Common use of Part One Clause in Contracts

Part One. (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is One Million Five Hundred Thirty Six Thousand (1,536,000) shares, consisting of: (i) Nine Hundred Fifty Six Thousand (956,000) shares of Common Stock, no par value per share (“Common Stock”); and (ii) Five Hundred Eighty Thousand (580,000) shares of Preferred Stock, no par value per share (“Preferred Stock”), of which Two Hundred Eighty Thousand (280,000) shares are shares of New Class A 3% Cumulative Participating Preferred Stock (“New Class A Preferred Stock”) and Three Hundred Thousand (300,000) shares are shares of New Class B 5% Cumulative Participating Preferred Stock (“New Class B Preferred Stock”). The express terms and provisions of the Preferred Stock are as set forth in Part Two of this Article Fourth. (b) There shall be several series of the New Class A Preferred Stock. Except as regards the designation, the Subscription Price (as defined below in Part Two of this Article Fourth) and the Conversion Price (as defined below in Part Two of this Article Fourth) of such series, the express terms of each series of New Class A Preferred Stock shall be identical. As of the date these Third Amended and Restated Articles of Incorporation are filed, there is one (1) authorized series of New Class A Preferred Stock, the New A-1 Series. The Corporation has authority to issue Seventy One Thousand One Hundred Seventy-Four (71,174) shares of the New A-1 Series of New Class A Preferred Stock. Authority is hereby granted expressly to the Board of Directors from time to time to adopt amendments to these Third Amended and Restated Articles of Incorporation providing for the issue, pursuant to acquisitions approved by the Board of Directors in accordance with Section 5.3 of the Investment and Recapitalization Agreement dated as of July 14, 2006 among the Corporation and several investors (the “Recapitalization Agreement”), in one or more series of any unissued shares of the New Class A Preferred Stock (as of the date these Third Amended and Restated Articles of Incorporation are filed, there are Two Hundred Eight Thousand Eight Hundred Twenty Six (208,826) such unissued shares), and to fix, by the amendment creating each such series of the New Class A Preferred Stock, the designation and number of shares, the Subscription Price and the Conversion Price of such shares, to the fullest extent now or hereafter permitted by the laws of the State of Ohio and notwithstanding the provisions of any other Article of these Third Amended and Restated Articles of Incorporation, in respect of the matters set forth in the following subdivisions (i) to (iii), inclusive: (i) The designation and number of shares of such series; (ii) The Subscription Price for shares of such series; (iii) The Conversion Price for shares of such series. The Subscription Price and Conversion Price of shares of any such series of New Class A Preferred Stock may, to the fullest extent now or hereafter permitted by the laws of the State of Ohio, be made dependent upon facts ascertainable outside these Third Amended and Restated Articles of Incorporation or outside the amendment or amendments providing for the issue of such series of New Class A Preferred Stock adopted by the Board of Directors pursuant to authority expressly vested in it by this Part One of this Article Fourth. (c) There shall be several series of New Series B Preferred Stock. Except as regards the designation, the Subscription Price and Conversion Price of such series, the express terms of each series of New Class B Preferred Stock shall be identical. As of the date these Third Amended and Restated Articles of Incorporation are filed, there are five (5) authorized series of New Class B Preferred Stock, the New B-1 Series, the New B-2 Series, the New B-3 Series, the New B-4 Series and the New B-5 Series. The number of shares authorized for each such series is as set forth below: Series No. of Authorized Shares New B-1 Series 130,250 New B-2 Series 26,975 New B-3 Series 107,775 New B-4 Series 31,634 New B-5 Series 3,366 (d) The Corporation shall from time to time in accordance with the laws of the State of Ohio increase the authorized amount of its Common Stock if at any time the number of shares of Common Stock remaining unissued and available for issuance shall not be sufficient to permit the conversion of the Preferred Stock into Common Stock in accordance with the terms of this Article Fourth governing such conversion. (e) Except as otherwise provided in this Article Fourth, in the Investment Agreement dated May 17, 2004 (the “2004 Investment Agreement”) between Walnut Investment Partners, L.P. (“WIP”) and the Corporation, in the Investment Agreement dated as of May 6, 2005 among WIP, Walnut Private Equity Fund, L.P. (“WPEF”) (WIP and WPEF collectively, “Walnut”), ▇▇▇▇ ▇. ▇▇▇▇▇▇ (“▇▇▇▇▇▇”) and the Corporation (the “Series D Investment Agreement”), in the Irrevocable Subscription Agreement dated as of May 6, 2005 between the Corporation and The ▇▇▇▇▇▇ ▇. ▇’▇▇▇▇ Family Trust (“▇. ▇’▇▇▇▇”) (the “Series E Investment Agreement”), in the Contribution Agreement dated as of May 9, 2005 among the Corporation, Marsupial Holdings, Inc., Platypus Holdings, LLC, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the “Series C Investment Agreement”), in the Investment Agreement dated as of December 16, 2005 among the Corporation and certain investors (the “Series F Investment Agreement”), in the Irrevocable Subscription Agreement dated as of December 16, 2005 between ▇. ▇’▇▇▇▇ and the Corporation and in the Recapitalization Agreement, no holder of shares of the Corporation of any class, now or hereafter authorized, shall have any preferential or preemptive rights to subscribe for, purchase or receive: (i) any shares of the Corporation of any class, now or hereafter authorized; or (ii) any options or warrants for such shares; or (iii) any rights to subscribe for, purchase or receive any securities participating to or exchangeable for such shares, which may at any time be issued, granted, sold or offered for sale by the Corporation.

