Common use of Special Voting Rights Clause in Contracts

Special Voting Rights. (i) So long as any Shares of Series B Preferred Stock remain outstanding, in addition to any other vote or consent of stockholders required by the Charter, the affirmative vote or consent of the holders of two-thirds of the outstanding Shares of Series B Preferred Stock and Parity Preferred Stock upon which like voting rights have been conferred (voting together as a single class) shall be required to authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of Senior Stock or reclassify any authorized shares of capital stock of the Corporation into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase Senior Stock. (ii) So long as any shares of Series B Preferred Stock remain outstanding, the holders of shares of Series B Preferred Stock also shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock issued and outstanding at the time. With respect to any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that equally affects the terms of the Series B Preferred Stock and any Parity Preferred Stock upon which like voting rights have been conferred, the holders of shares of Series B Preferred Stock and such Parity Preferred Stock (voting together as a single class) also shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B Preferred Stock and such Parity Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock and such Parity Preferred Stock issued and outstanding at the time.

Special Voting Rights. (i) So long as any Shares of Series B A Preferred Stock remain outstanding, in addition to any other vote or consent of stockholders required by the Charter, the affirmative vote or consent of the holders of two-thirds of the outstanding Shares of Series B A Preferred Stock and Parity Preferred Stock upon which like voting rights have been conferred (voting together as a single class) shall be required to authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of Senior Stock or reclassify any authorized shares of capital stock of the Corporation into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase Senior Stock. (ii) So long as any shares of Series B A Preferred Stock remain outstanding, the holders of shares of Series B A Preferred Stock also shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B A Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B A Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B A Preferred Stock issued and outstanding at the time. With respect to any amendment, alteration or repeal of the Charter, including the terms of the Series B A Preferred Stock, that equally affects the terms of the Series B A Preferred Stock and any Parity Preferred Stock upon which like voting rights have been conferred, the holders of shares of Series B A Preferred Stock and such Parity Preferred Stock (voting together as a single class) also shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B A Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B A Preferred Stock and such Parity Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B A Preferred Stock and such Parity Preferred Stock issued and outstanding at the time.

Special Voting Rights. (i) So long as any Shares of Series B Preferred Stock remain outstanding, in In addition to any other vote or consent of stockholders required by the Charterlaw, the affirmative vote Certificate of Incorporation or consent this Certificate of the holders of two-thirds of the outstanding Shares of Series B Preferred Stock and Parity Preferred Stock upon which like voting rights have been conferred (voting together as a single class) shall be required to authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of Senior Stock or reclassify any authorized shares of capital stock of the Corporation into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase Senior Stock. (ii) So long as any shares of Series B Preferred Stock remain outstandingDesignation, the holders of shares of Series B D Preferred Stock also shall have the exclusive right be entitled to vote as a separate class on any all matters specifically affecting the Series D Preferred Stock. Without limiting the foregoing, the Corporation shall not, either directly or indirectly, by amendment, alteration merger, consolidation or repeal otherwise, do any of the Charterfollowing without first obtaining the approval (by vote or written consent, including the terms as provided by law) of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, holders of at least a majority of the outstanding shares of Series B D Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendmentact or transaction entered into without such approval shall be null and void ab initio, alteration and of no force or repeal. Any such amendment, alteration effect: (i) amend or repeal shall require any provision of, or add any provision to, the affirmative vote Certificate of Incorporation or consent this Certificate of Designation if such action would adversely alter or change the holders of two-thirds of the shares of Series B Preferred Stock issued and outstanding at the time. With respect to any amendmentrelative rights, alteration preferences, privileges or repeal of the Charter, including the terms powers of the Series B D Preferred Stock; (ii) authorize or issue, or obligate itself to issue, any other equity security, including any security convertible into or exercisable for any equity security, having a preference over, or being on a parity with, the Series D Preferred Stock with respect to voting (other than the pari passu voting rights of Common Stock), dividends, redemption, conversion or upon liquidation; (iii) redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any share of Common Stock or any security (other than Series D Preferred Stock) convertible into or exchangeable or exercisable for shares of Common Stock; provided, however, that equally affects this restriction shall not apply to the terms of the Series B Preferred Stock and any Parity Preferred Stock upon which like voting rights have been conferred, the holders repurchase of shares of Common Stock at fair market value from employees, officers, directors, consultants or other persons performing services for this Corporation or any subsidiary pursuant to agreements under which this Corporation has the option to repurchase such shares under existing agreements and/or upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal; or (iv) declare, pay or set aside any dividends on any class of the Corporation’s capital stock (other than the payment of dividends on the Series B D Preferred Stock and such Parity Preferred Stock (voting together as a single class) also shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B Preferred Stock and such Parity Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock and such Parity Preferred Stock issued and outstanding at the timeaccordance with Section 2).

