Common use of Voting Rights; Board Representation Clause in Contracts

Voting Rights; Board Representation. (a) The holders of Series A Preferred Stock are entitled to vote on all matters on which the holders of Common Stock are entitled to vote, and except as otherwise provided herein or by law, the holders of Series A Preferred Stock will vote together with the holders of Common Stock as a single class. Each holder of Series A Preferred Stock is entitled to a number of votes equal to the number of shares of Common Stock into which all of the outstanding shares of Series A Preferred Stock held by such holder on the record date for any such vote are convertible as of such record date without giving effect to the limitations set forth in SECTION 5(b); provided, however, that in any vote of the holders of the Series A Preferred Stock, Common Stock and any other securities that constitute Voting Stock voting together as a single class, to the extent that the aggregate voting power of a holder of Series A Preferred Stock together with its Affiliates would exceed 19.9% of the Maximum Voting Power (the “Maximum Voting Percentage”), then the aggregate number of votes entitled to be cast in such vote by such holder and its Affiliates with respect to the Series A Preferred Stock held by such holder and its Affiliates will be reduced, pro rata, to that number (not less than zero) that results in the aggregate voting power of such holder and its Affiliates in such vote being equal to the Maximum Voting Percentage of the Maximum Voting Power of the Company. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all capital stock on the applicable matter subject to the vote of the Common Stock, Series A Preferred Stock and any other securities that constitute Voting Stock voting together as a single class and after giving effect to any limitation on voting power set forth in this Certificate of Designation and the certificate of designation or other similar document governing other Voting Stock.

Voting Rights; Board Representation. (a) The holders of Series A B Preferred Stock shall have no voting rights other than those set forth in SECTION 4(b) below. (b) So long as any shares of Series B Preferred Stock are entitled to vote on all matters on which the holders of Common Stock are entitled to vote, outstanding and except as otherwise provided herein or by lawexpressly permitted hereby, the Company and its subsidiaries may not take any of the following actions (including by means of merger, consolidation, reorganization, recapitalization or otherwise) without the prior vote or written consent of holders representing at least a majority of the then-outstanding shares of Series B Preferred Stock, voting together as a separate class: (i) any amendment, repeal, alteration, addition, deletion or other change to the powers, preferences, rights or privileges of the Series B Preferred Stock in a manner adverse to the holders thereof (whether by Board resolution, amendment to the Certificate of Incorporation or Bylaws, merger, consolidation or otherwise); (ii) any increase or decrease in the authorized amount of shares of Series B Preferred Stock, except for the cancellation and retirement of shares set forth in SECTION 7(a); (iii) any issuance of additional shares of Series B Preferred Stock after the Series B Original Issuance Date, other than pursuant to the terms of the Certificate of Designation of the Series A Preferred Stock; or (iv) agree to do any of the foregoing actions set forth in clause (b)(i) through (b)(iii), unless such agreement expressly provides that the Company’s obligation to undertake any of the foregoing is subject to the prior approval of holders of Series A B Preferred Stock. Without expanding the scope of the foregoing voting rights of Series B Preferred Stock, it is understood that in the context of a Fundamental Change, so long as immediately following such Fundamental Change: (i) the Series B Preferred Stock will vote together with (or any preferred security into which the holders of Common Stock as a single class. Each holder of Series A B Preferred Stock is entitled to converted in such Fundamental Change as contemplated by clause (ii)(B) below) is convertible into the kind and amount of shares of capital stock, other securities or other property receivable upon such Fundamental Change by a number holder of votes equal to the a number of shares of Common Stock into which all issuable upon conversion of the outstanding such shares of Series A B Preferred Stock held by such holder on the record date for any such vote are convertible as of such record date without giving effect to the limitations set forth in accordance with SECTION 5(b5(e); provided, however, that in any vote of the holders of and (ii) the Series A Preferred Stock, Common Stock and any other securities that constitute Voting Stock voting together as a single class, to the extent that the aggregate voting power of a holder of Series A B Preferred Stock together either: (A) remains outstanding with its Affiliates would exceed 19.9% of the Maximum Voting Power (the “Maximum Voting Percentage”)same powers, then the aggregate number of votes entitled to be cast in such vote by such holder preferences, rights and its Affiliates with respect to the Series A Preferred Stock held by such holder and its Affiliates will be reduced, pro rata, to that number (not less than zero) that results in the aggregate voting power of such holder and its Affiliates in such vote being equal to the Maximum Voting Percentage of the Maximum Voting Power of the Company. