shall be cancelled and the Company shall instruct the Transfer Agent to issue to the Company’s receipt stockholders such number of shares of Purchaser Securities as are issuable pursuant to this Section 1, such Void Optional Redemption Notice(sshares shall be issued on a book entry basis, and the Transfer Agent shall provide to each Company Stockholder advise as to the number of shares owned by such Company Stockholder and any legends relating to such shares.” (f) and prior to payment Section 1.11(b) of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption Agreement shall be null and void with respect amended to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.read as follows:

Preferred Stock. If the Company The Depositary shall fail to redeem all transmit notice of the Series C Preferred Stock submitted for Corporation’s redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C F Preferred Stock submitted and the proposed simultaneous redemption of the number of Depositary Shares representing such shares of the Series F Preferred Stock to be redeemed, at the sole expense of the Corporation, by first-class mail, postage prepaid, or by such other method approved by the Depositary (in its reasonable discretion), in either case not less than 30 days and not more than 60 days prior to the date fixed for redemption, redemption of such holder shall have the option shares of Series F Preferred Stock and Depositary Shares (the “Void Optional Redemption OptionDate”) to), in lieu of redemption, require to the Company to promptly return to such holder(s) all Record Holders of the shares Receipts evidencing the Depositary Shares to be so redeemed at the addresses of Series C Preferred Stock that were submitted such Holders as they appear on the records of the Depositary; but neither failure to mail or transmit any such notice of redemption of Depositary Shares to one or more such Holders nor any defect in any notice of redemption of Depositary Shares to one or more such Holders shall affect the sufficiency of the proceedings for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof as to the Company (other Holders. Each such notice shall be prepared by the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) Corporation and prior to payment of the full Applicable Redemption Price to such holder, shall state: (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, Date; (ii) the Company shall immediately return number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any Series C Preferred Stock submitted such Holder are to be redeemed, the Company number of such Depositary Shares held by each such holder for redemption and for which the Applicable Redemption Price has not been paid and Holder to be so redeemed; (iii) the Conversion Price applicable Redemption Price; (iv) the place or places where Receipts evidencing such Depositary Shares are to be surrendered for payment of such returned shares the redemption price; and (v) that dividends in respect of the Series C F Preferred Stock represented by such Depositary Shares to be redeemed will cease to accrue on such Redemption Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be adjusted selected either pro rata or by lot. The Corporation acknowledges and agrees that Depositary’s ability to pay the lesser Redemption Price plus accrued but unpaid dividends to Holders in a timely manner is dependent on timely receipt by the Depositary (or the financial institutions designated by the Depositary) of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result cash in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following aggregate amount sufficient to pay such notice shall not affect the Company’s obligations to make any payments which have accrued cash no later than 24 hours prior to the date of expected payment and the Depositary shall be excused from any failure to meet its obligations to provide or cause to be provided timely payments to the extent the Corporation fails to provide such noticecash no later than 24 hours to the Depositary (or the financial institutions designated by the Depositary) as reasonably necessary for the provision of such payment. For Cash payments received from the avoidance Corporation less than 24 hours prior to payment of doubtcash to Holders may incur additional rush processing fees. Notice having been mailed or transmitted by the Depositary as aforesaid, payments provided for in this Section 8 from and after the Redemption Date (unless the Corporation shall have priority failed to payments provide the funds necessary to other stockholders in connection with a Major Transaction.redeem the Series F Preferred Stock evidenced by the Depositary Shares called for

Preferred Stock. If the Company shall fail to redeem all of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C 1. Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreementbe issued from time to time in one or more series, the Applicable Redemption Price payable in respect each of such unredeemed Series C series to have such terms as stated or expressed herein and in the resolution or resolutions providing for the issue of such series adopted by the Board of Directors of the Corporation as hereinafter provided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law. Different series of Preferred Stock shall bear interest at not be construed to constitute different classes of shares for the rate purposes of 1.0% per month (prorated voting by classes unless expressly provided. 2. Authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by resolution or resolutions providing for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full issue of the shares thereof, to a holder determine and fix the number of shares of Series C such series and such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall be stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the General Corporation Law of Delaware. Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock submitted for redemptionmay provide that such series shall be superior or rank equally or be junior to the Preferred Stock of any other series to the extent permitted by law. Except as otherwise provided in this Amended and Restated Certificate of Incorporation, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all no vote of the shares holders of Series C the Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred or Common Stock shall be adjusted a prerequisite to the lesser designation or issuance of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice any shares of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase any series of the Conversion Price Preferred Stock authorized by and complying with the conditions of this Amended and Restated Certificate of Incorporation, the right to have such vote being expressly waived by all present and future holders of the capital stock of the Corporation. 3. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares then in effect. A holder’s delivery outstanding) by the affirmative vote of the holders of a Void Optional Redemption Notice and exercise majority of its rights following such notice shall not affect the Company’s obligations stock of the Corporation entitled to make any payments which have accrued prior to vote, irrespective of the date provisions of such notice. For Section 242(b)(2) of the avoidance General Corporation Law of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionDelaware.