Special Voting Rights. (i) So For so long as any the Investor Shares are equal to or greater than 30% of Series B Preferred Stock remain outstanding, in addition to any other vote or consent the Investor Shares as of stockholders required by immediately following the CharterClosing, the affirmative vote or consent Company shall not, without first obtaining the approval of holders of a majority in interest of the holders of two-thirds of Investor Shares: (a) enter into a transaction with an affiliated or interested party except upon terms not less favorable to the outstanding Shares of Series B Preferred Stock and Parity Preferred Stock upon which like voting rights have been conferred Company than it could obtain in a comparable arm’s length transaction with an unaffiliated or disinterested third party; (voting together as a single classb) shall be required to authorizecreate (by new authorization, create reclassification, recapitalization, designation or issue, otherwise) or increase the number of authorized or issued shares of, issue any class or series of Senior stock or any other securities convertible into equity securities of the Company having any right, preference or privilege senior to or on parity with the Series B Preferred Stock with respect to voting, dividends, redemption or liquidation preference; (c) alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, Series C Preferred Stock or reclassify Series D Preferred Stock (whether by merger, recapitalization or otherwise) so as to affect adversely such shares, or increase the authorized number of shares of any authorized such series of Preferred Stock; (d) enter into any bankruptcy filing, liquidation, assignment for the benefit of creditors or similar event of the Company or any significant subsidiary; (e) make any redemption, repurchase, payment or declaration of any dividend or distribution on any shares of capital stock of the Corporation into Senior Company other than the Series B Preferred Stock, Series C Preferred Stock or createSeries D Preferred Stock; or (f) issue or sell, authorize or issue any obligation be deemed to have issued or security convertible into sold, Common Stock for an Effective Price (as defined below) less than the then-current Fair Market Value (as defined below) of the Company’s Common Stock. (i) For the purposes of this section (f), the “Fair Market Value” of the Company’s Common Stock shall mean: (A) If the Company’s Common Stock is traded on a securities exchange (which shall include the Nasdaq Stock Market), the value shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the 30 day period ending on the date prior to the closing of the sale and issuance of the shares of Common Stock; (B) If Corporation’s Common Stock is traded over-the-counter, the value shall be deemed to be the average of the closing bid or evidencing sale prices (whichever are applicable) over the right 30 day period ending on the date prior to purchase Senior the closing of the sale and issuance of the Equity Securities; and (C) If there is no public market for the Company’s Common Stock, the value shall be the fair market value thereof, as determined in good faith by the Board of Directors of the Company. (ii) So long as any For the purposes of this section (f), if the Company issues or sells (x) Preferred Stock or other stock, options, warrants, purchase rights or other securities convertible into shares of Series B Preferred Common Stock remain outstanding(such convertible stock or securities being herein referred to as “Convertible Securities”) or (y) rights or options for the purchase of Common Stock or Convertible Securities and if the Effective Price (as defined below) of such shares of Common Stock is less than the then-current Fair Market Value, in each case the holders Company shall be deemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of shares of Series B Preferred Common Stock also shall issuable upon exercise or conversion thereof and to have received as consideration for the exclusive right issuance of such shares an amount equal to vote on any amendment, alteration or repeal the total amount of the Charterconsideration, including if any, received by the terms Company for the issuance of such rights or options or Convertible Securities. (iii) For the purposes of this paragraph (f) the “Effective Price” of the Common Stock shall mean the quotient determined by dividing the total number of shares of Common Stock issued or sold, or deemed to have been issued or sold by the Company under this paragraph (f), into the Aggregate Consideration received, or deemed to have been received by the Company for such issue under this section, for such shares of Common Stock. In the event that the number of shares of Common Stock or the Effective Price cannot be ascertained at the time of issuance, such shares of Common Stock shall be deemed to have an Effective Price below the then-current Fair Market Value. The “Aggregate Consideration” received by the Company for any issue or sale of securities shall be defined as: (A) to the extent it consists of cash, be computed at the gross amount of cash received by the Company before deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Company in connection with such issue or sale and without deduction of any expenses payable by the Company, (B) to the extent it consists of