Common use of Protection Provisions Clause in Contracts

Protection Provisions. So long as any shares of Series H Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the General Corporate Law) of the holders of at least a majority of the then outstanding shares of Series H Preferred Stock: (a) alter or change the rights, preferences or privileges of the Series H Preferred Stock; (b) alter or change the rights, preferences or privileges of any capital stock of the Corporation so as to affect adversely the Series H Preferred Stock; (c) create any new class or series of capital stock having a preference over the Series H Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article IX hereof, "SENIOR SECURITIES"); (d) increase the authorized number of shares of Series H Preferred Stock; (e) issue any shares of Series H Preferred Stock other than pursuant to the Securities Purchase Agreement; or (f) redeem, or declare or pay any cash dividend or distribution on, any capital stock of the Corporation ranking junior to the Series H Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (including the Common Stock). If holders of at least a majority of the then outstanding shares of Series H Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series H Preferred Stock pursuant to subsection (a) above, then the Corporation shall deliver notice of such approved change to the holders of the Series H Preferred Stock that did not agree to such alteration or change (the "DISSENTING Holders") and the Dissenting Holders shall have the right, for a period of thirty (30) days, to convert all of their shares of Series H Preferred Stock pursuant to the terms of this Certificate of Designations as they existed prior to such alteration or change or to continue to hold their shares of Series H Preferred Stock.

Protection Provisions. So long as any shares of Series H A Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the General Corporate Law) of the holders of at least a majority of the then outstanding shares of Series H A Preferred Stock: (a) alter or change the rights, preferences or privileges of the Series H A Preferred Stock; (b) alter or change the rights, preferences or privileges of any capital stock of the Corporation so as to affect adversely the Series H A Preferred Stock; (c) create any new class or series of capital stock having a preference over the Series H A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article IX hereof, "SENIOR SECURITIESSenior Securities"); (d) create any new class or series of capital stock ranking pari passu with the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article IX hereof; "Pari Passu Securities"); (e) increase the authorized number of shares of Series H A Preferred Stock; (e) issue any shares of Series H Preferred Stock other than pursuant to the Securities Purchase Agreement; or (f) redeem, or declare or pay any cash dividend or distribution on, any capital stock of the Corporation ranking junior to the Series H Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (including the Common Stock)Junior Securities. If holders of at least a majority of the then outstanding shares of Series H A Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series H A Preferred Stock pursuant to subsection (a) above, then the Corporation shall deliver notice of such approved change to the holders of the Series H A Preferred Stock that did not agree to such alteration or change (the "DISSENTING Dissenting Holders") and the Dissenting Holders shall have the right, for a period of thirty (30) days, to convert all of their shares of Series H Preferred Stock pursuant to the terms of this Certificate of Designations Designation as they existed prior to such alteration or change or to continue to hold their shares of Series H A Preferred Stock.

Protection Provisions. So long as any shares of Series H B Preferred Stock Shares are outstanding, the Corporation Company shall not, prior to the date on which the Registration Statement is declared effective and, thereafter, without first obtaining the approval (by vote or written consent, as provided by the General Corporate Business Corporation Law) of the holders of at least a majority (i) all of the then outstanding shares of Series H B Preferred StockShares with respect to subsection (a) below or (ii) at least 66.67% of the then outstanding Series B Preferred Shares with respect to subsections (b) through (h) below: (a) alter or change the rights, preferences or privileges of the Series H B Preferred StockShares; (b) alter or change the rights, preferences or privileges of any share capital stock of the Corporation Company so as to affect adversely the Series H B Preferred StockShares; (c) create any new class or series of capital stock having a preference over the Series H B Preferred Stock Shares as to distribution of assets upon liquidation, dissolution or winding up of the Corporation Company (as previously defined in Article IX hereof, "SENIOR SECURITIES"); (d) create any new class or series of capital stock ranking PARI PASSU with the Series B Preferred Shares as to distribution of assets upon liquidation, dissolution or winding up of the Company (as previously defined in Article IX hereof, "PARI PASSU Securities") on or prior to that date which is one year after the First Issuance Date; (e) increase the authorized number of shares of Series H B Preferred StockShares; (ef) issue any shares of Senior Securities or issue any shares of PARI PASSU Securities on or prior to that date which is one year after the First Issuance Date; (g) issue any shares of Series H B Preferred Stock Shares other than pursuant to the Securities Purchase Agreement; or (fh) redeem, or declare or pay any cash dividend or distribution on, any capital stock of the Corporation ranking junior to the Series H Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (including the Common Stock). If holders of at least a majority of the then outstanding shares of Series H Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series H Preferred Stock pursuant to subsection (a) above, then the Corporation shall deliver notice of such approved change to the holders of the Series H Preferred Stock that did not agree to such alteration or change (the "DISSENTING Holders") and the Dissenting Holders shall have the right, for a period of thirty (30) days, to convert all of their shares of Series H Preferred Stock pursuant to the terms of this Certificate of Designations as they existed prior to such alteration or change or to continue to hold their shares of Series H Preferred StockJunior Securities.