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all capital stock on the applicable matter subject to the vote of the Common Stock, Series A Preferred Stock and any other securities that constitute Voting Stock voting together as a single class and after giving effect to any limitation on voting power privileges set forth in this Certificate of Designation (except to the extent necessary or appropriate to implement clause (i) above), or (B) is converted into or otherwise exchanged for preferred securities of the surviving entity of such a Fundamental Change, which preferred securities have the same powers, preferences, rights and privileges (other than those that by their terms automatically terminate or otherwise are altered following such a Fundamental Change pursuant to the terms of this Certificate of Designation and other than to the extent necessary or appropriate to reflect the consummation of the transaction and the certificate fact that the issuer is a different entity) as the Series B Preferred Stock, provided that such exchange does not result in income tax consequences generally to U.S. individual holders of designation the Series B Preferred Stock that are more severe than the income tax consequences such holders would have suffered if such holders had been holders of Common Stock and been treated as such in the Fundamental Change; and (iii) in connection with such Fundamental Change, no action takes place that would otherwise require the approval of the holders of the Series B Preferred Stock pursuant to this SECTION 4(b), the Series B Preferred Stock shall not have any vote or other similar document governing other Voting Stockconsent as a separate class with respect to such Fundamental Change.

Voting Rights; Board Representation. (a) 4.1 The holders of Series A B Preferred Stock are entitled to vote on all matters on which the holders of Common Stock are entitled to vote, and except as otherwise provided herein or by law, the holders of Series A B Preferred Stock will vote together with the holders of Common Stock as a single class. Each holder of Series A B Preferred Stock is entitled to a number of votes equal to the number of shares of Common Stock into which all of the outstanding shares of Series A B Preferred Stock held by such holder on the record date for any such vote are convertible as of on such record date without giving effect to the limitations set forth in SECTION 5(b)date; provided, however, that the voting rights granted under this 4.1 shall be conditioned upon, and shall only be effective upon, the expiration or earlier termination of any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and the receipt of all applicable consents or approvals under the Federal Power Act, as amended (the “FPA”), in each case as required to be obtained prior to the exercise of such voting rights by the Original Holder (provided further, for the avoidance of doubt, to the extent the Original Holder determines at any vote of time, in its sole discretion, to exercise the holders voting rights provided in this 4.1 as to all or any portion of the Series A B Preferred Stock, Common then upon written notice to the Company specifying the applicable number of shares, the Original Holder (or any successor or transferee thereof) immediately thereafter shall be granted the voting rights specified under this 4.1 with respect to such specified shares of Series B Preferred Stock and so long as the granting of such voting rights does not require any other securities that constitute Voting prior expiration, termination, approval or consent under the HSR Act or FPA). For purposes of determining the number of votes to which a holder of Series B Preferred Stock is entitled for any vote during the Reset Period or as to which the applicable record date was during the Reset Period, the initial Conversion Price shall be deemed to be $8.00 (subject to adjustment as provided in 5). 4.2 So long as any shares of Series B Preferred Stock remain outstanding, except as otherwise provided by law, the Company may not take any of the following actions without the prior vote or written consent of holders representing at least a majority of the then outstanding shares of Series B Preferred Stock, voting together as a single separate class, to : (a) any issuance of shares of Series B Preferred Stock or other shares of Preferred Stock (excluding the extent that the aggregate voting power of a holder issuance of Series A Preferred Stock together of the Company pursuant to the Company Rights Plan or any successor thereto); (b) any amendment, repeal, alteration, addition, deletion or other change to the powers, designations, preferences, rights, qualifications, limitations or restrictions of the Series B Preferred Stock in any manner, including but not limited to by way of merger, consolidation or otherwise (unless pursuant to or in connection with, and in any such case effective only upon the consummation of, a transaction that constitutes a Change of Control), and whether by Board resolution, amendment to the Certificate of Incorporation or Bylaws or otherwise; (c) any authorization (and if authorized, any increase in the authorized amount), creation or issuance (including by way of merger, consolidation, reclassification or otherwise (unless pursuant to or in connection with, and in any such case effective only upon the consummation of, a transaction that constitutes a Change of Control) of any new class or series of capital stock having rights, preferences or privileges senior to or on parity with the Series B Preferred Stock; (d) any amendment, repeal, alteration, addition, deletion or other change of any provision of the Certificate of Incorporation or the Bylaws