property other than cash, be computed at the fair value of that property as determined in good faith by the Board, and (C) if shares of Common Stock, Convertible Securities (as defined below) or rights or options to purchase either shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration so received that may be reasonably determined in good faith by the Board to be allocable to such shares of Common Stock, Convertible Securities or rights or options. (iv) The provisions of section (f) shall not apply to issuances of: (A) shares of Common Stock issued upon conversion of the Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock or exercise of the warrants issued in connection with the original issuance of Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock; (B) shares of Common Stock or Convertible Securities issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that would alter only are approved by the contract rightsBoard provided that, (i) such options were granted with an exercise price equal to or greater than the then-current fair market value (as expressly set forth “fair market value” is defined in the Charter, relevant plan) or (ii) such shares were issued pursuant to a IRC 423 plan with an exercise price equal to or greater than 85% of the then-current fair market value (as such “fair market value” is defined in the relevant plan); (C) shares of Common Stock issued pursuant to the exercise of Convertible Securities outstanding as of the date of filing of the Certificate of Designation for the Series D Preferred Stock (including without limitation the Series B Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock issued and outstanding at the time. With respect to any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that equally affects the terms of the Series B C Preferred Stock and any Parity Series D Preferred Stock upon which like voting rights have been conferred, the holders of Stock); and (D) shares of Series B Preferred Common Stock and such Parity Preferred Stock (voting together as or Convertible Securities issued for consideration other than cash pursuant to a single class) also shall have merger, consolidation, acquisition, strategic alliance or similar business combination approved by the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B Preferred Stock and such Parity Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock and such Parity Preferred Stock issued and outstanding at the timeBoard.

Special Voting Rights. (i) So long Subject to the loss of the following voting rights as any Shares of Series B Preferred Stock remain outstanding, in addition to any other vote or consent of stockholders required by the Charterdescribed below, the affirmative vote Company shall not take, approve or consent otherwise ratify any of the following actions without the approval of the holders of two-thirds a majority of the outstanding Shares shares of the Series B A-2 Preferred Stock: · (other than the issuance of shares of Preferred Stock and Parity as payment of accrued dividends on Preferred Stock) any authorization or issuance of any equity security ranking senior to or pari passu with the Preferred Stock, except to the extent the Company complies with its obligations described in “– Right of First Refusal” below · (other than the issuance of shares of Preferred Stock upon which like voting rights have been conferred as payment of accrued dividends on Preferred Stock) any stock dividends of (voting together or on) Preferred Stock, stock splits of Preferred Stock, stock combinations of Preferred Stock, stock distributions of Preferred Stock or other actions having the same effects with respect to the Preferred Stock; · any amendment, modification or restatement of the Company’s certificate of incorporation or bylaws that adversely affects rights, preferences or privileges of the Preferred Stock, whether directly or indirectly, through a merger or otherwise; · (other than as a single class) shall be required to authorize, create or issue, or increase the number result of authorized or issued shares of, any class or series automatic removals of Senior Stock or reclassify any authorized shares of capital stock of the Corporation into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase Senior Stock. (ii) So long as any shares of Series B Preferred Stock remain outstanding, directors elected by the holders of shares of Series B the Preferred Stock also shall have effected in accordance with the exclusive right to vote on Company’s certificate of incorporation) any amendment, alteration change in the number or repeal composition of the CharterBoard of Directors as set forth in the Certificate of Designation. See “The Offer - Amendment to Restated Certificate of Incorporation; By-Laws”; and · (other than, including as required or permitted under the terms of the Series B Certificate of Designation or an Exchange (as defined below)) any repurchase, exchange or redemption of Preferred Stock by the Company or any other payment in respect of, or return of the purchase price of, the Preferred Stock, that would alter only . An “Exchange” means an exchange with respect to Series A-2 Preferred Stock pursuant to the contract rights, as expressly set forth in the Charter, terms of Section 11 of the Series B Preferred Stock, and the Commitment Agreement. The holders of any