Common use of Right to Designate Clause in Contracts

Right to Designate. (i) So long as (x) the Series B Preferred Stockholders party to this Agreement on the date hereof, collectively with their Permitted Transferees that are Affiliates thereof, hold shares of Series B Preferred Stock and Common Stock representing in the aggregate at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series B Preferred Stock are convertible or have been converted, or (y) the Series C Preferred Stockholders party to this Agreement hold shares of Series C Preferred Stock and Common Stock representing at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series C Preferred Stock are convertible or have been converted, the Series B and C Preferred Stockholders shall collectively have the right to designate one (1) person for election to the Board; (ii) so long as the Series D Preferred Stockholders party to this Agreement on the date hereof, collectively with their Permitted Transferees that are Affiliates thereof, continue to hold shares of Series D Preferred Stock and Common Stock representing in the aggregate at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series D Preferred Stock are convertible or have been converted, the Series D Preferred Stockholders shall have the right to designate four (4) persons for election to the Board; and (iii) so long as N&P continues to hold shares of Common Stock representing at least twenty-five percent (25%) of the Fully Diluted Capital Stock, N&P shall have the right to designate the remainder of the directors. There shall be no cumulative voting with respect to the above-referenced designation(s). Notwithstanding the above, the Convertible Noteholders party to this Agreement voting together as a class shall have the right to designate a total of two (2) persons as non-voting observers to the Board; provided, however, that for so long as Falcon is a Convertible Noteholder or a Series E Preferred Stockholder, Falcon shall be entitled to designate one such non-voting observer and for so long as Prudential is a Convertible Noteholder or a Series E Preferred Stockholder, Prudential shall be entitled to designate one such non-voting observer. Each committee of the Board shall have one representative designated by the holders of a majority of the outstanding Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock.

Right to Designate. (i) So long as (x) the Series B Preferred Stockholders a party to this Agreement on the date hereof, hereof collectively with their Permitted Transferees that are Affiliates thereof, continue to hold shares of Series B A Preferred Stock and Common Stock representing in the aggregate at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series B A Preferred Stock are convertible or have been converted, or (y) the Series C Preferred Stockholders party to this Agreement hold shares of Series C Preferred Stock and Common Stock representing at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series C Preferred Stock are convertible or have been convertedconvertible, the Series B and C Preferred Stockholders shall collectively have the right to designate one (1) person for election to the Board; (ii) so long as the Series D Preferred Stockholders party to this Agreement on the date hereof, collectively with their Permitted Transferees that are Affiliates thereof, continue to hold shares of Series D Preferred Stock and Common Stock representing in the aggregate at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series D Preferred Stock are convertible or have been converted, the Series D Preferred Stockholders shall have the right to designate four two (42) persons for election to the Board; and (iiiii) so long as N&P continues to hold shares of the Common Stock representing at least twenty-five percent (25%) of the Fully Diluted Capital Stock, N&P Stockholders shall have the right to designate nominate the remainder of the directors; provided, however, that so long as Falcon Mezzanine Partners, L.P. or its Affiliates ("Falcon") is a Preferred Stockholder and the Preferred Stockholders maintain their rights under this Section 5.2, Falcon shall have the right, on behalf of the Preferred Stockholders, to designate one (1) of such two (2) Board seats provided to the Preferred Stockholders under this Section 5.2., and for so long as Prudential Capital Partners, L.P. and/or Prudential Capital Partners Management Fund, L.P. or their Affiliates (collectively, "Prudential") are Preferred Stockholders and the Preferred Stockholders maintain their rights under this Section 5.2, Prudential have the right, on behalf of the Preferred Stockholders, to designate one (1) of such two (2) Board seats provided to the Preferred Stockholders under this Section 5.2. Falcon's initial designee to the Board, on behalf of the Preferred Stockholders, shall be S▇▇▇▇▇▇ ▇▇▇▇; and Prudential's initial designee to the Board, on behalf of the Preferred Stockholders, shall be J▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. If at any time Falcon or Prudential shall not have such right to designate a Director, Preferred Stockholders voting on an as-converted basis shall have the right by majority vote to designate such Director(s). There shall be no cumulative voting with respect to the above-referenced such designation(s). Notwithstanding the above, the Convertible Noteholders party to this Agreement voting together as a class shall have the right to designate a total of two (2) persons as non-voting observers to the Board; provided, however, that for so long as Falcon is a Convertible Noteholder or a Series E Preferred Stockholder, Falcon shall be entitled to designate one such non-voting observer and for so long as Prudential is a Convertible Noteholder or a Series E Preferred Stockholder, Prudential shall be entitled to designate one such non-voting observer. Each committee of the Board shall have one representative designated by the holders of a majority of the outstanding Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock.

Right to Designate. (i) So long as (x) the Series B Preferred Stockholders party to this Agreement on the date hereof, collectively with their Permitted Transferees that are Affiliates thereof, hold shares of Series B Preferred Stock and Common Stock representing in the aggregate at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series B Preferred Stock are convertible or have been converted, or (y) the Series C Preferred Stockholders party to this Agreement hold shares of Series C Preferred Stock and Common Stock representing at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series C Preferred Stock are convertible or have been converted, the Series B and C Preferred Stockholders shall collectively have the right to designate one (1) person for election to the Board; (ii) so long as the Series D Preferred Stockholders party to this Agreement on the date hereof, collectively with their Permitted Transferees that are Affiliates thereof, continue to hold shares of Series D Preferred Stock and Common Stock representing in the aggregate at least twenty-five percent (25%) of the shares of Common Stock into which the shares of Series D Preferred Stock are convertible or have been converted, the Series D Preferred Stockholders shall have the right to designate four (4) persons for election to the Board; and (iii) so long as N&P continues to hold shares of Common Stock representing at least twenty-five percent (25%) of the Fully Diluted Capital Stock, N&P shall have the right to designate the remainder of the directors. There shall be no cumulative voting with respect to the above-referenced designation(s). Notwithstanding the above, the Convertible Noteholders party to this Agreement voting together as a class shall have the right to designate a total of two (2) persons as non-voting observers to the Board; provided, however, that for so long as Falcon is a Convertible Noteholder or a Series E Preferred Stockholder, Falcon shall be entitled to designate one such non-voting observer and for so long as Prudential is a Convertible Noteholder or a Series E Preferred Stockholder, Prudential shall be entitled to designate one such non-voting observer. Each committee of the Board shall have one representative designated by the holders of a majority of the outstanding Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock.. 5.3