Common use of Protective Provisions Clause in Contracts

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series B Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series B Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, in a manner that adversely affects the holders of shares of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so So long as shares of Series B B-2 Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval of the Holders of at least two-thirds (by vote or written consent, as provided by law2/3) of holders of a majority of the then outstanding shares of Series B B-2 Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B-2 Preferred Stock; (ii) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B-2 Preferred Stock as to redemption or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of the Corporation; (iii) increase the authorized number of shares of Series B-2 Preferred Stock; (iv) re-issue any shares of Series B-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or Senior Securities; (vi) redeem, or declare, pay or make any provision for any dividend or distribution with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to the Series B-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B-2 Preferred Stock except pursuant to the terms of the Exchange Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B B-2 Preferred StockStock pursuant to the terms hereof, in a manner that adversely affects then the Corporation will deliver notice of such approved change to the holders of shares the Series B-2 Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have the right for a period of thirty (30) days following such delivery to convert their Preferred Shares pursuant to the terms hereof as they existed prior to such alteration or change, or to continue to hold such Preferred Shares. No such change shall be effective to the extent that, by its terms, it applies to less than all of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series Holders of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are Shares then outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so So long as shares of Series B A Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawthe CO-CORP LAW) of the holders of at least a majority of the then outstanding shares of Series B A Preferred Stock: : alter or change the rights, preferences or privileges of the Series A Preferred Stock or any capital stock of the Corporation so as to affect adversely the Series A Preferred Stock; create any new class or series of capital stock having a preference over the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (i) as previously defined in Article II hereof, "Senior Securities"); create any new class or series of capital stock ranking pari passu with the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article II hereof, "Pari Passu Securities"); increase the authorized number of shares of Series A Preferred Stock; issue any Senior Securities or Pari Passu Securities; increase the par value of the Common Stock, or do any act or thing not authorized or contemplated by this Certificate of Designation which would result in taxation of the holders of shares of the Series A Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code as hereafter from time to time amended). In the event holders of at least a majority of the then outstanding shares of Series A Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B A Preferred Stock, in a manner that adversely affects pursuant to subsection (a) above, so as to affect the Series A Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of shares the Series A Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have the right of Dissenting Stockholders under the NVGCL to petition for the payment of the Series B Preferred Stock; or (ii) increase the authorized number fair value of their shares as it exists prior to such alteration or change or continue to hold their shares of Series B Preferred Stock or Series C A Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. 7.1 Subject to the rights of series of Preferred Stock preferred stock which may from time to time come into existence, so long as any shares of Series B B1 Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval (at a meeting duly called or by vote or written consent, as provided by law) of the holders of a majority Majority In Interest: (a) Increase or decrease (other than by redemption or conversion) the total number of the then outstanding authorized shares of Series B B1 Preferred Stock:Stock (except to the extent required to issue PIK Shares if required by the terms set forth herein, which for the sake of clarity, and without otherwise limiting this provision, shall not require approval of the Holders); (b) Re-issue any shares of Series B1 Preferred Stock converted or redeemed pursuant to the terms of this Designation (except to the extent required to issue PIK Shares if required by the terms set forth herein, which for the sake of clarity, and without otherwise limiting this provision, shall not require approval of the Holders); (c) Create, or authorize the creation of, or issue or obligate itself to issue shares of, any class or series of capital stock unless the same ranks junior to (and not pari passu with) the Series B1 Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, or increase the authorized number of shares of any additional class or series of capital stock unless the same ranks junior to (and not pari passu with) the Series B1 Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, in each such case, other than issuances of (or in connection with issuances of) shares of Series B1 Preferred Stock pursuant to the Purchase Agreement and PIK Shares; (d) Issue, incur or obligate itself to issue or incur any indebtedness that is convertible into, or exchangeable for, any equity security of the Corporation or instruments derivative of any equity security of the Corporation; (e) Grant any rights to require a mandatory repurchase, retirement or redemption by the Corporation of any of the Corporation’s equity securities or instruments derivative of its equity securities on or prior to the Required Redemption Date, or issue, incur or obligate the