Preferred Stock. If Conversion Rights Each share of Series A Preferred Stock is initially convertible into that number of shares of our common stock equal to the Company shall fail to redeem all purchase price of the Series C A preferred stock divided by the Conversion Price, which is equal to $0.33. The Series A Preferred Stock submitted for redemption (other than pursuant to a dispute as to will automatically convert into shares of our common stock upon the arithmetic calculation 5th trading date following the announcement of the Applicable Redemption Price)stockholder approval for a reverse stock split, in addition provided that, we will not effect any conversion, and the holder will not have the right to any remedy such holder of convert, subject to certain exceptions, the Series C A Preferred Stock may have under this Certificate for shares of Designation and our common stock if, as a result of such holder’s applicable Purchase Agreementconversion, the Applicable Redemption Price payable in respect holder, together with its affiliates and other attribution parties, would own more than 9.99% of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder total number of shares of our common stock then issued and outstanding, which percentage may be changed at the holder’s election to a lower percentage at any time or to a higher percentage upon 61 days’ notice to us, provided further that such limitation on conversion will automatically be adjusted to 19.99% with respect to any holder during the period that any employee, manager, partner, managing director or affiliate of such holder is then serving on our board of directors. Voting rights The Series C A Preferred Stock will initially vote together with our common stock on an as-converted basis. Holders of our Series A Preferred Stock will be entitled to one vote for each share of common stock into which their Series A preferred stock is then-convertible, on all matters submitted to a vote of stockholders, including the Reverse Stock Split subject to certain limitations on conversion described herein. Following the date that the Series A Preferred Stock automatically convert into shares of our common stock, except as otherwise required by law, the Series A Preferred Stock will have no voting rights. Liquidation In the event of any voluntary or involuntary liquidation, dissolution or winding up of the company or sale event, the assets of the company available for redemption, such holder distribution to its stockholders shall have be distributed among the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all holders of the shares of Series C A Preferred Stock and common stock, pro rata based on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to common stock. Exercise price $0.33 per underlying share of common stock. Each Series A Warrant will be exercisable for one share of our common stock. A holder of Series A Warrants may, in their sole discretion, exercise their Series A Warrant, in lieu of making the cash payment of the Series A Warrant exercise price, elect instead to receive upon such exercise the “net number” of shares of our common stock determined according to the formula set forth in the form of Series A Warrant. Exercisability Each Series A Warrant will be exercisable the first trading day following stockholder approval of an increase in our authorized common stock, provided that were submitted the holder will be prohibited, subject to certain exceptions, from exercising the Series A Warrant for redemption shares of our common stock to the extent that immediately prior to or after giving effect to such exercise, the holder, together with its affiliates and other attribution parties, would own more than 9.99% of the total number of shares of our common stock then issued and outstanding, which percentage may be changed at the holder’s election to a lower percentage at any time or to a higher percentage upon 61 days’ notice to us. Expiration Each Series A Warrant will expire five years from the date it first becomes exercisable. Exercise price $0.33 per underlying share of common stock. Each Series B Warrant will be exercisable for 0.33 shares of our common stock. Holders of Series B Warrants may only exercise the Series B Warrants by paying the exercise price in cash. Exercisability Each Series B Warrant will be exercisable the first trading day following stockholder approval of an increase in our authorized common stock, provided that the holder will be prohibited, subject to certain exceptions, from exercising the Series B Warrant for shares of our common stock to the extent that immediately prior to or after giving effect to such holder(sexercise, the holder, together with its affiliates and other attribution parties, would own more than 9.99% of the total number of shares of our common stock then issued and outstanding, which percentage may be changed at the holder’s election to a lower percentage at any time or to a higher percentage upon 61 days’ notice to us. Expiration Each Series B Warrant will expire on the 75th day anniversary of our announcement of top-line data from MOMENTUM. We have filed a registration statement (including the Preliminary Prospectus Supplement) under with the SEC for the offering to which this Section 8 communication relates. Before you invest, you should read the Preliminary Prospectus Supplement and other documents the Company has filed with the SEC for which more complete information about the Applicable Redemption Price has not been paidCompany and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the Company, any underwriter or any dealer participating in the offering will arrange to send you the Preliminary Prospectus Supplement if you request it from: Jefferies LLC, Attention: Equity Syndicate Prospectus Department, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, or by sending written notice thereof to telephone at (000) 000-0000, or by e-mail: Xxxxxxxxxx_Xxxxxxxxxx@Xxxxxxxxx.xxx. Form of Lock-up Agreement Xxxxxxxxx LLC As Representative of the Several Underwriters c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 RE: Sierra Oncology, Inc. (the “Company”) Ladies & Gentlemen: The undersigned is an owner of shares of common stock, par value $0.001 per share, of the Company (the “Void Optional Redemption NoticeShares”) or of securities convertible into or exchangeable or exercisable for Shares. The Company proposes to conduct a public offering (the “Offering”) of securities of the Company (the “Securities”) for which Xxxxxxxxx LLC will act as representative (the “Representative”) of the underwriters. The undersigned recognizes that the Offering will benefit each of the Company and the undersigned. The undersigned acknowledges that the underwriters are relying on the representations and agreements of the undersigned contained in this letter agreement in conducting the Offering and, at a subsequent date, in entering into an underwriting agreement (the “Underwriting Agreement”) and other underwriting arrangements with the Company with respect to the Offering. Annex A sets forth definitions for capitalized terms used in this letter agreement that are not defined in the body of this agreement. Those definitions are a part of this agreement. In consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during the Lock-up Period, the undersigned will not (and will cause any Family Member not to), without the prior written consent of the Representative, which may withhold its consent in its sole discretion: • Sell or Offer to Sell any Shares or Related Securities currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the undersigned or such Family Member, • enter into any Swap, • make any demand for, or exercise any right with respect to, the registration under the Securities Act of the offer and sale of any Shares or Related Securities, or cause to be filed a registration statement, prospectus or prospectus supplement (or an amendment or supplement thereto) with respect to any such registration, or • publicly announce any intention to do any of the foregoing. Upon The foregoing will not apply to the registration of the offer and sale of the Securities in the Offering by the Company’s receipt , and the sale of the Securities to the underwriters, in each case as contemplated by the Underwriting Agreement. In addition, the foregoing restrictions shall not apply to (a) the transfer of Shares or Related Securities by gift, or by will or intestate succession to a Family Member or to a trust whose beneficiaries consist exclusively of one or more of the undersigned and/or a Family Member, (b) the transfer of Shares or Related Securities that occurs by operation of law pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of a marriage or civil union; provided that any public disclosure or filing under the Exchange Act or otherwise that is required to be made during the Lock-up Period as a result of such Void Optional Redemption Notice(stransfer shall include a statement that such transfer has occurred by operation of law; (c) and prior the sale of or offer to payment sell Shares or Related Securities acquired in open market transactions after the Offering; (d) the exercise of options, warrants or other rights to acquire Shares or Related Securities in accordance with their terms, provided that any such shares issued upon exercise, exchange or conversion of such Related Securities shall continue to be subject to the full Applicable Redemption Price restrictions set forth herein; (e) the transfer or sale of Shares or Related Securities to such holderthe Company pursuant to agreements under which the Company, (i) upon termination of employment, has the notice(s) of redemption shall be null and void with respect option to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paidrepurchase such Shares or Related Securities, (ii) the Company shall immediately return any Series C Preferred Stock submitted is required to the Company by each repurchase such holder for redemption and for which the Applicable Redemption Price has not been paid and Shares or Related Securities or (iii) the Conversion Price has a right of first refusal with respect to transfers of such returned shares Shares or Related Securities upon termination of Series C Preferred Stock shall be adjusted service of the undersigned; (f) the “net” exercise of outstanding options or warrants in accordance with their terms pursuant to an employee benefit plan or warrant disclosed in the prospectus supplement relating to the lesser Offering and the surrender of Shares in lieu of payment in cash of the exercise price and any tax withholding obligations due as a result of such exercise or settlement; (Ag) the Conversion Price establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided, that there are no sales under or public disclosure of such plan during the Lock-up Period; and (Bh) the lowest Closing Bid Price during transfer of Shares or Related Securities pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the period beginning on the date on which the notice Shares involving a Change of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to Control of the Company; provided that no adjustment in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Shares and Related Securities owned by the undersigned shall remain subject to the restrictions contained in this letter agreement; provided further, however, that: • in the case of (a) and (b) above, it shall be made a condition to such transfer that (i) each transferee executes and delivers to the Representative an agreement in form and substance satisfactory to the Representative providing consent for the release or waiver stating that such transferee is receiving and holding such Shares and/or Related Securities subject to the provisions of this letter agreement and agrees not to Sell or Offer to Sell such Shares and/or Related Securities, engage in any Swap or engage in any other activities restricted under this letter agreement except in accordance with this letter agreement (as if such adjustment would result transferee had been an original signatory hereto) and (ii) such transfer shall not involve a disposition for value; • in an increase the case of (a), (c) and (d) above, prior to the expiration of the Conversion Price then Lock-up Period, no public disclosure or filing under the Exchange Act by any party to the transfer (donor, donee, transferor or transferee) shall be required, or made voluntarily, reporting a reduction in effectbeneficial ownership of Shares in connection with such transfer; and • in the case of (f) above, (i) no public disclosure or filing under the Exchange Act by any party to the transfer shall be required, or made voluntarily, reporting a reduction in beneficial ownership of Shares in connection with such exercise or settlement, and (ii) the Shares received by the undersigned from the Company shall remain subject to the terms of this letter agreement. A holderIn addition, notwithstanding the foregoing, if the undersigned is a non-natural person, the undersigned may transfer the undersigned’s delivery Shares or Related Securities to (A) any wholly-owned subsidiary of the undersigned or to the parent entity of the undersigned, (B) limited partners, members or stockholders of the undersigned and (C) any corporation, partnership, limited liability company, investment fund or other entity controlled or managed, or under common control or management by the undersigned or a Void Optional Redemption Notice Family Member of the undersigned; provided, however, that in any such case, it shall be a condition to the transfer that (X) the transferee execute an agreement stating that the transferee is receiving and exercise holding such capital stock subject to the provisions of its rights following this letter agreement and there shall be no further transfer of such notice capital stock except in accordance with this letter agreement, (Y) in no case shall a filing or public disclosure under the Exchange Act by any party to the transfer (donor, donee, transferor or transferee) be required, or made voluntarily, reporting a reduction in beneficial ownership of Securities in connection with such transfer and (Z) any such transfer shall not affect involve a disposition for value. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s obligations transfer agent and registrar against the transfer of Shares or Related Securities held by the undersigned and the undersigned’s Family Members, if any, except in compliance with the foregoing restrictions. With respect to make the Offering only, the undersigned waives any payments registration rights relating to registration under the Securities Act of the offer and sale of any Shares and/or any Related Securities owned either of record or beneficially by the undersigned, including any rights to receive notice of the Offering. Whether or not the Offering occurs as currently contemplated or at all depends on market conditions and other factors. The Offering will only be made pursuant to the Underwriting Agreement, the terms of which have accrued are subject to negotiation between the Company and the underwriters. The undersigned hereby represents and warrants that the undersigned has full power, capacity and authority to enter into this letter agreement. This letter agreement is irrevocable and will be binding on the undersigned and the successors, heirs, personal representatives and assigns of the undersigned. This letter agreement will automatically terminate upon the earliest to occur, if any, of (a) the date the Company advises the Representative in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (b) the date of the termination of the Underwriting Agreement if prior to the closing of the Offering and (c) December 31, 2019 if the Underwriting Agreement has not been executed and delivered by the Company by such noticedate (provided that the Company may by written notice to the undersigned prior to December 31, 2019 extend such date until January 31, 2019). This letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York. Very truly yours, Name of Security Holder (print exact name) By: Signature If not signing in an individual capacity: Name of Authorized Signatory (print) Title of Authorized Signatory (print) Used in Lock-up Agreement For purposes of the avoidance letter agreement to which this Annex A is attached and of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with which it is made a Major Transaction.part:

Preferred Stock. If the Each share of each series, if any, of Company shall fail to redeem all of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as issued and outstanding immediately prior to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation Effective Time and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest held by Participating Rights Holders will be converted at the rate of 1.0% per month Effective Time into the right to receive (prorated for partial monthsi) until paid in full. Until an amount equal to the Company pays such unpaid Applicable Redemption Price in full Per Share Closing Payment that would otherwise be payable with respect to a holder the number of shares of Series C Company Common Stock into which such share of Company Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof is convertible immediately prior to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paidEffective Time, (ii) the Company shall immediately return any Series C Preferred Stock submitted right to receive a portion of the funds deposited in escrow pursuant to Section 1.5(e) hereof, when such funds, if any, are released from escrow pursuant to the Company by each such holder for redemption and for which terms of the Applicable Redemption Price has not been paid and Escrow Agreement, (iii) the Conversion Price Per Share FDA Milestone Payment that would otherwise be payable with respect to the number of such returned shares of Series C Company Common Stock into which such share of Company Preferred Stock is convertible immediately prior to the Effective Time associated with the FDA Milestone Payment, when and if such FDA Milestone Payment is made pursuant to Section 1.6, (iv) an amount equal to the Per Share Contingent Payment that would otherwise be payable with respect to the number of shares of Company Common Stock into which such share of Company Preferred Stock is convertible immediately prior to the Effective Time associated with each Sales Contingent Payment, when such payments, if any, are made pursuant to Sections 1.6 and 1.8 hereof and (v) an amount per share equal to the Per Share Recovery Payment Amount, that would otherwise be payable with respect to the number of shares of Company Common Stock into which such share of Company Preferred Stock is convertible immediately prior to the Effective Time, when and if either the First Recovery Contingent Payment or the Second Recovery Contingent Payment is made in accordance with Sections 1.6 and 1.8 hereof. All shares of Company Preferred Stock, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Preferred Stock shall be adjusted cease to have any rights with respect thereto, except the right to receive the amounts described in this paragraph (b) at the times specified therefor, upon the surrender of such certificate in accordance with Section 2.2 and this Section 2.1. Notwithstanding the foregoing, a portion of any Contingent Payment otherwise attributable to the lesser of (A) the Conversion Price Company Preferred Stock may be deducted from such Contingent Payment and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered paid to the Company; provided that no adjustment shall be Stockholder Representative Committee as additional Committee Reimbursement Amount in accordance with Section 2.5 or made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior subject to the date rights of such notice. For Parent and the avoidance of doubt, payments provided for in this Surviving Corporation under Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction1.8(h).

Preferred Stock. If the Company shall fail (1) The board of directors is expressly authorized to redeem all adopt and to cause to be executed and filed, without further approval of the Series C stockholders, an amendment or amendments to this Restated Certificate of Incorporation to divide any unissued shares of Preferred Stock submitted for redemption (other than pursuant into one or more classes and into series within any class or classes of Preferred Stock, to a dispute as to authorize the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect issuance of such unredeemed Series C Preferred Stock shall bear interest at shares for such consideration (not less than par value in the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder case of shares having a par value) as the board of Series C Preferred Stock submitted for redemptiondirectors may determine, and to determine in any one or more respects from time to time before issuance of such unissued shares; (a) the distinctive designation of such class or series and the number of shares to constitute such class or series and whether shares of such class are to have a par value and the par value of any shares which are to have a par value, provided that, unless otherwise stated in any such resolution or resolutions, such holder number of shares may be increased or decreased by the board of directors; (b) the annual dividend rate on the shares of such class or series and the date or dates from which dividends shall have accumulate thereon as herein provided; (c) the option (the “Void Optional Redemption Option”) to, in lieu times of redemption, require the Company to promptly return to such holder(s) all redemption of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 class or series and for the prices which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt holders of shares of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption class or series shall be null entitled to receive upon the redemption thereof, which prices may vary at different redemption dates and void may also be different with respect to those shares redeemed through the operation of any retirement or sinking fund than with respect to shares otherwise redeemed; (d) the amount which the holders of shares of Series C Preferred Stock submitted for redemption such class or series shall be entitled to receive upon the voluntary or involuntary liquidation, dissolution, or winding up of the corporation; (e) whether or not the shares of such class or series shall be subject to the operation of a purchase or sinking fund, and, if so, the extent to and for manner in which the Applicable Redemption Price has not been paid, (ii) the Company fund shall immediately return any Series C Preferred Stock submitted be applied to the Company by each such holder for purchase or redemption and for which of the Applicable Redemption Price has not been paid and (iii) the Conversion Price shares of such returned class or series for retirement or for other corporate purposes and the terms and provisions relative to the operation thereof; (f) whether or not the shares of Series C Preferred Stock shall be adjusted to such class or series shall, at the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase option of the Conversion Price then in effect. A holder’s delivery holder or the corporation or both, be convertible into, or exchangeable for shares of a Void Optional Redemption Notice stock of any other class or series, and exercise of its rights following such notice shall not affect if so convertible or exchangeable, the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.price or

Preferred Stock. If The Units of Series 2 Preferred Stock that may be acquired upon exercise of the Class A Common Rights will be redeemable in certain events as described below, and will rank junior to any other shares of preferred stock that may be issued by the Company shall fail with respect to redeem all the payment of dividends and as to distribution of assets in liquidation (except that Series 2 Preferred Stock will be in parity with the Series 1 Junior Preferred Stock). Each Share of Series 2 Preferred Stock will have a minimum preferential quarterly dividend of the greater of $1.00 per share or 100 times the aggregate per share dividend declared on the Class A Common Stock since the immediately preceding quarterly dividend, subject to certain adjustments. In the event of liquidation, the holder of Series 2 Preferred Stock will be entitled to receive a preferred liquidation payment per share equal to the greater of $1.00 (plus accrued and unpaid dividends thereon) or 100 times the amount paid in respect of a share of Class A Common Stock, subject to certain adjustments. 71 The Series 2 Preferred Stock will be redeemable in certain instances upon substantially the same terms and conditions that shares of Class A Common Stock may be redeemed in accordance with the Company's Restated Certificate of Incorporation. Generally, each share of Series 2 Preferred Stock will vote together with the Company Common Stock, the Class A Common Stock, any other series of preferred stock entitled to vote in such a manner, and will be entitled to 100 votes per share, subject to certain adjustments. The holders of the Series C 2 Preferred Stock, voting as a separate class, shall be entitled to elect two directors if dividends on the Series 2 Preferred Stock submitted for redemption (are in arrears in an amount equal to six quarterly dividends thereon. In the event of any merger, consolidation, or other than pursuant to a dispute as to the arithmetic calculation transaction in which shares of the Applicable Redemption Price)Class A Common Stock are exchanged, in addition to any remedy such holder each share of Series C 2 Preferred Stock may have under this Certificate will be entitled to receive 100 times the aggregate per share amount of Designation and such holder’s applicable Purchase Agreementstock, the Applicable Redemption Price payable cash, securities or other property paid in respect of such unredeemed each share of Class A Common Stock, subject to certain adjustments. The rights of holders of the Series C 2 Preferred Stock shall bear interest to dividend, liquidation and voting rights are protected by customary anti-dilution provisions. Because of the nature of the Series 2 Preferred Stock's dividend, liquidation and voting rights, the economic value of one Unit of Series 2 Preferred Stock is expected to approximate the economic value of one share of Class A Common Stock. 72 EXHIBIT C-1 FORM OF CERTIFICATE OF DESIGNATION OF SERIES 1 JUNIOR PREFERRED STOCK OF CONECTIV ------------------------ Pursuant to Section 151 of the General Corporation Law of the State of Delaware ------------------------- Conectiv, a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY: that, pursuant to authority conferred upon the Board of Directors of the Corporation by its Restated Certificate of Incorporation, and, pursuant to the provisions of Section 151 of the General Corporation Law of the State of Delaware, said Board of Directors, at a duly called meeting held on [ ], at which a quorum was present and acted throughout, adopted the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price following resolutions, which resolutions remain in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 force and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning effect on the date on which the notice hereof creating a class of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered [ ] shares of Preferred Stock having a par value of $.01 per share, designated as Series 1 Junior Preferred Stock. RESOLVED, that pursuant to the Company; provided that no adjustment shall be made if such adjustment would result authority vested in an increase the Board of Directors in accordance with the provisions of the Conversion Price then in effect. A holder’s delivery Restated Certificate of Incorporation of the Corporation, the Board of Directors does hereby create, authorize and provide for the issuance of a Void Optional Redemption Notice series of preferred stock, par value $.01 per share, of the Corporation, designated as Series 1 Junior Preferred Stock having the voting powers, designation, relative, participating, optional and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubtother special rights, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction.preferences, and qualifications, limitations and restrictions thereof that are set forth as follows:

Preferred Stock. If (a) The Company shall designate a series of preferred stock out of its currently authorized but unissued shares of preferred stock sufficient in number to convert the principal and accrued but unpaid interest of this Note at the Conversion Price. Such series shall be the Company's Redeemable Convertible 8% Cumulative Preferred Stock ("Preferred"). Such Preferred shall be entitled to a preference upon liquidation, shall be convertible into Common Stock of the Company shall fail to redeem all at the option of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest thereof at the rate of 1.0one share of Preferred for one share of Common Stock and the Conversion Price therefor shall be entitled to adjustment as provided for herein and in the Agreement (the "Conversion Price"). Dividends on the Preferred shall be in an amount equal to 8% per month (prorated for partial months) until annum and shall be cumulative irrespective of whether declared or paid and are payable in cash or in "PIK" as defined in the Agreement. Any dividend paid in full. Until the Company pays such unpaid Applicable Redemption Price PIK shall result in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, an 8% reduction in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock the Preferred. (b) The Company shall be adjusted have the right, subject to applicable law, to redeem the lesser of (A) Preferred, in whole or in part, at a redemption price equal to the Conversion Price and (B) the lowest Closing Bid Price during the period beginning for such Preferred plus any cumulated but unpaid dividends on the date on which Preferred. The Company shall designate the notice Preferred and file a Certificate of redemption is delivered Designation with terms and ending on provisions consistent with those provided herein and otherwise acceptable to the holders of the Notes within thirty days of the date hereof. (c) The Company shall have the right at any time and from time to time after the expiration of the 60-day Temporary Reduced Warrant Exercise Period, to convert the principal amount of the Notes into shares of its Preferred at the Conversion Price of the Preferred by notifying the holder of this Note thereof in writing. Accrued but unpaid interest on which this Note shall be paid in cash in connection with any such conversion. (d) The holders of any shares of Preferred shall have the Void Option Redemption Notice(s) is delivered right to sell to the Company; provided that no adjustment shall be made if , and the Company agrees to repurchase any shares of Preferred from such adjustment would result in an increase holders upon notice thereof at any time after the date which is three years from the consummation of the Conversion Price then Xxxxxxxx financing arrangements with the Company (as defined in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionAgreement).

Preferred Stock. (i) If the Company pays a dividend or distribution upon the Series A Preferred Stock in cash including any payment made upon a redemption of Series A Preferred Stock, then the Company shall fail pay to redeem all the holder of this Warrant, at the time of payment thereof, the amount of cash which would have been paid to such holder had this Warrant been fully exercised as of the date hereof. Upon the Company's redemption of Series C A Preferred Stock, the Warrant shall be deemed exercised and shall terminate with respect to the Series A Preferred Stock submitted for redemption subject to such redemption. (other than pursuant to a dispute as ii) Notwithstanding the foregoing, immediately prior to the arithmetic calculation conversion of Series A Preferred Stock (as provided in the Certificate of Incorporation of the Applicable Redemption Price), Company) and at every Dividend Accrual Date (as defined in addition to any remedy such holder the Certificate of Incorporation of the Company) for which dividends accrue on the Series C A Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreementbut are not paid, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock Warrant Shares for which this Warrant is exercisable shall bear interest at be increased by the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder number of shares of Series C A Preferred Stock submitted for redemptiondetermined by a fraction, such holder shall have (x) the option (numerator of which is the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all dollar amount of the shares dividend that would have accrued on the Preferred Warrant Shares had this Warrant been fully exercised as of the date hereof and (y) the denominator of which is the Series C A Issue Price. If the Preferred Stock that were submitted Warrant Shares for redemption by such holder(s) under which this Warrant is exercisable are increased pursuant to this Section 8 and 3(B)(ii) for which the Applicable Redemption Price has not been paidany Dividend Accrual Date, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption then no cash payments shall be null and void made pursuant to Section 3(B)(i) hereof due to cash dividends which were paid in arrears with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major TransactionDividend Accrual Date.

Preferred Stock. If the Company shall fail to redeem all [________] shares of the Series C authorized and unissued Preferred Stock of the Corporation are hereby designated “Series A Preferred Stock” with the following rights, preferences, powers, privileges and restrictions, qualifications and limitations. Unless otherwise indicated, references to “Preferred Stock” in this Section 4.4 mean the Series A Preferred Stock. The holders of Preferred Stock shall not be entitled to vote on any matters submitted to the stockholders of the Corporation. (a) From and after the date of the issuance of any shares of Preferred Stock, dividends shall accrue at the rate per annum of 12% of the Original Issue Price (as defined below) for redemption each share of Preferred Stock, prior and in preference to any declaration or payment of any other dividend (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other than pursuant similar recapitalization with respect to a dispute the Preferred Stock) (the “Accruing Dividends”). The “Original Issue Price” shall mean, as to the arithmetic calculation Series A Preferred Stock, $10 per share. Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative and shall be payable within fifteen business days (15) days after the end of each anniversary of the Applicable Redemption date of the original issuance of the Preferred Stock to each holder of Preferred Stock as of such date, provided that the Board of Directors shall be permitted to declare a dividend under applicable law. From the date hereof until the second anniversary of the date of the original issuance of the Preferred Stock, the Company may, at its option, pay all or part of the Accruing Dividends on the Preferred Stock by issuing and delivering additional Preferred Stock to the holders hereof (valuing such additional Preferred Stock at the Original Issue Price). The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation unless (in addition to the obtaining of any remedy such holder of Series C Preferred Stock may have under consents required elsewhere in this Certificate of Designation and such holder’s applicable Purchase Agreement, Incorporation) the Applicable Redemption Price payable in respect holders of such unredeemed Series C the Preferred Stock then outstanding shall bear interest at the rate first receive, or simultaneously receive, a dividend on each outstanding share of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof an amount at least equal to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt sum of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(samount of the aggregate Accruing Dividends then accrued on such share of Preferred Stock and not previously paid and (ii) (A) in the case of redemption shall be null a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and void (2) the number of shares of Common Stock issuable upon conversion of a share of Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to those shares of Series C Preferred Stock submitted for redemption such class or series) and for which the Applicable Redemption Price has not been paid, (ii2) the Company shall immediately return any Series C Preferred Stock submitted multiplying such fraction by an amount equal to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the applicable Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Companyas defined below); provided that no adjustment if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one (1) class or series of capital stock of the Corporation, the dividend payable to the holders of Preferred Stock pursuant to this Section 4.4(a) shall be made if such adjustment calculated based upon the dividend on the class or series of capital stock that would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionhighest Preferred Stock dividend.