Protection Provisions. So long as any shares of Series H Preferred Stock are outstanding, the Corporation Company shall notnot take any of the following corporate actions (whether by merger, consolidation or otherwise) without first obtaining the approval (by vote or written consent, as provided by the General Corporate Law) of the holders of at least a majority 51% of the then outstanding shares of Series H Preferred StockStock then outstanding: (a) alter or change the rights, preferences or privileges of the Series H Preferred Stock, or increase the authorized number of shares of Preferred Stock; (b) alter or change the rights, preferences or privileges of any capital stock of the Corporation Company so as to affect adversely the Series H Preferred Stock or otherwise alter or change the rights, preferences or privileges of the Preferred Stock in relation to the shares of the Common Stock; (c) create or issue any new class or series of capital stock having a preference over of the Series H Company specifically ranking, by its terms, on parity with or senior to the Preferred Stock Stock, in each case as to distribution of assets upon liquidation, dissolution or winding up of the Corporation a Liquidation Event (as previously defined in Article IX hereof, "SENIOR SECURITIES"the Certificate of Designations); (d) increase the authorized number of shares of Series H Preferred Stock; (e) issue any shares of Series H Preferred Stock other than pursuant to the Securities Purchase Agreement; or; (fe) redeem, repurchase or otherwise acquire, or declare or pay any cash dividend or distribution on, any class or series of capital stock of the Corporation ranking junior to Company, other than the Series H Preferred Stock as to distribution Stock; (f) increase the par value of assets upon liquidation, dissolution or winding up of the Corporation (including the Common Stock). If ; (g) redeem, repurchase, prepay or otherwise acquire any outstanding debt securities or indebtedness of the Company, except as expressly required by the terms of such securities or indebtedness; (h) enter into any agreement, commitment, understanding or other arrangement to take any of the foregoing actions; (i) cause or authorize any subsidiary of the Company to engage in any of the foregoing actions; or (j) consummate a transaction that would constitute a Dilutive Issuance (as defined in the Exchange Agreement or the Warrants) without the prior written approval of the holders of at least a majority of the then outstanding shares of Series H Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges 51% of the shares of Series H Preferred Stock pursuant to subsection then outstanding unless Stockholder Approval has been obtained. Notwithstanding the foregoing, no action set forth in subsections (a) above, then the Corporation shall deliver notice of such through (i) above that is approved change to by the holders of at least 51% of the Series H shares of Preferred Stock that did not agree then outstanding pursuant to this Section 4.28 shall be permitted to the extent that, by its terms, such alteration or change (the "DISSENTING Holders") and the Dissenting Holders shall have the right, for a period of thirty (30) days, action applies to convert less than all of their shares the holders of Series H Preferred Stock pursuant to the terms of this Certificate of Designations as they existed prior to such alteration or change or to continue to hold their shares of Series H Preferred Stockthen outstanding.