Corporation to issue or incur, any indebtedness with a maturity date on or prior to the Required Redemption Date that is convertible into, or exchangeable for, equity securities or instruments derivative of the Corporation’s equity securities; (f) Effect an exchange, reclassification, or cancellation of all or a part of the Series B1 Preferred Stock (except pursuant to Section 5.3 hereof, which shall not require any approval or consent of the Holders); (g) Effect an exchange, or create a right of exchange, of all or part of the shares of another class of shares into shares of Series B1 Preferred Stock (except pursuant to Section 5.3 hereof, which shall not require any approval or consent of the Holders); Vertex Energy: Series B1 Certificate of Designation 25 (h) Issue any shares of Series B1 Preferred Stock other than pursuant to the Purchase Agreement or as PIK Shares; (i) alter Alter or change the rights, preferences or privileges of the shares of Series B B1 Preferred Stock, in a manner that Stock so as to affect adversely affects the holders of shares of the Series B Preferred Stocksuch series; or (iij) increase Amend or waive any provision of the authorized number Corporation’s Articles of shares of Incorporation or Bylaws relative to the Series B B1 Preferred Stock or Series C Preferred Stock. b. Subject so as to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of affect adversely the shares of Series M B1 Preferred Stock, Stock in a manner that adversely affect the any material respect as compared to holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of other series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stockshares.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so As long as shares of Series B D Preferred Stock are outstandingOutstanding, this corporation the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawthe GCL) of the holders of at least a majority of the then outstanding shares of Series B D Preferred Stock: (ia) alter or change the rights, preferences or privileges of the Series D Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series D Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation ("Senior Securities") or alter or change the rights, preferences or privileges of any Senior Securities so as to affect adversely the Series D Preferred Stock; (c) increase the authorized number of shares of Series D Preferred Stock; or (d) do any act or thing not authorized or contemplated by this Amendment which would result in taxation of the holders of shares of the Series D Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code as hereafter from time to time amended). In the event holders of at least a majority of the then outstanding shares of Series D Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B D Preferred Stock, in a manner that adversely affects pursuant to subsection (a) above, so as to affect the Series D Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of shares of the Series B D Preferred Stock; or Stock that did not agree to such alteration or change (iithe "Dissenting Holders") increase and Dissenting Holders shall have the authorized number right for a period of thirty (30) days to convert pursuant to the terms of this Amendment as they exist prior to such alteration or change or continue to hold their shares of Series B Preferred Stock or Series C D Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so (a) So long as shares of Series B AA Preferred Stock are outstanding, this corporation the Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) the General Corporation Law of holders Delaware of the Holders of at least a majority of the then outstanding shares of Series B AA Preferred Stock alter or change the rights, preferences or privileges of the Series AA Preferred Stock or any Senior Securities so as to affect adversely the Series AA Preferred Stock: (i) . In the event Holders of at least a majority of the then outstanding shares of Series AA Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B AA Preferred Stock, in a manner that pursuant to subsection (a) above, so as to affect adversely affects the holders Series AA Preferred Stock, then the Corporation will mail notice of shares such approved alteration or change to the Holders of the Series B AA Preferred Stock; or Stock that did not agree to such alteration or change (iithe "Dissenting Holders") increase and the authorized number Dissenting Holders shall have the right for a period of thirty (30) days immediately following the date the notice was mailed to convert pursuant to the terms of this resolution of Designation as they exist prior to such alteration or change or continue to hold their shares of Series B AA Preferred Stock or Series C Preferred Stock. b. Subject subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter approved alteration or change of the rights, preferences or privileges of the Series AA Preferred Stock. (b) If at any time or times the Corporation shall issue shares of Series M AA Preferred Stock not designated herein or Series A Redeemable preferred stock not issued and outstanding as of the date hereof, each Holder (i.e., holder of Series AA Preferred Stock, in a manner that adversely affect the holders of ) shall be entitled to receive additional shares of Series AA Preferred Stock in an amount determined by the Series M Preferred Stock; or (ii) increase following formula: multiply the authorized number of shares of Series M AA Preferred Stock. c. Subject Stock of the Holder immediately prior to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining new issuance by the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C A and/or Series AA Preferred Stock to be issued and divide the result by the aggregate number of shares of Series A and Series AA Preferred Stock issued and outstanding immediately prior to the new issuance. The rights provided for in this Section 7(b) shall not apply to any shares for which the Series AA Preferred Stock has been converted or Series B Preferred Stockany shares which have been redeemed.