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

Preferred Stock. If the Company At Closing Fortress shall fail deliver to redeem all of the Series C DWHC Fortress Class B Convertible Preferred Stock submitted for redemption (other than pursuant to having a dispute as value equal to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, difference between (i) the notice(s) Net Worth of redemption shall be null DWHC on the Balance Sheet Date and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C cash wired under subsection (b), above. The Fortress Class B Convertible Preferred Stock submitted will have a par value of $100, a liquidation value of $100 and each share of preferred stock will be convertible into 10 shares of Fortress Common Stock. After conversion the Fortress Common Stock will not be subject to a lock-up. The Class B Convertible Preferred Stockholders will have the right to convert all or part of his Class B Convertible Preferred Stock to Fortress Common Stock at any time. Additionally, if a Holder chooses to convert after the first anniversary of the Closing, then, Fortress agrees that if the value of 10 shares of Fortress Common Stock is less than $100 on the date of conversion, Fortress will give such cash or issue such additional Fortress Common Stock to Class B Convertible Preferred Stockholder to insure that he/she will receive value equal to $100 for each Class B Convertible Preferred Share converted. At Closing the Certificate of Designation of the Fortress Class B Convertible Preferred will be attached as Exhibit B, which shall conform to the Company by each such holder for redemption foregoing principal terms. The continuous offering of Fortress Common Stock pursuant to the conversion rights of the Class B Convertible Preferred Stock will be registered under the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws effective promptly following the Closing and for which so long as any of the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Class B Convertible Preferred Stock shall be adjusted remain unexercised. Fortress heretofore has filed, and the Securities and Exchange Commission ("SEC") has approved, a shelf registration statement on Form S-1 relating to the lesser registration of (A) an additional three million shares of common stock. Because the Conversion Price numbers used for the filing are "stale" as defined by the SEC, it is necessary to file with the most current quarter-ended financial information on file with SEC. Fortress hereby covenants to do so promptly and (B) use its best efforts to maintain the lowest Closing Bid Price during effectiveness of such registration with the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase SEC for so long as any of the Conversion Price then Class B Convertible Preferred Stock issued hereunder shall remain outstanding, subject to any future, temporary suspensions in effect. A holder’s delivery of a Void Optional Redemption Notice the use thereof that may be necessary from time to time to effect an amendment thereof in compliance with the 1933 Act and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionapplicable state securities laws.

Preferred Stock. If (a) The Company shall designate a series of preferred stock out of its currently authorized but unissued shares of preferred stock sufficient in number to convert the principal and accrued but unpaid interest of the Notes at the initial C/E Price. Such series shall be the Company's Redeemable Convertible 8% Cumulative Preferred Stock ("Preferred"). Such Preferred shall be entitled to a preference upon liquidation in an amount to be agreed upon by Purchaser and the Company prior to such exchange. Such Preferred shall fail to redeem all also be convertible into Common Stock of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to Company at the arithmetic calculation option of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest thereof at the rate of 1.0one share of Preferred for one share of common and the conversion price therefor shall be entitled to adjustment identical to the adjustment provided for the C/E Price as set forth in Section 2.11 hereof and as provided in Section 2.4 hereof (the "Conversion Price"). Dividends on the Preferred shall be in an amount equal to 8% per month annum and shall be cumulative irrespective of whether declared or paid and are payable in cash or in "PIK" (prorated for partial months) until as defined). Any dividend paid in full. Until the Company pays such unpaid Applicable Redemption Price PIK shall result in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, an 8% reduction in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock the Preferred. (b) The Company shall be adjusted have the right, subject to applicable law, to redeem the lesser of (A) Preferred, in whole or in part, at a redemption price equal to the Conversion Price and (B) the lowest Closing Bid Price during the period beginning for such Preferred plus any cumulated but unpaid dividends on the Preferred. The Company shall designate the Preferred and file a Certificate of Designation with terms and provisions consistent with those provided herein and otherwise acceptable to the holders of the Notes within thirty days of the date on which hereof. (c) The Company shall have the notice right at any time and from time to time after the expiration of redemption is delivered and ending the 60-day Temporary Reduced Warrant Exercise Period, to convert the Amount of the Notes into shares of its Preferred at the Conversion Price of the Preferred by notifying the holders of the Notes thereof in writing. Accrued but unpaid interest on the date on which Notes shall be paid in cash in connection with any such conversion. (d) The holder of any shares of Preferred shall have the Void Option Redemption Notice(s) is delivered right to sell to the Company; provided that no adjustment shall be made if , and the Company agrees to repurchase any shares of Preferred from such adjustment would result in an increase holder upon notice thereof at any time after the date which is three years from the consummation of the Conversion Price then Xxxxxxxx financing arrangements with the Company (as defined in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction4.2(iv) hereof).