Protection Provisions. So long as any shares of Series H B Preferred Stock are outstanding, the Corporation shall notnot take any of the following corporate actions (whether by merger, consolidation or otherwise) without first obtaining the approval (by vote or written consent, as provided by the General Corporate LawNGCL) of the holders of at least a majority of the then outstanding shares of Series H Preferred StockMajority Holders: (ai) alter or change the rights, preferences or privileges of the Series H B Preferred Stock, or increase the authorized number of shares of Series B Preferred Stock; (bii) alter or change the rights, preferences or privileges of any capital stock of the Corporation so as to affect adversely the Series H B Preferred Stock; (ciii) create or issue any new class Senior Securities or series of capital stock having a preference over the Series H Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article IX hereof, "SENIOR SECURITIES")Pari Passu Securities; (d) increase the authorized number of shares of Series H Preferred Stock; (eiv) issue any shares of Series H B Preferred Stock other than pursuant to the Securities Purchase Agreement; or; (fv) redeem, repurchase or otherwise acquire, or declare or pay any cash dividend or distribution on, any capital stock Junior Securities; (vi) increase the par value of the Common Stock; (vii) issue any debt securities or incur any indebtedness that would have any preferences over the Series B Preferred Stock upon liquidation of the Corporation, or redeem, repurchase, prepay or otherwise acquire any outstanding debt securities or indebtedness of the Corporation, except as expressly required by the terms of such securities or indebtedness; provided, however, this Paragraph (vii) shall not apply to any financing with any lender where (x) the interest rate, per annum, applicable to such financing is no greater than the highest rate of interest published as the “Prime Rate” in the “Money Rates” section of the Wall Street Journal from time to time (or, in the event such rate of interest is no longer reported in the Wall Street Journal, any other commercially reasonable method of determining such rate of interest as is satisfactory to the Majority Holders), plus 5%, and (y) the facility fees, up-front fees, commitment fees, set up fees or other similar fees applicable to such financing are no more than, in the aggregate, 1.5% of the total principal amount available to be borrowed pursuant to such financing, so long as neither type of financing in (A) or (B) above involves any equity component; (viii) enter into any agreement, commitment, understanding or other arrangement to take any of the foregoing actions; or (ix) cause or authorize any subsidiary of the Corporation ranking junior to engage in any of the foregoing actions. Notwithstanding the foregoing, no change pursuant to this Article XII shall be effective to the Series H Preferred Stock as extent that, by its terms, it applies to distribution of assets upon liquidation, dissolution or winding up less than all of the Corporation (including the Common Stock). If holders of at least a majority of the then outstanding shares of Series H B Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series H Preferred Stock pursuant to subsection (a) above, then the Corporation shall deliver notice of such approved change to the holders of the Series H Preferred Stock that did not agree to such alteration or change (the "DISSENTING Holders") and the Dissenting Holders shall have the right, for a period of thirty (30) days, to convert all of their shares of Series H Preferred Stock pursuant to the terms of this Certificate of Designations as they existed prior to such alteration or change or to continue to hold their shares of Series H Preferred Stockoutstanding.

Protection Provisions. So From the date hereof until the Closing Date and continuing thereafter for so long as any shares of Series H 2006 Preferred Stock are outstanding, other than the Corporation exchange of 2005 Preferred Stock for 2006 Preferred Stock hereunder pursuant to the MFN Rights, the Company shall notnot take any of the following corporate actions (whether by merger, consolidation or otherwise) without first obtaining the written approval (by vote or written consent, as provided by the General Corporate Law) of the holders of at least a majority 65% of the then outstanding shares of Series H 2006 Preferred StockStock then outstanding: (a) alter or change the rights, preferences or privileges of the Series H 2006 Preferred Stock, or increase the authorized number of shares of 2006 Preferred Stock; (b) alter or change the rights, preferences or privileges of any capital stock of the Corporation Company so as to affect adversely the Series H 2006 Preferred Stock or otherwise alter or change the rights, preferences or privileges of the 2006 Preferred Stock in relation to the shares of the Common Stock; (c) create or issue any new class or series of capital stock having a preference over of the Series H Company specifically ranking, by its terms, on parity with or senior to the 2006 Preferred Stock Stock, in each case as to distribution of assets upon liquidation, dissolution or winding up of the Corporation a Liquidation Event (as previously defined in Article IX hereofthe Certificate of Amendment) (it being understood, "SENIOR SECURITIES"acknowledged and agreed by the Purchaser that the 2005 Preferred Stock is senior to the 2006 Preferred Stock in respect of distribution of assets upon a Liquidation Event); (d) increase the authorized number of shares of Series H Preferred Stock; (e) issue any shares of Series H 2006 Preferred Stock other than pursuant to the Securities Purchase Agreement; or; (fe) redeem, repurchase or otherwise acquire, or declare or pay any cash dividend or distribution on, any class or series of capital stock of the Corporation ranking junior to Company, other than the Series H 2006 Preferred Stock as to distribution or the 2005 Preferred Stock; (f) increase the par value of assets upon liquidation, dissolution or winding up of the Corporation (including the Common Stock; (g) redeem, repurchase, prepay or otherwise acquire any outstanding debt securities or indebtedness of the Company, except as expressly required by the terms of such securities or indebtedness; (h) enter into any agreement, commitment, understanding or other arrangement to take any of the foregoing actions; (i) cause or authorize any Subsidiary of the Company to engage in any of the foregoing actions; or (j) consummate a transaction that would constitute a Dilutive Issuance (as defined in the Certificate of Amendment). If Notwithstanding the foregoing, no action set forth in subsections (a) through (j) above that is approved by the holders of at least a majority of the then outstanding shares of Series H Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges 51% of the shares of Series H 2006 Preferred Stock then outstanding pursuant to subsection (a) abovethis Section 4.27 shall be permitted to the extent that, then the Corporation shall deliver notice by its terms, such action applies to less than all of such approved change to the holders of the Series H 2006 Preferred Stock that did then outstanding. The Company shall not agree to such alteration amend, restate or change (the "DISSENTING Holders") and the Dissenting Holders shall have the rightfile any certificate of designation in respect of, for a period its certificate of thirty (30) days, to convert all of their shares of Series H Preferred Stock pursuant incorporation prior to the terms Closing, except through the filing of this the Certificate of Designations Amendment substantially in the form attached hereto as they existed prior to such alteration or change or to continue to hold their shares of Series H Preferred StockExhibit A as contemplated hereby.