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so So long as shares of Series B A Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawthe DGCL) of the holders of at least a majority of the then outstanding shares of Series B A Preferred Stock: (ia) alter or change the rights, preferences or privileges of the Series A Preferred Stock or any Senior Securities so as to affect adversely the Series A Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article II hereof, "Senior Securities"); (c) create any new class or series of capital stock ranking pari passu with the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Article II hereof, APari Passu Securities@); or (d) increase the authorized number of shares of Series A Preferred Stock. In the event holders of at least a majority of the then outstanding shares of Series A Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B A Preferred Stock, in a manner that adversely affects pursuant to subsection (a) above, so as to affect the Series A Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of shares of the Series B A Preferred Stock; or Stock that did not agree to such alteration or change (iithe "Dissenting Holders") increase and Dissenting Holders shall have the authorized number right for a period of thirty (30) days to convert pursuant to the terms of this Certificate of Designation as they exist prior to such alteration or change or continue to hold their shares of Series B Preferred Stock or Series C A Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so So long as shares of Series B Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval of the Holders of at least two-thirds (by vote or written consent, as provided by law2/3) of holders of a majority of the then outstanding shares of Series B Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series B Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series B Preferred Stock; (ii) create any new class or series of capital stock having a preference over or ranking pari passu with the Series B Preferred Stock as to redemption or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of the Corporation; (iii) increase the authorized number of shares of Series B Preferred Stock; (iv) re-issue any shares of Series B Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or Senior Securities; (vi) redeem, or declare, pay or make any provision for any dividend or distribution with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to the Series B Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series B Preferred Stock except pursuant to the terms of the Securities Purchase Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series B Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B Preferred StockStock pursuant to the terms hereof, in a manner that adversely affects then the Corporation will deliver notice of such approved change to the holders of shares of the Series B Preferred Stock; or Stock that did not agree to such alteration or change (iithe "Dissenting Holders") increase and the authorized number Dissenting Holders shall have the right for a period of shares of Series B thirty (30) days following such delivery to convert their Preferred Stock or Series C Preferred Stock. b. Subject Shares pursuant to the rights terms hereof as they existed prior to such alteration or change, or to continue to hold such Preferred Shares. No such change shall be effective to the extent that, by its terms, it applies to less than all of series the Holders of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are Shares then outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so So long as shares of Series B I Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval (by vote or written consent, as provided by lawin the DGCL) of holders the Holders of at least a majority of the then outstanding shares of Series B I Preferred Stock: (ia) alter or change the rights, preferences or privileges of the Series I Preferred Stock; (b) create any new class or series of capital stock having a preference over the Series I Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation ("Senior Securities") or alter or change the rights, preferences or privileges of any Senior Securities so as to affect adversely the Series I Preferred Stock; (c) increase the authorized number of shares of Series I Preferred Stock; or (d) do any act or thing not authorized or contemplated by this Certificate of Designation which would result in taxation of the Holders of shares of the Series I Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code of 1986, as hereafter from time to time amended). In the event Holders of least a majority of the then outstanding shares of Series I Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, pursuant to subsection (a) above, so as to affect the Series I Preferred Stock, then the Corporation will deliver notice of such approved change to the Holders of the Series Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have the right for a period of 30 days to convert pursuant to the terms of this Certificate of Designation as in effect prior to such alteration or change or to continue to hold their shares of Series I Preferred Stock. Notwithstanding anything to the contrary herein, if at any time the Corporation shall "spin-off" certain of its assets or businesses by transferring, directly or indirectly, such assets or businesses to a manner Subsidiary of the Corporation ("Spinco") and making a dividend (the "Spin-off Dividend") to the Corporation's stockholders of the shares of capital stock of Spinco, then prior to making the Spin-off Dividend, the Corporation shall cause Spinco to issue to each Holder that adversely affects the holders number of shares of preferred stock of Spinco with substantially identical rights, preferences, privileges, powers, restrictions and other terms as the Series B I Preferred Stock; or (ii) increase Stock equal to the authorized number of shares of Series B I Preferred Stock or Series C Preferred Stock. b. Subject Shares held by such Holder immediately prior to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred StockSpin-off Dividend. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so So long as shares of Series B C-2 Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval of the Holders of at least two-thirds (by vote or written consent, as provided by law2/3) of holders of a majority of the then outstanding shares of Series B C-2 Preferred Stock: (i) alter, change, modify or amend (x) the terms of the Series C-2 Preferred Stock in any way or (y) the terms of any other capital stock of the Corporation so as to affect adversely the Series C-2 Preferred Stock; (ii) create any new class or series of capital stock having a preference over or ranking pari passu with the Series C-2 Preferred Stock as to redemption or distribution of assets upon a Liquidation Event or any other liquidation, dissolution or winding up of the Corporation; (iii) increase the authorized number of shares of Series C-2 Preferred Stock; (iv) re-issue any shares of Series C-2 Preferred Stock which have been converted or redeemed in accordance with the terms hereof; (v) issue any Pari Passu Securities or Senior Securities; (vi) redeem, or declare, pay or make any provision for any dividend or distribution with respect to, the Common Stock or any other capital stock of the Corporation ranking junior to the Series C-2 Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding up of the Corporation; or (vii) issue any Series C-2 Preferred Stock except pursuant to the terms of the Securities Purchase Agreement. In the event that the Holders of at least two-thirds of the outstanding shares of Series C-2 Preferred Stock agrees to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series B C-2 Preferred StockStock pursuant to the terms hereof, in a manner that adversely affects then the Corporation will deliver notice of such approved change to the holders of shares the Series C-2 Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and ------------------ the Dissenting Holders shall have the right for a period of thirty (30) days following such delivery to convert their Preferred Shares pursuant to the terms hereof as they existed prior to such alteration or change, or to continue to hold such Preferred Shares. No such change shall be effective to the extent that, by its terms, it applies to less than all of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series Holders of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are Shares then outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to Except as otherwise provided herein or as required by applicable law, the rights holders of series of Series C Preferred Stock shall be entitled to vote on all matters on which may from time the holders of Common Stock shall be entitled to time come into existencevote, so long in the same manner and with the same effect as shares the holders of Common Stock, voting together with the holders of Common Stock as a single class. For purposes of this Section 6, the holders of Series B C Preferred Stock shall be given notice of any meeting of stockholders as to which the holders of Common Stock are outstandinggiven notice in accordance with the by-laws of the Corporation. As to any matter on which the holders of Series C Preferred Stock shall be entitled to vote in accordance with the first sentence of this Section 6(b), this corporation each holder of Series C Preferred Stock shall not without first obtaining have a number of votes per share of Series C Preferred Stock held of record by such holder on the approval (by record date for the meeting of stockholders, if such matter is subject to a vote at a meeting of stockholders, or on the effective date of any written consent, as provided by law) of holders of if such matter is subject to a majority written consent of the then outstanding shares stockholders without a meeting of Series B Preferred Stock: (i) alter or change stockholders, equal to the rights, preferences or privileges of the shares of Series B Preferred Stock, in a manner that adversely affects the holders of shares of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Common Stock or into which such share of Series C Preferred Stock. b. Subject to Stock is then convertible on such record date or effective date, as the rights case may be, in accordance with Section 7 hereof; provided, however, that any holder of series of Series C Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining be entitled to cast votes for the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights Common Stock issuable upon conversion of series of Preferred Stock which may from time to time come into existence, so long as such shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining held by such holder that exceeds the approval quotient of (x) the aggregate purchase price paid by vote or written consent, as provided by law) such holder of holders of a majority of the then outstanding Series C Preferred Stock for its shares of Series C Preferred Stock: Stock divided by (y) $0.65 (i.e., the closing bid price of the Common Stock on the Trading Day immediately prior to the Original Issue Date). Notwithstanding the foregoing proviso, nothing herein shall restrict (i) alter any holder of Series C Preferred Stock from being entitled to vote at any meeting of stockholders of the Corporation or change in any action by written consent of stockholders, any shares of Series C Preferred Stock on any matter on which the rightsholders of Series C Preferred Stock are entitled to vote as a separate class or (ii) the right of any holder of Series C Preferred Stock to vote any outstanding shares of Common Stock, preferences whether acquired upon conversion of the Series C Preferred Stock or privileges otherwise. Notwithstanding anything in this Section 6(b) to the contrary, a holder of Series C Preferred Stock shall not be entitled to cast a vote for the number of shares of Common Stock into which the shares of Series C Preferred Stock, in a manner that adversely affects Stock held by such holder is then convertible until (i) the holders issuance of such shares of Common Stock pursuant to Section 7 hereof has been approved by the Series C Preferred Stock; or stockholders of the Corporation in accordance with NASDAQ Listing Rule 5635 and (ii) increase the authorized number Corporation has complied with Rule 14c-2 of shares the Securities Exchange Act of Series C Preferred Stock or Series B Preferred Stock1934, as amended, in respect of such stockholder approval (such date, the “Trigger Date”).