Preferred Stock. If On and after the Company shall fail to redeem all second anniversary of the Series C Issue Date relating to shares of Convertible PIK Preferred Stock, dividends on such Convertible PIK Preferred Stock submitted for redemption shall be paid only in cash. Dividend payments made in shares of Convertible PIK Preferred Stock shall be made by issuing shares (other than or fractions thereof) with an aggregate Liquidation Value equal to the amount of such dividends. All dividends paid with respect to shares of Convertible PIK Preferred Stock pursuant to a dispute as this Section III shall be paid pro rata to the arithmetic calculation holders entitled thereto. All shares of Convertible PIK Preferred Stock issued as a dividend will thereupon be duly authorized, validly issued, fully paid and nonassessable. Holders of Convertible PIK Preferred Stock will not be entitled to any dividends, whether payable in cash, property or stock, in excess of the Applicable Redemption Price), full cumulative dividends provided for herein. Dividend payments which are in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock arrears shall bear interest at the an annual rate of 1.0% per month 8.5%, compounded quarterly from the date of the related Dividend Payment Date to the date such dividend is paid. Dividends payable on the Convertible PIK Preferred Stock for the first quarterly dividend period following the Issue Date (prorated or any other dividend payable for partial a period less than a full quarterly period) shall be computed on the basis of a 360-day year of twelve 30-day months) until paid in full. Until In the Company pays such unpaid Applicable Redemption Price in full to a holder case of shares of Series C Convertible PIK Preferred Stock submitted for redemptionissued on the Issue Date, dividends shall accrue and be cumulative from such holder shall have date. In the option (the “Void Optional Redemption Option”) to, in lieu case of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Convertible PIK Preferred Stock that issued as a dividend on shares of Convertible PIK Preferred Stock, dividends shall accrue and be cumulative from the Dividend Payment Date in respect of which such shares were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”)issued as a dividend. Upon the Company’s receipt Each fractional share of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption Convertible PIK Preferred Stock outstanding shall be null and void entitled to a ratably proportionate amount of all dividends accruing with respect to those shares each outstanding share of Series C Convertible PIK Preferred Stock submitted for redemption pursuant to this Section III, and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted all such dividends with respect to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned outstanding fractional shares of Series C Preferred Stock shall be adjusted to the lesser of cumulative and shall accrue (A) the Conversion Price whether or not declared), and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if payable in the same manner and at such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments times as provided for in this Section 8 III with respect to dividends on each outstanding share of Convertible PIK Preferred Stock. Each fractional share of Convertible PIK Preferred Stock outstanding shall also be entitled to a ratably proportionate amount of any other distributions made with respect to each outstanding share of Convertible PIK Preferred Stock, and all such distributions shall be payable in the same manner and at the same time as distributions on each outstanding share of Convertible PIK Preferred Stock. For purposes hereof, the term "legal holiday" shall mean any day on which banking institutions are authorized to close in New York, New York and the term "business day" shall mean any day other than a Saturday, Sunday or legal holiday. No dividend record date shall be the same as a date set for the redemption of any shares of Convertible PIK Preferred Stock under Section V. If a dividend record date fixed by the Board of Directors is prior to a redemption date then or theretofore set under Section V, it shall be at least six business days prior to such redemption date. Nothing contained herein shall limit the Board of Directors' discretion to establish a dividend record date that is subsequent to a redemption date then or theretofore established, without regard to the effect of such record date on the dividend 53 rights of holders of Convertible PIK Preferred Stock who elect to convert under Section VI prior to the redemption date. Holders of shares of Convertible PIK Preferred Stock that are redeemed under Section V on a redemption date that falls between the record date and the payment date for a dividend shall be entitled to receive the dividend, except to the extent the price paid upon redemption reflects such dividend as an accrued dividend as provided in Section V. Subject to the next paragraph of this Section III, dividends on account of arrears for any past dividend period may be declared and paid at any time, without reference to any Dividend Payment Date. No dividend or other distributions, other than dividends payable solely in shares of Junior Stock, shall be declared, paid or set apart for payment on shares of Junior Stock or any other capital stock of the Corporation which by its terms ranks junior as to dividends to the Convertible PIK Preferred Stock (the Junior Stock and any such other class or series of the Corporation's capital stock being herein referred to as "Junior Dividend Stock"), unless and until all accrued and unpaid dividends on the Convertible PIK Preferred Stock for all Dividend Payment Dates occurring on or before the payment date of such dividends or other distributions on Junior Dividend Stock shall have priority been paid or declared and set apart for payment. No payment on account of the purchase, redemption, retirement or other acquisition of shares of Junior Dividend Stock or any class or series of the Corporation's capital stock which by its terms ranks junior to payments the Convertible PIK Preferred Stock as to distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (the Junior Stock and any class or series of the Corporation's capital stock which by its terms rank junior to the Convertible PIK Preferred Stock as to such distributions being herein referred to as "Junior Liquidation Stock"), shall be made unless and until accrued and unpaid dividends on the Convertible PIK Preferred Stock for all Dividend Payment Dates occurring on or before such payment for such Junior Dividend Stock or Junior Liquidation Stock shall have been paid or declared and set apart for payment. No full dividends shall be declared, paid or set apart for payment on shares of any class or series of the Corporation's capital stock whether existing or hereafter issued and which by its terms ranks, as to dividends, on a parity with the Convertible PIK Preferred Stock, including the Corporation's 7.125% Convertible Preferred Stock (any such class or series of the Corporation's capital stock being herein referred to as "Parity Dividend Stock") for any period unless full cumulative dividends have been, or contemporaneously are, paid or declared and set apart for payment on the Convertible PIK Preferred Stock for all Dividend Payment Dates occurring on or before the payment date of such dividends on Parity Dividend Stock. No dividends shall be paid on Parity Dividend Stock except on dates on which dividends are paid on the Convertible PIK Preferred Stock. All dividends paid or declared and set apart for payment on the Convertible PIK Preferred Stock and any Parity Dividend Stock shall be paid or declared and set apart for payment pro rata so that the amount of dividend paid or declared and set apart for payment per share on the Convertible PIK Preferred Stock and the Parity Dividend Stock on any date shall in all cases bear to each other stockholders the same ratio that accrued and unpaid dividends to the date of payment on the Convertible PIK Preferred Stock and the Parity Dividend Stock bear to each other. No payment on account of the purchase, redemption, retirement or other acquisition of shares of Parity Dividend Stock or any class or series of the Corporation's capital stock which by its terms ranks on a parity with the Convertible PIK Preferred Stock as to distributions of assets upon liquidation, 54 dissolution or winding up of the Corporation, whether voluntary or involuntary, including the Corporation's 7.125% Convertible Preferred Stock (any such class or series of the Corporation's capital stock being herein referred to as "Parity Liquidation Stock"), shall be made, and, other than dividends to the extent permitted by the preceding paragraph, no distributions shall be declared, paid or set apart for payment on shares of Parity Dividend Stock or Parity Liquidation Stock, unless all accrued and unpaid dividends on the Convertible PIK Preferred Stock for all Dividend Payment Dates occurring on or before such payment for, or the payment date of such distributions on, such Parity Dividend Stock or Parity Liquidation Stock shall have been paid or declared and set apart for payment. Any reference to "distribution" contained in this Section III shall not be deemed, except as expressly stated, to include any distribution made in connection with a Major Transactionany liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary.

Preferred Stock. If a. As soon as practicable after execution of this Agreement, Epitope, as sole shareholder of A&W, shall take all steps necessary to cause A&W's articles of incorporation to be amended to read as set forth in Exhibit A and to cause an officer's certificate to be filed establishing the Company shall fail rights and preferences of preferred stock as stated in Exhibit B, subject to redeem all approval by A&W's board of directors. As a result of the Series C Preferred Stock submitted for redemption (other than pursuant to a dispute as to the arithmetic calculation amendment and filing of the Applicable Redemption Price)officer's certificate, in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder A&W shall have the option ability to issue two series of preferred stock having the rights and preferences stated in Exhibits A and B. b. At Closing, as defined below, A&W shall issue 100 shares of Class A preferred stock to Epitope (the “Void Optional Redemption Option”) to"Class A Preferred Shares"), in lieu of redemptionhaving a redemption value equal to the First Loan amount. A&W shall redeem the Class A Preferred Shares beginning no later than three years after the Closing Date, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paidas defined below, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price redemption value as required by Exhibit A. The holders of the Class A Preferred Shares shall have the right to such holderreceive a dividend equal to 33.3 percent of any dividends paid by A&W to holders of A&W Common Stock, shall have a liquidation preference equal to the redemption value, and shall have no voting rights, except as required by law. c. At Closing, A&W shall issue 100 shares of Class B preferred stock to Epitope (i) the notice(s) "Class B Preferred Shares"), having a redemption value for the first five years after the Closing Date equal to 80 percent of redemption the Second Loan amount and thereafter equal to 90 percent of the Second Loan amount. The Class B Preferred Shares shall be null and void with respect subject to those shares redemption, at the option of Series C A&W, upon the terms set forth in Exhibit A. The holders of the Class B Preferred Stock submitted for redemption and for which Shares shall have the Applicable Redemption Price has not been paidright to receive a dividend equal to 66.7 percent of any dividends paid by A&W to holders of A&W Common Stock, (ii) the Company shall immediately return any Series C Preferred Stock submitted have a liquidation preference equal to the Company by each such holder for redemption Second Loan amount, and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to the lesser of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionno voting rights, except as required by law.