of the Company in any manner (including by way of merger, consolidation or otherwise (unless pursuant to or in connection with, and in any such case effective only upon the consummation of, a transaction that constitutes a Change of Control)) that adversely affects the powers, designations, preferences, rights, qualifications, limitations or restrictions of the Series B Preferred Stock to the holders thereof; (e) any authorization or making of any repurchase or redemption of any shares of Common Stock or any other engagement in any market making activities that could impact the trading value of the Common Stock during the Reset Period; (f) any liquidation or dissolution or the filing of a voluntary petition for bankruptcy or the adoption of any plan for any of the foregoing; (g) incurrence of any Debt (excluding (A) up to $750 million under the Facility or a similar arrangement that replaces or refinances the Facility and (B) any Debt the proceeds of which are used (I) to replace, refinance or defease any existing Debt provided that the principal amount (or accreted value, if applicable) of such newly incurred Debt does not exceed the principal amount (or accreted value, if applicable) of the existing Debt so replaced, refinanced or defeased (plus all accrued interest on such existing Debt and the amount of all expenses, costs and fees and premiums incurred in connection therewith) or (II) to redeem in full or in part the Series B Preferred Stock under the terms set forth herein) that would cause on a pro forma basis the ratio of (x) Consolidated Total Debt (including for such purposes the Series B Preferred Stock) to (y) Consolidated EBITDA for the four fiscal quarters most recently ended for which financial statements are available prior to such incurrence to exceed 5.00 to 1.00; and (h) entry into any contract, understanding or other arrangement to do any of the foregoing, except if such contract, understanding or arrangement expressly provides that the undertaking of any of the foregoing is subject to the prior approval of the holders of Series B Preferred Stock. 4.3 Effective as of the consummation of the purchase of the Series B Preferred Stock by the Original Holder on the Original Issuance Date, the number of directors constituting the Board shall be automatically increased by one (1) and the Original Holder shall have the right to designate one (1) individual (herein referred to as the “Preferred Nominee”), and the Board shall appoint such Preferred Nominee to such newly created directorship. The Preferred Nominee so appointed shall serve until the next annual meeting of the stockholders of the Company and until his or her successor is elected and qualifies, unless the Preferred Nominee is earlier removed pursuant to 4.4 below. The Board shall cause the Company to include the Preferred Nominee in the slate of nominees recommended by the Board to the holders of Common Stock for election at the 2009 annual meeting of stockholders of the Company and, subject to 4.4, for reelection at every meeting thereafter and shall use all commercially reasonable efforts to cause the election of the Preferred Nominee, including soliciting proxies in favor of his or her election. In the event the Preferred Nominee resigns, is unable to serve as a member of the Board, is removed from the Board or fails to be elected as a member of the Board at any annual stockholders meeting, the Original Holder shall have the right to nominate another individual (a “Substitute Nominee”) and the Board shall appoint such Substitute Nominee to fill the vacancy created by the resignation or removal of the prior Preferred Nominee, at which point such Substitute Nominee shall be deemed to be the Preferred Nominee. 4.4 Notwithstanding the foregoing, at such time as the outstanding shares of Series B Preferred Stock (or Common Stock issued on conversion of Series B Preferred Stock or a combination thereof) beneficially owned by the Original Holder and its Affiliates would exceed 19.9are less than 50% of the Maximum Voting Power shares of Series B Preferred Stock issued to the Original Holder or its Affiliates on the Original Issuance Date (the “Maximum Voting Percentage”or Common Stock issuable upon conversion of such Series B Preferred Stock (taking into account any adjustments under 5.4), then as applicable), then, automatically and immediately, without any further action on the aggregate part of the Company or the Board, the Preferred Nominee shall be removed from the Board and the number of votes directors constituting the Board shall be automatically decreased by one, and thereafter, the Original Holder shall not be entitled to be cast in such vote by such holder and its Affiliates with respect to designate the Series A Preferred Stock held by such holder and its Affiliates will be reduced, pro rata, to that number (not less than zero) that results in the aggregate voting power of such holder and its Affiliates in such vote being equal to the Maximum Voting Percentage of the Maximum Voting Power of the CompanyNominee or any Substitute Nominee under this 4. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all capital stock on the applicable matter subject to the vote of the Common Stock, Series A Preferred Stock and any other securities that constitute Voting Stock voting together as a single class and after giving effect to any limitation on voting power set forth in this Certificate of Designation The Company and the certificate Board shall take any and all actions within their respective power to ensure compliance with the terms of designation or other similar document governing other Voting Stockthis 4.4.