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so So long as shares of the Series B Preferred Stock are remains outstanding, this corporation the Company shall not not, without first obtaining the approval (by vote or written consent, as provided by law) of consent from holders of at least a majority of the then outstanding shares of Series B Preferred Stock: , including XL (the “Series B Majority”), take any of the actions described requiring the approval of the Series A Preferred Director pursuant to the Current Charter, as well as (i) adversely and disproportionately alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, (ii) amend or waive any provision of the Company’s Certificate of Incorporation or By-laws in a manner that would adversely affects the holders of shares of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) and disproportionately alter or change the rights, preferences or privileges of the shares of Series M B Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or or (iiiii) increase or decrease the authorized number of shares of Series M B Preferred Stock. c. Subject . It is understood that the creation of a senior to or pari passu series or class of stock shall not, by itself, trigger clauses (i) or (ii); nor shall the rights proportional differences in the amounts of respective issue prices, liquidation preferences, and conversion prices arising out of differences in the original issue price vis-à-vis other series or class of stock. The Company’s charter will provide that, except as provided by law and indicated above, each series of Preferred Stock which may from time to time come into existence, so long as shares will vote together with all other series of Series C Preferred Stock are outstandingon all matters, this corporation and not as a separate series or class. Drag-Along: In connection with any Deemed Liquidation Event, all of the Company’s stockholders shall not without first obtaining vote for any such Deemed Liquidation Event approved by (i) the Board; (ii) the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares Common Stock; and (iii) the holders of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges a majority of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C which shall include XL for so long as it holds Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock, voting together as a separate class. The Company’s equity incentive plan will contain provisions binding all optionees to this provision.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, For so long as at least 9,500 shares of Series B G Preferred Stock, Series I Preferred Stock, Series J Preferred Stock, Series K Preferred Stock, Series L Preferred Stock are and Series M Preferred Stock collectively remain outstanding, this corporation shall not without first obtaining the approval (by affirmative vote or written consent, as provided by lawconsent of the holders of two-thirds (2/3) of holders of a majority of the then issued and outstanding shares of Series B G Preferred Stock:, Series I Preferred Stock, Series J Preferred Stock, Series K Preferred Stock, Series L Preferred Stock and Series M Preferred Stock, voting together as a single class and on an as converted to Common Stock basis, shall be required to take any of the following actions (including by way of merger, consolidation or otherwise): (i) alter designate, authorize, create, issue, sell, redeem or change repurchase any class or series of equity securities or equity-backed securities of the Company or any subsidiary thereof, including without limitation, capital stock (including any shares of treasury stock) or rights, preferences options, warrants or privileges other securities convertible into or exercisable or exchangeable for capital stock or any debt security which by its terms is convertible into or exchangeable for any equity security or has any other equity feature or any security that is a combination of debt and equity (collectively, "Equity Securities"), other than pursuant to (i) employee stock option and similar incentive plans approved by the Board of Directors, (ii) the issuance of Common Stock upon the conversion of the 7.5% Convertible Subordinated Notes due 2007 of Allied Riser Communications Corporation (the "Notes") in accordance with the terms thereof or the issuance of additional convertible debt or equity as a paid-in-kind interest payment on the Notes in accordance with the terms thereof approved by the Board of Directors or (iii) a conversion or exchange right set forth in Company's certificate of incorporation; (ii) except as otherwise expressly provided as of the date hereof in the Company's certificate of incorporation or in a certificate of designations thereto, declare or pay any dividends or make any distributions of any kind with respect to any outstanding Equity Securities of the Company or any subsidiary thereof; (iii) approve the merger, consolidation, dissolution or liquidation of the Company or any subsidiary thereof, or any transaction having the same effect; (iv) increase or decrease the aggregate number of authorized shares of Series B Common Stock or Preferred StockStock of the Company; (v) sell all or substantially all of the assets of the Company and its subsidiaries taken as a whole, whether directly through a sale of the Company's interests in its subsidiaries or other assets, or indirectly through a sale of the assets of its subsidiaries, in one transaction or any series of transactions, or approve any transaction or series of transactions having the same effect; (vi) cause, directly or indirectly, a material change in the nature of the business or strategic direction of the Company and its subsidiaries, taken as a whole; (vii) approve the filing for bankruptcy of or any decision not to take action to prevent a filing for bankruptcy or not to