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

Preferred Stock. If the Company shall fail (1) The board of directors is expressly authorized to redeem all adopt and to cause to be executed and filed, without further approval of the Series C stockholders, an amendment or amendments to this Restated Certificate of Incorporation to divide any unissued shares of Preferred Stock submitted for redemption (other than pursuant into one or more classes and into series within any class or classes of Preferred Stock, to a dispute as to authorize the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect issuance of such unredeemed Series C Preferred Stock shall bear interest at shares for such consideration (not less than par value in the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder case of shares having a par value) as the board of Series C Preferred Stock submitted for redemptiondirectors may determine, and to determine in any one or more respects from time to time before issuance of such unissued shares; (a) the distinctive designation of such class or series and the number of shares to constitute such class or series and whether shares of such class are to have a par value and the par value of any shares which are to have a par value, provided that, unless otherwise stated in any such resolution or resolutions, such holder number of shares may be increased or decreased by the board of directors; (b) the annual dividend rate on the shares of such class or series and the date or dates from which dividends shall have accumulate thereon as herein provided; (c) the option (the “Void Optional Redemption Option”) to, in lieu times of redemption, require the Company to promptly return to such holder(s) all redemption of the shares of Series C such class or series and the prices which the holders of shares of such class or series shall be entitled to receive upon the redemption thereof, which prices may vary at different redemption dates and may also be different with respect to shares redeemed through the operation of any retirement or sinking fund than with respect to shares otherwise redeemed; (d) the amount which the holders of shares of such class or series shall be entitled to receive upon the voluntary or involuntary liquidation, dissolution, or winding up of the corporation; (e) whether or not the shares of such class or series shall be subject to the operation of a purchase or sinking fund, and, if so, the extent to and manner in which the fund shall be applied to the purchase or redemption of the shares of such class or series for retirement or for other corporate purposes and the terms and provisions relative to the operation thereof; (f) whether or not the shares of such class or series shall, at the option of the holder or the corporation or both, be convertible into, or exchangeable for shares of stock of any other class or series, and if so convertible or exchangeable, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same; and (g) such other preferences, rights, restrictions and qualifications as shall not be inconsistent herewith and as are permitted by the New Jersey Business Corporation Act. (2) The board of directors is expressly authorized to determine voting rights for the holders of the shares of any class or series of Preferred Stock, provided that the voting rights shall be limited to any or all of the following: (a) the right to elect, voting as a class, a maximum of two directors upon default of the equivalent of six quarterly dividends, whether or not the defaulted dividends occurred in consecutive periods, and such right will remain in effect until cumulative dividends have been paid in full or until non-cumulative dividends have been paid regularly for at least one year; (b) the right to approve, by at least a majority of the outstanding shares of the class or classes of Preferred Stock that were submitted for redemption by affected, any increase in the authorized number of shares of such holder(sclass or classes or the creation of a class of equal rank; (c) under this Section 8 and for which the Applicable Redemption Price has not been paidright to approve, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment at least two-thirds of the full Applicable Redemption Price to outstanding shares of Preferred Stock, the creation of a senior equity security, provided that the board of directors may create a senior equity security without such holder, stockholder vote if (i) stockholders authorized such action by the notice(s) board of redemption shall be null and void with respect to those shares directors at the time the existing class of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, was created or (ii) the Company shall immediately return any Series C holders of shares of the existing class of Preferred Stock submitted previously received adequate notice of the redemption thereof, which redemption must occur within 90 days, unless all or part of the existing issue is being retired with proceeds from the sale of the new senior equity security; and (d) the right to approve, by at least two-thirds of the outstanding shares of the class of Preferred Stock affected, the adoption of any amendment to the Company by each such holder for redemption and for which Restated Certificate of Incorporation or the Applicable Redemption Price has not been paid and (iii) the Conversion Price by-laws that would materially change existing terms of such returned class of Preferred Stock, provided that if all series of a class of Preferred Stock are not equally affected by such amendment, then such amendment shall receive the approval of two-thirds of the outstanding shares of Series C the class and, in addition, two-thirds of the outstanding shares of the series that will have a diminished status. (3) The board of directors may also change the designation or number of shares or the relative rights, preferences and limitations of any of the shares of any theretofore established class or series of the Preferred Stock shall be adjusted to the lesser no shares of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which class or series have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionbeen issued.

Preferred Stock. If The "Fully Diluted Number of Shares of InfoGation Series B-1 Stock" means the Company shall fail to redeem all aggregate number of the shares of InfoGation Series C B-1 Preferred Stock submitted for redemption (other than pursuant to a dispute as outstanding immediately prior to the arithmetic calculation Effective Time. The "Series B-1 Preferred Stock Earnout" shall be the fraction (x) having a numerator equal to 15% of the Applicable Redemption Priceany quarterly license royalty revenue payments (for contracts with total license royalty revenue of at least $20 per unit) received by BSQUARE from Clarion Co., Ltd. ("Clarion Co."), Clarion Corporation of America ("CCA") and/or any Affiliates (as defined in Section 3.16) of Clarion Co. or CCA (collectively, "Clarion"), in addition connection with licensing or similar arrangements with automobile manufacturers or automobile parts manufacturers where such arrangements involve the licensing by Clarion of InfoGation technology (the "Royalty Revenue Payments"), which shall be made in the form of unregistered BSQUARE Common Stock; provided, however, that in no event shall BSQUARE be required to issue any remedy such holder additional shares of BSQUARE Common Stock pursuant to the Series C B-1 Preferred Stock may have under this Certificate Earnout in the event that the sum of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder aggregate number of shares of BSQUARE Common Stock issued pursuant to the Series C B-1 Preferred Stock submitted Earnout, when added to the number of shares of BSQUARE Common Stock previously issued (or reserved for redemption, such holder shall have the option (the “Void Optional Redemption Option”issuance) to, in lieu of redemption, require the Company as consideration hereunder is equal to promptly return to such holder(s) all 19.9% of the outstanding shares of Series C Preferred BSQUARE Common Stock that were submitted for redemption by such holder(s) under this Section 8 and for which as of the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”)Effective Time. Upon the Company’s receipt occurrence of such Void Optional Redemption Notice(s) event, any remaining Royalty Revenue Payments shall be paid in cash. The BSQUARE Common Stock to be delivered as payment for the Royalty Revenue Payments shall be valued by determining the average closing price of such stock over a 20-business-day period beginning 10 business days before the end of each calendar quarter and prior to payment ending 10 business days after the end of the full Applicable Redemption Price quarter to such holderwhich the applicable Royalty Revenue Payments pertain, (i) the notice(s) of redemption and shall be null made following BSQUARE's receipt from Clarion of 100% of the royalty revenue payments owing to BSQUARE for such quarter and void with respect (y) having a denominator equal to those the Fully Diluted Number of Shares of InfoGation Series B-1 Preferred Stock. Any such shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred BSQUARE Common Stock shall be adjusted delivered by or on behalf of BSQUARE to the lesser former holders of InfoGation Series B-1 Preferred Stock within 30 calendar days after the receipt by BSQUARE from Clarion of 100% of the royalty revenue payments owing to BSQUARE for such quarter. Notwithstanding the foregoing, the Series B-1 Preferred Stock Earnout shall forever cease and terminate on the earlier of (Aa) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice holders of redemption is delivered InfoGation B-1 Preferred Stock have received cash and/or shares of BSQUARE Common Stock with an aggregate value of $3,000,000 (valued at the time of issuance) from the Series B-1 Preferred Stock Earnout (and ending on expressly excluding the date on which the Void Option Redemption Notice(s) is delivered BSQUARE Common Stock paid pursuant to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transaction2.1(b)(i)(B)(2) above), or (b) five years from the Effective Time.

Preferred Stock. If the Company shall fail to redeem all of the Series C (a) Issue any Preferred Stock submitted for redemption (or any Disqualified Stock, other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of shares of Series C Preferred Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holder, (i) the notice(s) of redemption shall be null and void with respect to those shares of Series C any Preferred Stock submitted for redemption and for which does not require any dividends, payments, redemptions or other distributions of any kind until at least one year after the Applicable Redemption Price has not been paidlater of the Revolving Credit Termination Date or the Term Loan Maturity Date, (ii) the Company shall immediately return any Series C Preferred existing Lobdxxx Xxxferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) after the Conversion Price Covenant Reversion Date any other Preferred Stock or Disqualified Stock which meets all of the requirements for the issuance by the Company of Subordinated Debt (i.e., all payments and other obligations thereunder are expressly subordinated and junior in right and priority of payment to the Obligations and other Indebtedness of such returned shares of Series C Person to the Lenders in manner and by agreement satisfactory in form and substance to the Administrative Agent and such Preferred Stock or Disqualified Stock is subject to such other terms and provisions, including without limitation maturities, covenants, defaults, rates and fees, acceptable to the Administrative Agent), and such Preferred Stock and Disqualified Stock allowed under this clause (iii) shall be adjusted treated as if it were Subordinated Debt for all purposes of this Agreement and is defined herein as "Permitted Disqualified Stock". (b) Make any amendment or modification to any Lobdxxx Xxxferred Stock Document, other than the adjustment in the price of the Lobdxxx Xxxferred Stock made prior to the lesser Effective Date based on post closing adjustments and which do not result in any additional obligations of (A) Lobdxxx xx of the Conversion Price and (B) Company or any of its Restricted Subsidiaries, or enter into any other agreement or document relating thereto other than the lowest Closing Bid Price during documents listed on Schedule 4.18 or make, pay, declare or authorize any dividend, payment or other distribution with respect to any Preferred Stock or any dividend, payment or distribution in connection with the period beginning redemption, purchase, retirement or other acquisition, directly or indirectly, of any Preferred Stock other than as required under the Lobdxxx Xxxferred Stock Documents listed on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered Schedule 4.18; provided, however, that no dividend, payment or other distribution in respect to the Company; provided that no adjustment shall Preferred Stock or dividend, payment or distribution in connection with the redemption, purchase, retirement or other acquisition, directly or indirectly, of any Preferred Stock, including those required under the Lobdxxx Xxxferred Stock Documents, will be made if such adjustment any Event of Default exists under Section 7.1(a) or would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice. For the avoidance of doubt, payments provided for in this Section 8 shall have priority to payments to other stockholders in connection with a Major Transactionbe caused thereby.

