SERIES A PREFERRED STOCK,
SERIES B PREFERRED STOCK AND SERIES C PREFERRED STOCK SHALL BE OF JUNIOR RANK TO
ALL PREFERRED SHARES WITH RESPECT TO THE PREFERENCES AS TO DIVIDENDS,
DISTRIBUTIONS AND PAYMENTS UPON THE LIQUIDATION, DISSOLUTION AND WINDING UP OF
THE
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COMPANY. THE RIGHTS OF THE SHARES OF COMMON STOCK SHALL BE SUBJECT TO THE
PREFERENCES AND RELATIVE RIGHTS OF THE PREFERRED SHARES. WITHOUT THE PRIOR
EXPRESS WRITTEN CONSENT OF THE REQUIRED HOLDERS, THE COMPANY SHALL NOT HEREAFTER
AUTHORIZE OR ISSUE ADDITIONAL OR OTHER CAPITAL STOCK THAT IS OF SENIOR OR
PARI-PASSU RANK TO THE PREFERRED SHARES IN RESPECT OF THE PREFERENCES AS TO
DISTRIBUTIONS AND PAYMENTS UPON A LIQUIDATION EVENT. THE COMPANY SHALL BE
PERMITTED TO ISSUE PREFERRED STOCK THAT IS JUNIOR IN RANK TO THE PREFERRED
SHARES IN RESPECT OF THE PREFERENCES AS TO DIVIDENDS AND OTHER DISTRIBUTIONS,
AMORTIZATION AND REDEMPTION PAYMENTS AND PAYMENTS UPON THE LIQUIDATION,
DISSOLUTION AND WINDING UP OF THE COMPANY, PROVIDED THAT THE MATURITY DATE (OR
ANY OTHER DATE REQUIRING REDEMPTION OR REPAYMENT (WHETHER THROUGH A SCHEDULED
AMORTIZATION, REDEMPTION OR OTHERWISE) OF SUCH PREFERRED STOCK) OF ANY SUCH
JUNIOR PREFERRED STOCK IS NOT ON OR BEFORE THE NINETY-FIRST (91ST) DAY FOLLOWING
THE MATURITY DATE. IN THE EVENT OF THE MERGER OR CONSOLIDATION OF THE COMPANY
WITH OR INTO ANOTHER CORPORATION, THE PREFERRED SHARES SHALL MAINTAIN THEIR
RELATIVE POWERS, DESIGNATIONS AND PREFERENCES PROVIDED FOR HEREIN (EXCEPT THAT
THE PREFERRED SHARES MAY NOT BE PARI PASSU WITH, OR JUNIOR TO, ANY CAPITAL STOCK
OF THE SUCCESSOR ENTITY) AND NO MERGER SHALL RESULT INCONSISTENT
THEREWITH.
(B)
ISSUANCES OF EQUITY-LINKED SECURITIES. FOR SO LONG AS ANY PREFERRED SHARES
ARE OUTSTANDING, THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY, OFFER, SELL,
GRANT ANY OPTION TO PURCHASE, OR OTHERWISE DISPOSE OF (OR ANNOUNCE ANY OFFER,
SALE, GRANT OR ANY OPTION TO PURCHASE OR OTHER DISPOSITION OF) ANY INDEBTEDNESS
OF IT OR ITS SUBSIDIARIES THAT IS, AT ANY TIME DURING ITS LIFE AND UNDER ANY
CIRCUMSTANCES, CONVERTIBLE INTO OR EXCHANGEABLE OR EXERCISABLE FOR SHARES OF
COMMON STOCK, OPTIONS, CONVERTIBLE SECURITIES OR OTHER CAPITAL STOCK OF THE
COMPANY.
(10)
LIMITATION ON NUMBER OF CONVERSION SHARES. NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED HEREIN, THE COMPANY SHALL NOT ISSUE ANY SHARES OF COMMON
STOCK UPON CONVERSION OF THE PREFERRED SHARES IF THE ISSUANCE OF SUCH SHARES OF
COMMON STOCK WOULD EXCEED THAT NUMBER OF SHARES OF COMMON STOCK WHICH THE
COMPANY MAY ISSUE UPON CONVERSION OF THE PREFERRED SHARES WITHOUT BREACHING THE
COMPANY'S OBLIGATIONS UNDER THE RULES OR REGULATIONS OF THE PRINCIPAL MARKET, OR
THE MARKET OR EXCHANGE WHERE THE COMMON STOCK IS THEN TRADED (THE "EXCHANGE
CAP"), EXCEPT THAT SUCH LIMITATION SHALL NOT APPLY IN THE EVENT THAT THE COMPANY
(A) OBTAINS THE STOCKHOLDER APPROVAL AS REQUIRED BY THE APPLICABLE RULES OF THE
PRINCIPAL MARKET (AND ANY SUCCESSOR RULE OR REGULATION) FOR ISSUANCES OF COMMON
STOCK IN EXCESS OF SUCH AMOUNT, OR (B) OBTAINS A WRITTEN OPINION FROM OUTSIDE
COUNSEL TO THE COMPANY THAT SUCH APPROVAL IS NOT REQUIRED, WHICH OPINION