oppose an involuntary filing for bankruptcy or other winding up of the Company or any subsidiary thereof; (viii) approve the establishment and maintenance of an Executive Committee of the Board of Directors or increase or decrease the number of directors composing the Board of Directors; or (ix) amend, repeal or modify any provision of the Company's certificate of incorporation in a manner that adversely affects the holders of shares rights, powers or preferences of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from At any time to time come into existence, so long as when any shares of Series B Preferred Stock issued pursuant to this Agreement, including upon exercise of the Warrants, are outstanding, this corporation the Company shall not without first obtaining the approval (by vote or written consentnot, as provided by law) of holders of a majority of the then outstanding shares of Series B Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, in a manner that adversely affects the holders of shares of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M B Preferred Stock; orStock then held by Significant Holders, if any (it shall be understood, however, that the following Protective Provisions are identical to those set forth in Subsection 3.2 of the rights and preferences of the Series B Preferred Stock set forth in Article Fourth of the Company’s Amended and Restated Certificate of Incorporation, and approval or waiver of any of the following provisions in accordance with the Company’s Amended and Restated Certificate of Incorporation, will be deemed approval or waiver of the same provision hereunder): a) authorize or incur any Indebtedness in excess of $2,000,000; b) issue or sell any convertible debt, preferred stock (iiconvertible or otherwise) or any other equity or equity-linked security at a price that values the Company’s Common Stock at a price less than the Per Share Purchase Price (as adjusted for all subsequent stock splits, stock dividends, consolidations, recapitalizations and reorganizations) other than any equity or equity linked security that is issued pursuant to any transactions approved under Subsection 4.15(k) hereof; c) increase or decrease the authorized number of shares of Series M Preferred Stock.capital stock of the Company; c. Subject to the rights of d) create or issue any new class or series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the having rights, preferences or privileges senior to the Common Stock; e) issue any shares of Series A Preferred Stock other than pursuant to the terms of that certain Amended and Restated Stockholders’ Rights Agreement, dated as of July 25, 2005, between the Company and American Stock Transfer & Trust Company; f) amend, alter, or repeal any provision of the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company (including any filing of a certificate of designation), that alters or changes the voting powers, preferences, or other special rights or privileges, or restrictions of the Series B Preferred Stock; g) pay or declare any dividends or make other distributions upon its shares of capital stock; h) purchase, redeem or otherwise acquire any of the Company’s equity securities (including warrants, options and other rights to acquire equity securities) other than the repurchase of equity securities pursuant to existing agreements disclosed to the Purchasers in writing prior to the date hereof specifically referencing this Subsection 4.15(h); i) issue any equity or equity-linked securities to any employee other than pursuant to the Company’s Approved Stock Plans, or increase the shares of Series C Preferred StockCommon Stock or other securities reserved for issuance as incentive awards to the Company’s management and other employees, directors and consultants pursuant to the Approved Stock Plans or any other any equity incentive plan or similar arrangement, other than the increase contemplated by Section 4.14 hereof; j) liquidate, dissolve or wind-up; k) merge or consolidate with another corporation in a manner that adversely affects which the holders of shares the Company’s voting equity securities immediately prior to the transaction would own 50% or less of the Series C Preferred Stock; orvoting securities of the surviving corporation or engage in any other Deemed Liquidation Event (as defined in the Amended and Restated Certificate of Incorporation); (iil) increase sell, license or dispose of any material assets of the Company, including intellectual property or other rights to the Company’s development stage, pre-clinical and/or diagnostic assets, including, without limitation, pursuant to any license, development, commercialization, distribution, marketing, co-marketing, collaboration, partnering or other agreement, other than licenses of immaterial technology in the ordinary course of business on commercially reasonable terms and consistent with past practices; m) change the authorized number of shares directors of Series C Preferred the Company; n) amend or waive any material provision of the Amended and Restated Certificate of Incorporation or the Company’s By-Laws; o) materially change the nature of the Company’s business from that engaged in on the date hereof; p) intentionally take any action which is reasonably likely to result in (i) the Common Stock of the Company no longer being approved for quotation on the American Stock Exchange or Series B Preferred Stock.the Nasdaq Stock Market or (ii) the Common Stock of the Company ceasing to be registered pursuant to Section 12 of the Exchange Act; or q) agree, consent or acquiesce to any amendment, supplement or other modification to, or termination of, any of its material agreements, including, without limitation any Material License Agreement or any other agreement filed with the Commission pursuant to Item 601 of Regulation S-K.