Voting Rights; Board Representation. (a) The holders of Series A C Preferred Stock shall have no voting rights other than those set forth in SECTION 4(b) below. (b) So long as any shares of Series C Preferred Stock are entitled to vote on all matters on which the holders of Common Stock are entitled to vote, outstanding and except as otherwise provided herein or by lawexpressly permitted hereby, the Company and its subsidiaries may not take any of the following actions (including by means of merger, consolidation, reorganization, recapitalization or otherwise) without the prior vote or written consent of holders representing at least a majority of the then-outstanding shares of Series C Preferred Stock, voting together as a separate class: (i) any amendment, repeal, alteration, addition, deletion or other change to the powers, preferences, rights or privileges of the Series C Preferred Stock in a manner adverse to the holders thereof (whether by Board resolution, amendment to the Certificate of Incorporation or Bylaws, merger, consolidation or otherwise); (ii) any increase or decrease in the authorized amount of shares of Series C Preferred Stock, except for the cancellation and retirement of shares set forth in SECTION 7(a); (iii) any issuance of additional shares of Series C Preferred Stock after the Series C Original Issuance Date, other than pursuant to the terms of the indenture governing the Notes; or (iv) agree to do any of the foregoing actions set forth in clause (b)(i) through (b)(iii), unless such agreement expressly provides that the Company’s obligation to undertake any of the foregoing is subject to the prior approval of holders of Series A C Preferred Stock. Without expanding the scope of the foregoing voting rights of Series C Preferred Stock, it is understood that in the context of a Fundamental Change, so long as immediately following such Fundamental Change: (i) the Series C Preferred Stock will vote together with (or any preferred security into which the holders of Common Stock as a single class. Each holder of Series A C Preferred Stock is entitled to converted in such Fundamental Change as contemplated by clause (ii)(B) below) is convertible into the kind and amount of shares of capital stock, other securities or other property receivable upon such Fundamental Change by a number holder of votes equal to the a number of shares of Common Stock into which all issuable upon conversion of the outstanding such shares of Series A C Preferred Stock held by such holder on the record date for any such vote are convertible as of such record date without giving effect to the limitations set forth in accordance with SECTION 5(b5(e); provided, however, that in any vote of the holders of and (ii) the Series A Preferred Stock, Common Stock and any other securities that constitute Voting Stock voting together as a single class, to the extent that the aggregate voting power of a holder of Series A C Preferred Stock together either: (A) remains outstanding with its Affiliates would exceed 19.9% of the Maximum Voting Power (the “Maximum Voting Percentage”)same powers, then the aggregate number of votes entitled to be cast in such vote by such holder preferences, rights and its Affiliates with respect to the Series A Preferred Stock held by such holder and its Affiliates will be reduced, pro rata, to that number (not less than zero) that results in the aggregate voting power of such holder and its Affiliates in such vote being equal to the Maximum Voting Percentage of the Maximum Voting Power of the Company. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all capital stock on the applicable matter subject to the vote of the Common Stock, Series A Preferred Stock and any other securities that constitute Voting Stock voting together as a single class and after giving effect to any limitation on voting power privileges set forth in this Certificate of Designation (except to the extent necessary or appropriate to implement clause (i) above), or (B) is converted into or otherwise exchanged for preferred securities of the surviving entity of such a Fundamental Change, which preferred securities have the same powers, preferences, rights and privileges (other than those that by their terms automatically terminate or otherwise are altered following such a Fundamental Change pursuant to the terms of this Certificate of Designation and other than to the extent necessary or appropriate to reflect the consummation of the transaction and the certificate fact that the issuer is a different entity) as the Series C Preferred Stock, provided that such exchange does not result in income tax consequences generally to U.S. individual holders of designation the Series C Preferred Stock that are more severe than the income tax consequences such holders would have suffered if such holders had been holders of Common Stock and been treated as such in the Fundamental Change; and (iii) in connection with such Fundamental Change, no action takes place that would otherwise require the approval of the holders of the Series C Preferred Stock pursuant to this SECTION 4(b), the Series C Preferred Stock shall not have any vote or other similar document governing other Voting Stockconsent as a separate class with respect to such Fundamental Change.