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

Preferred Stock. If Parent and Seller agree to cause the Company shall fail to redeem all of file the Series C Preferred Stock submitted for redemption New Charter and, if requested by Investor in writing no less than ten (other than pursuant to a dispute as 10) business days prior to the arithmetic calculation of Closing, issue at the Applicable Redemption Price)Closing non-voting preferred stock (the “Preferred Stock”) in two series, in addition to any remedy such holder of Series C designated as Class A Preferred Stock may have under this Certificate of Designation Shares and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Class B Preferred Shares. The Preferred Stock shall bear interest market rates of return (based on written market data reasonably acceptable to Seller) and have other terms prevailing in the market at the rate time of 1.0% per month (prorated for partial months) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder issuance of shares of Series C the Preferred Stock submitted for redemption, such holder shall have determined by Investor consistent with terms prevailing in the option (market at the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all time of the shares issuance of Series C the Preferred Stock and reasonably acceptable to Seller, including any applicable call provisions (it being understood that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”). Upon the Company’s receipt of such Void Optional Redemption Notice(s) and Investor may determine prior to payment of Closing whether the full Applicable Redemption Price to such holder, (i) dividends on the notice(s) of redemption shall be null and void with respect to those shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paid, (ii) the Company shall immediately return any Series C Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid and (iii) the Conversion Price of such returned shares of Series C Preferred Stock shall be adjusted to paid in cash or in kind or a combination of cash and in kind, with the lesser duration of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which the notice of redemption is delivered and ending on the date on which the Void Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations right to make any pay dividends in kind being consistent with similar securities). The aggregate amount of Preferred Stock issued shall be at the sole discretion of Investor, but in no event shall the Class B Preferred Stock exceed a maximum aggregate issuance amount of $275,000,000. Parent agrees to purchase at the Closing all Class B Preferred Shares issued pursuant to this Section 6.1(g). To the extent that more than $275,000,000 in aggregate amount of Preferred Stock is required to be issued in order to obtain the Target Ratings from the Rating Agencies, the Company shall issue Preferred Stock in such required amounts, not to exceed $225,000,000 in the aggregate, to Investor for cash at the Closing, or at the option of the Investor, such Preferred Stock will be purchased by third party investors. The shares sold to Investor or to third party investors shall be designated as Class A Preferred Shares. The Class B Preferred Shares will be sold to Parent in consideration of the cancellation of an equal notional amount of Intercompany Indebtedness. Any Class A Preferred Shares issued pursuant to this Section 6.1(g) shall have the same terms as the Class B Preferred Shares, except that dividends and liquidation payments which have accrued prior on the Class B Preferred Shares will not be paid if and so long as there exists a default in the payment of dividends or liquidation payments with respect to the date Class A Preferred Shares (provided that dividends shall continue to accrue with respect to the Class B Preferred Shares during any such period of such notice. For default) and the avoidance of doubt, payments provided Class B Preferred Shares will be callable by the Company for in this Section 8 shall have priority an amount per share equal to payments to other stockholders in connection with a Major Transactiontheir liquidation preference plus accrued dividends.

Preferred Stock. If the Company shall fail to redeem all of the Series C Acquiror Preferred Stock submitted for redemption Stock") and (other than pursuant to a dispute as to the arithmetic calculation of the Applicable Redemption Price), in addition to any remedy such holder of Series C Preferred Stock may have under this Certificate of Designation and such holder’s applicable Purchase Agreement, the Applicable Redemption Price payable in respect of such unredeemed Series C Preferred Stock shall bear interest at the rate of 1.0% per month (prorated for partial monthsiii) until paid in full. Until the Company pays such unpaid Applicable Redemption Price in full to a holder of 20,000,000 shares of Preference Stock, par value $.01 per share, of which 2,000,000 shares have been designated as Series C Preferred E Junior Participating Preference Stock submitted for redemption, such holder shall have the option (the “Void Optional Redemption Option”) to, in lieu of redemption, require the Company to promptly return to such holder(s) all of the shares of "Acquiror Series C Preferred Stock that were submitted for redemption by such holder(s) under this Section 8 and for which the Applicable Redemption Price has not been paid, by sending written notice thereof to the Company (the “Void Optional Redemption Notice”E Preference Stock"). Upon the Company’s receipt As of such Void Optional Redemption Notice(s) and prior to payment of the full Applicable Redemption Price to such holderDecember 8, 1998, (i) the notice(s) of redemption shall be null and void with respect to those 286,283,375 shares of Series C Preferred Stock submitted for redemption and for which the Applicable Redemption Price has not been paidAcquiror Common Stock, (ii) the Company shall immediately return any 771,920 shares of Acquiror Preferred Stock (which are represented by 19,298,000 Series C Depositary Shares, each representing one twenty-fifth of a share of Acquiror Preferred Stock submitted to the Company by each such holder for redemption and for which the Applicable Redemption Price has not been paid Stock) and (iii) the Conversion Price of such returned no shares of Acquiror Series C Preferred Stock shall be adjusted to the lesser E Preference Stock, were issued and outstanding. As of (A) the Conversion Price and (B) the lowest Closing Bid Price during the period beginning on the date on which hereof, 14,098,106 shares of Acquiror Common Stock are held in the notice Acquiror treasury. Schedule 4.3(a) of redemption is delivered the Acquiror Disclosure Schedule sets forth the number of shares of Acquiror Common Stock reserved for future issuance upon exercise of any unexpired and ending on unexercised outstanding option, whether or not vested or exercisable in accordance with its terms, to purchase shares of Acquiror Common Stock ("Acquiror Options") granted and outstanding as of the date on which hereof under any Acquiror stock option plan (the Void "Acquiror Option Redemption Notice(s) is delivered to the Company; provided that no adjustment shall be made if such adjustment would result in an increase Plans"). As of the Conversion Price then in effect. A holder’s delivery of a Void Optional Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of this Agreement, Acquiror has not granted any stock appreciation rights or any other contractual rights the value of which is derived from the financial performance of Acquiror or the value of shares of Acquiror Common Stock. Except as disclosed in Schedule 4.3(a) of the Acquiror Disclosure Schedule, there are no obligations, contingent or otherwise, of Acquiror or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Acquiror Common Stock or the capital stock or ownership interests of any Subsidiary or to provide funds to or make any material investment (in the form of a loan, capital contribution or otherwise) in any such noticeSubsidiary or any other entity other than guarantees of bank obligations or indebtedness for borrowed money of Subsidiaries entered into in the ordinary course of business. For All of the avoidance outstanding shares of doubtcapital stock (including shares which may be issued upon exercise of outstanding options) or other ownership interests of each of the Acquiror's domestic Subsidiaries are duly authorized, payments provided validly issued, fully paid and nonassessable and, except as disclosed in Schedule 4.3(a) of the Acquiror Disclosure Schedule, all such shares (other than director's qualify shares and similar shares in the case of foreign Subsidiaries) are owned by the Acquiror or another Subsidiary of Acquiror free and clear of all security interests, liens, claims, pledges, agreements, limitations on the Acquiror's voting rights, charges or other encumbrances or restrictions on transfer of any nature (other than restrictions imposed by law). (b) There is no Voting Debt of Acquiror or any of its Subsidiaries issued and outstanding. Except as set forth in Schedule 4.3(b) of the Acquiror Disclosure Schedule or as reserved for in this Section 8 shall have priority future grants of options under the Acquiror Stock Plans as of the date hereof, (i) there are no shares of capital stock of any class of, or any security exchangeable into or exercisable for such capital stock, issued, reserved for issuance or outstanding; (ii) there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to payments which Acquiror or any of its Subsidiaries is a party (or by which it is bound) obligating Acquiror or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other stockholders in connection ownership interests (including Voting Debt) of Acquiror or any of its Subsidiaries or obligating Acquiror or any of its Subsidiaries to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement; and (iii) there are no voting trusts, proxies or other voting agreements or understandings with a Major Transaction.respect to the shares of capital stock of Acquiror to which Acquiror or