Protective Provisions. a. 9.1 Subject to the rights of series of Preferred Stock preferred stock which may from time to time come into existence, so long as any shares of Series B Preferred Stock are outstanding, this corporation the Corporation shall not not, without first obtaining the approval (by vote written consent or written consentat a meeting duly called, each as provided by law) of the holders of a majority Majority In Interest of Series B Preferred, voting together as a single class: (a) Increase or decrease (other than by redemption or conversion) the then outstanding total number of authorized shares of Series B Preferred Stock:(except to the extent required to issue PIK Shares if required by the terms set forth herein, which for the sake of clarity, and without otherwise limiting this provision, shall not require approval of the Holders); (ib) alter Re-issue any shares of Series B Preferred converted pursuant to the terms of this Designation; (c) Create, or authorize the creation of, or issue or obligate itself to issue shares of, any class or series of capital stock unless the same ranks junior to (and not pari passu with) the Series B Preferred with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, or increase the authorized number of shares of any additional class or series of capital stock unless the same ranks junior to (and not pari passu with) the Series B Preferred with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, in each such case, other than issuances of (or in connection with issuances of) shares of Series B Preferred pursuant to the Purchase and Sale Agreement, PIK Shares and the Series C Preferred Stock; (d) Effect an exchange, reclassification, or cancellation of all or a part of the Series B Preferred (except pursuant to the terms hereof); (e) Effect an exchange, or create a right of exchange, of all or part of the shares of another class of shares into shares of Series B Preferred; (f) Alter or change the rights, preferences or privileges of the shares of Series B Preferred Stockso as to affect adversely the shares of such series; (g) Authorize or issue, in or obligate itself to issue, any other equity security, including any other security convertible into or exercisable for any equity security having a manner that preference over (or on parity with) the Series B Preferred with respect to liquidation; or (h) Amend or waive any provision of the Corporation’s Articles of Incorporation or Bylaws, each as amended, relative to the Series B Preferred so as to affect adversely affects the shares of Series B Preferred. For clarification, the creation or issuance of shares of other series of preferred stock, provided the rights and preferences of such series of preferred stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends are not senior to the Series B Preferred Liquidation Preference, shall not require the authorization or approval of the holders of shares of the Series B Preferred Stock; orPreferred. 9.2 The Corporation will not through any reorganization, transfer of assets, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Designation and in the taking of all such action as may be necessary or appropriate in order to protect (iia) increase the authorized number Holder Conversion Rights of shares the Holders of Series B Preferred Stock or Series C Preferred Stock. b. Subject to Preferred; and (b) the other rights of series the Holders as set forth herein, against impairment. Notwithstanding the foregoing, nothing shall prohibit the Corporation from amending its Articles of Preferred Stock which may from time to time come into existence, so long as shares Incorporation with the requisite consent of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining its stockholders and the approval (by vote or written consent, as provided by law) Board of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred StockDirectors. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.

Protective Provisions. a. Subject Prior to the rights occurrence of a Consolidation Triggering Event (as that term is defined in Part B of Article IV of the SunPower’s Restated Certificate of Incorporation), SunPower shall not take the following actions without the written consent or affirmative vote of members representing at least 75% of the then-authorized number of the members of SunPower’s Board of Directors: (a) approve SunPower’s AOP prior to the beginning of the applicable fiscal year or, after approval of an AOP in accordance with this Article III, effect any changes thereto (including changes involving one or more related transactions) which result or would reasonably be expected to result in an issuance in any individual case or in the aggregate of more than 1% of the fully diluted shares of capital stock of SunPower or a negative impact to SunPower’s cash flow of $2,000,000 or more; (b) undertake any transaction or series of Preferred Stock related transactions which may from time results or would reasonably be expected to time come into existence, so long as result individually or in the aggregate in SunPower issuing shares of Series B Preferred Stock are outstandingthe capital stock of SunPower or securities convertible into, this corporation shall not without first obtaining or exercisable for, shares of the approval capital stock of SunPower in an amount equal to or greater than four percent (by vote or written consent, as provided by law4%) of holders of a majority of the then outstanding shares of Series B Preferred Stock:capital stock of SunPower unless provided for in SunPower’s then-current AOP approved in accordance with this Article III; (ic) alter undertake any transaction or change the rightsseries of related transactions whereby SunPower pays, preferences incurs or privileges accrues or would reasonably be expected to pay, incur or accrue a liability equal to or in excess of the shares fair market value (based upon the closing price of Series B Preferred Stockthe Class A Common Stock reported for the business day immediately prior to the consummation of such transaction or, if the Class A Common Stock is not traded in a manner that adversely affects public market, the holders Board of shares Directors shall determine fair market value of the Series B Preferred Stock; or (ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock. b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by lawSunPower in its good faith judgment) of the holders of a majority of the outstanding shares of Series M Preferred Stock: four percent (i4%) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges capital stock of the shares of Series C Preferred Stock, Company unless provided for in a manner that adversely affects the holders of shares of the Series C Preferred StockSunPower’s then-current AOP approved in accordance with this Article III; or (iid) increase enter into an exclusive license (other than an exclusive license the authorized number exclusivity of shares which is limited to exclusive distribution rights and which is entered into in the ordinary course of Series C Preferred Stock business consistent with past practice) or Series B Preferred Stocksell, convey or otherwise transfer any intellectual property of SunPower (unless such transaction was included in SunPower’s then-current AOP approved in accordance with this Article III).