other classes or series of capital stock of the Corporation Series A-2 Preferred Stock shall not be entitled to vote on the Permitted Merger. If at any such amendment, alteration or repeal. Any such amendment, alteration or repeal time there shall require the affirmative vote or consent of the holders of two-thirds of the be outstanding shares of Series B Preferred Stock issued and outstanding at the time. With respect to any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that equally affects the terms of the Series B A-2 Preferred Stock and any Parity Preferred Stock upon which like voting rights have been conferredwith an aggregate Stated Value of less than $75 million, the holders of shares of Series B Preferred Stock and such Parity Preferred Stock (voting together as a single class) also shall have the exclusive right subject to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly certain exceptions set forth in the CharterCertificate of Designation, of the Series B Preferred Stock and such Parity Preferred Stock, and then the holders of any other classes or series of capital stock of the Corporation Series A-2 Preferred Stock shall not no longer be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock and such Parity Preferred Stock issued and outstanding at the timerights described in this “Special Voting Rights” section.

Special Voting Rights. (i) So long as any Shares After June 30, 2001, the number of directors constituting the Board of Directors of the Company shall be increased by one, and the holders of Series B A Preferred Stock, voting as a separate series shall be entitled by written consent or at the next annual meeting of stockholders or the next special meeting of stockholders, or at a special meeting of holders of Series A Preferred Stock remain outstandingcalled as hereinafter provided, in addition to elect a director to fill such newly created directorship, without diminution of their right to participate with holders of Common Stock and holders, if any, of any other capital stock of the Company entitled to vote or for the election of directors in the election of any other directors. Whenever such voting right shall vest, it may be exercised initially by consent of stockholders required by the Charter, the affirmative vote or consent in writing of the holders of two-thirds of the Series A Preferred Stock at the time outstanding Shares or at a special meeting of holders of Series B A Preferred Stock and Parity or at any annual or special stockholders' meeting, but thereafter it shall be exercised only at annual stockholders' meetings. A special meeting for the exercise of such right shall be called by the Secretary of the Company within ten days after receipt of a written request therefor, signed by the holders of record of at least 10% of the votes of the then outstanding shares of Series A Preferred Stock; however, no such special meeting shall be held during the 90-day period preceding the date fixed for the annual meeting of stockholders. Any director who shall have been elected by holders of Series A Preferred Stock as a series pursuant to this subsection shall hold office for a term expiring (subject to the earlier termination of arrearages) at the next annual meeting of stockholders, and during such term may be removed at any time, either for or without cause, only by the affirmative votes of holders of record of a majority of the votes of the then outstanding shares of Series A Preferred Stock given at a special meeting of such stockholders called for the purpose or by written consent of two- thirds. Any vacancy created by such removal may also be filled at such meeting or by such a consent. A meeting for the removal of a director elected by holders of Series A Preferred Stock as a series and the filling of the vacancy created thereby shall be called by the Secretary of the Company within ten days after receipt of a written request therefor, signed by the holders of not less than 25% of the votes of the then outstanding shares of Series A Preferred Stock. Such meeting shall be held at the earliest practicable date thereafter. Any vacancy caused by the death, resignation, or expiration of term (except upon which like voting rights a termination of arrearages) of a director who shall have been conferred (voting together elected by the holders of Series A Preferred Stock as a single class) series pursuant to this subsection may be filled only by the holders of Series A Preferred Stock by written consent of two-thirds, at any annual or special stockholders' meeting, or at a meeting called for such purpose. Such meeting of the holders of Series A Preferred Stock shall be called by the Secretary of the Company at the earliest practicable date after any such death or resignation and in any event within ten days after receipt of a written request therefor, signed by the holders of record of at least 10% of the votes of the then outstanding shares of Series A Preferred Stock. If any meeting of the holders of Series A Preferred Stock required by this subsection to be called shall not have been called within ten days after personal service of a written request therefor upon the Secretary of the Company or within 15 days after mailing the same within the United States of America by registered mail addressed to the Secretary of the Company at its principal office, then