Protection Provisions. So long as any shares of Series H A Preferred Stock are outstanding, the Corporation shall notnot take any of the following corporate actions (whether by merger, consolidation or otherwise) without first obtaining the approval (by vote or written consent, as provided by the General Corporate LawNGCL) of the holders of at least a majority of the then outstanding shares of Series H Preferred StockMajority Holders: (ai) alter or change the rights, preferences or privileges of the Series H A Preferred Stock, or increase the authorized number of shares of Series A Preferred Stock; (bii) alter or change the rights, preferences or privileges of any capital stock of the Corporation so as to affect adversely the Series H A Preferred Stock; (ciii) create or issue any new class Senior Securities or series of capital stock having a preference over the Series H Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article IX hereof, "SENIOR SECURITIES")Pari Passu Securities; (d) increase the authorized number of shares of Series H Preferred Stock; (eiv) issue any shares of Series H A Preferred Stock other than pursuant to the Securities Purchase Agreement; or; (fv) redeem, repurchase or otherwise acquire, or declare or pay any cash dividend or distribution on, any capital stock Junior Securities; (vi) increase the par value of the Common Stock; (vii) issue any debt securities or incur any indebtedness that would have any preferences over the Series A Preferred Stock upon liquidation of the Corporation, or redeem, repurchase, prepay or otherwise acquire any outstanding debt securities or indebtedness of the Corporation, except as expressly required by the terms of such securities or indebtedness; provided, however, this Paragraph (vii) shall not apply to any financing with any lender where (x) the interest rate, per annum, applicable to such financing is no greater than the highest rate of interest published as the “Prime Rate” in the “Money Rates” section of the Wall Street Journal from time to time (or, in the event such rate of interest is no longer reported in the Wall Street Journal, any other commercially reasonable method of determining such rate of interest as is satisfactory to the Majority Holders), plus 5%, and (y) the facility fees, up-front fees, commitment fees, set up fees or other similar fees applicable to such financing are no more than, in the aggregate, 1.5% of the total principal amount available to be borrowed pursuant to such financing, so long as neither type of financing in (A) or (B) above involves any equity component; (viii) enter into any agreement, commitment, understanding or other arrangement to take any of the foregoing actions; or (ix) cause or authorize any subsidiary of the Corporation ranking junior to engage in any of the foregoing actions. Notwithstanding the foregoing, no change pursuant to this Article XII shall be effective to the Series H Preferred Stock as extent that, by its terms, it applies to distribution of assets upon liquidation, dissolution or winding up less than all of the Corporation (including the Common Stock). If holders of at least a majority of the then outstanding shares of Series H A Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series H Preferred Stock pursuant to subsection (a) above, then the Corporation shall deliver notice of such approved change to the holders of the Series H Preferred Stock that did not agree to such alteration or change (the "DISSENTING Holders") and the Dissenting Holders shall have the right, for a period of thirty (30) days, to convert all of their shares of Series H Preferred Stock pursuant to the terms of this Certificate of Designations as they existed prior to such alteration or change or to continue to hold their shares of Series H Preferred Stockoutstanding.