Protective Provisions. a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so (a) So long as any shares of Series B Preferred Stock are outstanding, this corporation shall not not, without first obtaining the approval (by vote or written consent), as provided by law) of the holders of a majority at least 66 2/3% of the then outstanding shares of Series B Preferred Stock: (i) amend the corporation's Articles of Incorporation to, or otherwise, alter or change the rights, preferences or privileges of the shares of Series B Preferred StockStock so as to affect adversely such shares; (ii) authorize or issue, in or obligate itself to issue, any other equity security, including any other security convertible into or exercisable for any equity security having a manner that adversely affects the holders of shares of preference over, or being on a parity with, the Series B Preferred StockStock with respect to redemption, dividends or liquidation payments; or (iiiii) increase redeem or purchase or otherwise acquire shares of any class of stock of this corporation, directly or indirectly, other than (A) redemptions of Series B Preferred Stock pursuant to the authorized number provisions of Section 1.6 or (B) repurchases of options or capital stock issued upon exercise of options from employees, officers, directors or consultants; (in addition, if at any time there shall be either (A) accrued and unpaid dividends on any shares of Series B Preferred Stock then outstanding or (B) any redemption required by Section 1.6 to be made of shares of Series B Preferred Stock or then outstanding which has not been made, no dividends whatsoever of any kind may be paid upon, nor may any distribution of any kind be made upon any share of any class of stock of this corporation other than the Series C B Preferred Stock). b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, (b) If this corporation shall not without first obtaining the approval in any manner sub-divide (by vote stock- split, stock dividend or written consent, as provided otherwise) or combine (by lawreverse stock-split or otherwise) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M B Preferred Stock, in a manner that adversely affect the holders of shares of liquidation payment per share, the Series M Preferred Stock; or (ii) increase redemption price per share and the authorized number of shares of required to be redeemed on any mandatory Series M Preferred Stock. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation B Redemption Date shall not without first obtaining the approval (by vote be proportionately reduced or written consentincreased, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stockcase may be.

Protective Provisions. a. Subject (1) If and whenever at any time after the date hereof, the Corporation shall (i) subdivide or redivide the outstanding Class A Non-Voting Common Shares into a greater number of Class A Non-Voting Common Shares or (ii) consolidate, combine or reduce the outstanding Class A Non-Voting Common Shares into a lesser number of Class A Non-Voting Common Shares, then, in each such event, the Purchase Price will, on the effective date of or the record date for such event, be adjusted by multiplying the Purchase Price in effect immediately prior to such date by a fraction, of which the rights numerator shall be total number of series Class A Non-Voting Common Shares outstanding on such date before giving effect to such event, and of Preferred Stock which may from the denominator shall be the total number of Class A Non-Voting Common Shares on such date after giving effect to such event. Such adjustment will be made successively whenever any such event shall occur. (2) For greater certainty, but without limitation, if at any time to time come into existence, so long as shares of Series B Preferred Stock are outstanding, this corporation after the date hereof there shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority occur any of the then outstanding shares of Series B Preferred Stockfollowing: (i1) alter any reclassification or change the rights, preferences or privileges redesignation of the Class A Non-Voting Common Shares or any conversion, exchange or other change of Class A Non-Voting Common Shares into other shares of Series B Preferred Stock, in a manner that adversely affects the holders of shares of the Series B Preferred Stockor securities or any other capital reorganization; or (ii2) increase any consolidation, amalgamation, merger, plan of arrangement or other form of reorganization involving the authorized number Corporation (other than a consolidation, amalgamation, plan of arrangement or other form of reorganization which does not result in any reclassification or redesignation of Class A Non-Voting Common Shares or conversion, exchange or other change of Class A Non-Voting Common Shares into other shares or securities), any of Series B Preferred Stock such events being called a "Capital Reorganization", the Aggregate Purchase Price that FUR shall be required to pay to Investco and the Onex Associates who thereafter sell any Shares hereunder to FUR shall be the Aggregate Purchase Price for the Shares (or Series C Preferred Stockthe predecessor securities of the Shares) which would otherwise have been paid by FUR to Investco or the relevant Onex Associate if such Capital Reorganization had not occurred. b. Subject (3) Upon the occurrence of any such Capital Reorganization, the parties hereto shall enter into an agreement supplemental hereto which shall provide for the amendment of this Agreement on such terms and conditions as may be necessary to protect the rights of series of Preferred Stock which may from time to time come into existenceFUR, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining Investco and the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or (ii) increase the authorized number of shares of Series M Preferred StockOnex Associates hereunder. c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or (ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.