holders of record of at least 10% of the votes of the then outstanding shares of Series A Preferred Stock may designate in writing one of their number to call such a meeting may be called by such person so designated upon the notice required for annual meetings of stockholders. Any holder of Series A Preferred Stock so designated shall have access to the stock books of the Company for the purpose of causing meetings of stockholders to be called pursuant to these provisions. Any meetings of holders of Series A Preferred Stock to vote as a series for the election or removal of directors shall be held at such place or places designated in the Company's Bylaws for meeting of its stockholders or at such other place as the holders of at least 10% of the votes of the then outstanding shares of Series A Preferred Stock may designate. At such meeting, the presence in person or by proxy of holders of a majority of the votes of the then outstanding shares of Series A Preferred Stock shall be required to authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of Senior Stock or reclassify any authorized shares of capital stock of the Corporation into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase Senior Stock. (ii) So long as any shares of Series B Preferred Stock remain outstanding, the holders of shares of Series B Preferred Stock also shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth constitute a quorum; in the Charterabsence of a quorum, of the Series B Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent a majority of the holders of two-thirds of present in person or by proxy shall have power to adjourn the shares of Series B Preferred Stock issued and outstanding meeting from time to time without notice, other than announcement at the time. With respect to any amendmentmeeting, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that equally affects the terms of the Series B Preferred Stock and any Parity Preferred Stock upon which like voting rights have been conferred, the holders of shares of Series B Preferred Stock and such Parity Preferred Stock (voting together as until a single class) also quorum shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B Preferred Stock and such Parity Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock and such Parity Preferred Stock issued and outstanding at the timepresent.

Special Voting Rights. (i) So For so long as any the total number of Investor Shares comprises at least 30% of Series B Preferred Stock remain outstanding, in addition to any other vote or consent the total number of stockholders required Investor Shares held by the CharterInvestors as of immediately following the Closing, the affirmative vote or consent Company shall not, without first obtaining the approval of holders of a majority in interest of the holders of two-thirds of Investor Shares on such date: (a) enter into a transaction with an affiliated or interested party except upon terms not less favorable to the outstanding Shares of Series B Preferred Stock and Parity Preferred Stock upon which like voting rights have been conferred Company than it could obtain in a comparable arm’s length transaction with an unaffiliated or disinterested third party; (voting together as a single classb) shall be required to authorizecreate (by new authorization, create reclassification, recapitalization, designation or issue, otherwise) or increase the number of authorized or issued shares of, issue any class or series of Senior stock or any other securities convertible into equity securities of the Company having any right, preference or privilege senior to or on parity with any series of preferred stock of the Company then held by any Investor with respect to voting, dividends, redemption or liquidation preference; (c) alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or reclassify Series F Preferred Stock (whether by merger, recapitalization or otherwise) so as to affect adversely such shares, or increase the authorized number of shares of any authorized such series of Preferred Stock; (d) enter into any bankruptcy filing, liquidation, assignment for the benefit of creditors or similar event of the Company or any significant subsidiary; (e) make any redemption, repurchase, payment or declaration of any dividend or distribution on any shares of capital stock of the Corporation into Senior Company other than the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock Series E Preferred Stock or createSeries F Preferred Stock; or (f) issue or sell, authorize or issue any obligation be deemed to have issued or security convertible into sold, Common Stock for an Effective Price (as defined below) less than the then-current Fair Market Value (as defined below) of the Company’s Common Stock. (i) For the purposes of this section (f), the “Fair Market Value” of the Company’s Common Stock shall mean: (A) If the Company’s Common Stock is traded on a securities exchange (which shall include the Nasdaq Stock Market), the value shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the 30 day period ending on the date prior to the closing of the sale and issuance of the shares of Common Stock; (B) If Corporation’s Common Stock is traded over-the-counter, the value shall be deemed to be the average of the closing bid or evidencing sale prices (whichever are applicable) over