Part One. (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is One Million Five Hundred Thirty Six Thousand (1,536,000) shares, consisting of: (i) Nine Hundred Fifty Six Thousand (956,000) shares of Common Stock, no par value per share (“Common Stock”); and (ii) Five Hundred Eighty Thousand (580,000) shares of Preferred Stock, no par value per share (“Preferred Stock”), of which Two Hundred Eighty Thousand (280,000) shares are shares of New Class A 3% Cumulative Participating Preferred Stock (“New Class A Preferred Stock”) and Three Hundred Thousand (300,000) shares are shares of New Class B 5% Cumulative Participating Preferred Stock (“New Class B Preferred Stock”). The express terms and provisions of the Preferred Stock are as set forth in Part Two of this Article Fourth. (b) There shall be several series of the New Class A Preferred Stock. Except as regards the designation, the Subscription Price (as defined below in Part Two of this Article Fourth) and the Conversion Price (as defined below in Part Two of this Article Fourth) of such series, the express terms of each series of New Class A Preferred Stock shall be identical. As of the date these Third Amended and Restated Articles of Incorporation are filed, there is one (1) authorized series of New Class A Preferred Stock, the New A-1 Series. The Corporation has authority to issue Seventy One Thousand One Hundred Seventy-Four (71,174) shares of the New A-1 Series of New Class A Preferred Stock. Authority is hereby granted expressly to the Board of Directors from time to time to adopt amendments to these Third Amended and Restated Articles of Incorporation providing for the issue, pursuant to acquisitions approved by the Board of Directors in accordance with Section 5.3 of the Investment and Recapitalization Agreement dated as of July 14, 2006 among the Corporation and several investors (the “Recapitalization Agreement”), in one or more series of any unissued shares of the New Class A Preferred Stock (as of the date these Third Amended and Restated Articles of Incorporation are filed, there are Two Hundred Eight Thousand Eight Hundred Twenty Six (208,826) such unissued shares), and to fix, by the amendment creating each such series of the New Class A Preferred Stock, the designation and number of shares, the Subscription Price and the Conversion Price of such shares, to the fullest extent now or hereafter permitted by the laws of the State of Ohio and notwithstanding the provisions of any other Article of these Third Amended and Restated Articles of Incorporation, in respect of the matters set forth in the following subdivisions (i) to (iii), inclusive: (i) The designation and number of shares of such series; (ii) The Subscription Price for shares of such series; (iii) The Conversion Price for shares of such series. . (c) The Subscription Price and Conversion Price of shares of any such series of New Class A Preferred Stock may, to the fullest extent now or hereafter permitted by the laws of the State of Ohio, be made dependent upon facts ascertainable outside these Third Amended and Restated Articles of Incorporation or outside the amendment or amendments providing for the issue of such series of New Class A Preferred Stock adopted by the Board of Directors pursuant to authority expressly vested in it by this Part One of this Article Fourth. (c) . There shall be several series of New Series B Preferred Stock. Except as regards the designation, the Subscription Price and Conversion Price of such series, the express terms of each series of New Class B Preferred Stock shall be identical. As of the date these Third Amended and Restated Articles of Incorporation are filed, there are five (5) authorized series of New Class B Preferred Stock, the New B-1 Series, the New B-2 Series, the New B-3 Series, the New B-4 Series and the New B-5 Series. The number of shares authorized for each such series is as set forth below: Series No. of Authorized Shares New B-1 Series 130,250 New B-2 Series 26,975 New B-3 Series 107,775 New B-4 Series 31,634 New B-5 Series 3,366 3,366 (d) The Corporation shall from time to time in accordance with the laws of the State of Ohio increase the authorized amount of its Common Stock if at any time the number of shares of Common Stock remaining unissued and available for issuance shall not be sufficient to permit the conversion of the Preferred Stock into Common Stock in accordance with the terms of this Article Fourth governing such conversion. (e) Except as otherwise provided in this Article Fourth, in the Investment Agreement dated May 17, 2004 (the “2004 Investment Agreement”) between Walnut Investment Partners, L.P. (“WIP”) and the Corporation, in the Investment Agreement dated as of May 6, 2005 among WIP, Walnut Private Equity Fund, L.P. (“WPEF”) (WIP and WPEF collectively, “Walnut”), ▇▇▇▇ ▇. ▇▇▇▇▇▇ (“▇▇▇▇▇▇”) and the Corporation (the “Series D Investment Agreement”), in the Irrevocable Subscription Agreement dated as of May 6, 2005 between the Corporation and The ▇▇▇▇▇▇ ▇. ▇’▇▇▇▇ Family Trust (“▇. ▇’▇▇▇▇”) (the “Series E Investment Agreement”), in the Contribution Agreement dated as of May 9, 2005 among the Corporation, Marsupial Holdings, Inc., Platypus Holdings, LLC, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the “Series C Investment Agreement”), in the Investment Agreement dated as of December 16, 2005 among the Corporation and certain investors (the “Series F Investment Agreement”), in the Irrevocable Subscription Agreement dated as of December 16, 2005 between ▇. ▇’▇▇▇▇ and the Corporation and in the Recapitalization Agreement, no holder of shares of the Corporation of any class, now or hereafter authorized, shall have any preferential or preemptive rights to subscribe for, purchase or receive: (i) any shares of the Corporation of any class, now or hereafter authorized; or (ii) any options or warrants for such shares; or (iii) any rights to subscribe for, purchase or receive any securities participating to or exchangeable for such shares, which may at any time be issued, granted, sold or offered for sale by the Corporation.