the right 30 day period ending on the date prior to purchase Senior the closing of the sale and issuance of the Equity Securities; and (C) If there is no public market for the Company’s Common Stock, the value shall be the fair market value thereof, as determined in good faith by the Board of Directors of the Company. (ii) So long as any For the purposes of this section (f), if the Company issues or sells (x) Preferred Stock or other stock, options, warrants, purchase rights or other securities convertible into shares of Series B Preferred Common Stock remain outstanding(such convertible stock or securities being herein referred to as “Convertible Securities”) or (y) rights or options for the purchase of Common Stock or Convertible Securities and if the Effective Price (as defined below) of such shares of Common Stock is less than the then-current Fair Market Value, in each case the holders Company shall be deemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of shares of Series B Preferred Common Stock also shall issuable upon exercise or conversion thereof and to have received as consideration for the exclusive right issuance of such shares an amount equal to vote on any amendment, alteration or repeal the total amount of the Charterconsideration, including if any, received by the terms Company for the issuance of such rights or options or Convertible Securities. (iii) For the purposes of this paragraph (f) the “Effective Price” of the Common Stock shall mean the quotient determined by dividing the total number of shares of Common Stock issued or sold, or deemed to have been issued or sold by the Company under this paragraph (f), into the Aggregate Consideration received, or deemed to have been received by the Company for such issue under this section, for such shares of Common Stock. In the event that the number of shares of Common Stock or the Effective Price cannot be ascertained at the time of issuance, such shares of Common Stock shall be deemed to have an Effective Price below the then-current Fair Market Value. The “Aggregate Consideration” received by the Company for any issue or sale of securities shall be defined as: (A) to the extent it consists of cash, be computed at the gross amount of cash received by the Company before deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Company in connection with such issue or sale and without deduction of any expenses payable by the Company, (B) to the extent it consists of property other than cash, be computed at the fair value of that property as determined in good faith by the Board, and (C) if shares of Common Stock, Convertible Securities (as defined below) or rights or options to purchase either shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration so received that may be reasonably determined in good faith by the Board to be allocable to such shares of Common Stock, Convertible Securities or rights or options. (iv) The provisions of section (f) shall not apply to issuances of: (A) shares of Common Stock issued upon conversion of the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Series F Preferred Stock, or exercise of the warrants issued in connection with the original issuance of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock; (B) shares of Common Stock or Convertible Securities issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that would alter only are approved by the contract rightsBoard provided that, (i) such options were granted with an exercise price equal to or greater than the then-current fair market value (as expressly set forth “fair market value” is defined in the Charter, relevant plan) or (ii) such shares were issued pursuant to a IRC 423 plan with an exercise price equal to or greater than 85% of the then-current fair market value (as such “fair market value” is defined in the relevant plan); (C) shares of Common Stock issued pursuant to the exercise of Convertible Securities outstanding as of the date of filing of the Certificate of Designation for the Series E Preferred Stock (including without limitation the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock); (D) shares of Common Stock or Convertible Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the Board; and (E) shares of Series B F Preferred Stock issued and outstanding at pursuant to the time. With respect to any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that equally affects the terms of the Series B Preferred Stock and any Parity Preferred Stock upon which like voting rights have been conferred, the holders of shares of Series B Preferred Stock and such Parity Preferred Stock (voting together as a single class) also shall have the exclusive right to vote on any amendment, alteration or repeal of the Charter, including the terms of the Series B Preferred Stock, that would alter only the contract rights, as expressly set forth in the Charter, of the Series B Preferred Stock and such Parity Preferred Stock, and the holders of any other classes or series of capital stock of the Corporation shall not be entitled to vote on any such amendment, alteration or repeal. Any such amendment, alteration or repeal shall require the affirmative vote or consent of the holders of two-thirds of the shares of Series B Preferred Stock and such Parity Preferred Stock issued and outstanding at the timeExchange Agreement.