Exchange of Preferred Stock. (a) Effective immediately, each Holder hereby irrevocably agrees to exchange all the Series F Shares held by such Holder for: (i) the number of Series G Shares having an aggregate Series G Original Issue Price equal to the sum of the aggregate Series F Original Issue Price of the Series F Shares so exchanged, plus the aggregate amount of all accrued unpaid dividends on such Series F Shares (such sum, the "Aggregate Face Amount Exchanged"); plus (ii) a number of Common Shares equal to the Aggregate Face Amount Exchanged divided by $1.00. (b) The table attached to this Agreement as Schedule I sets forth the number of Series F Shares held of record and beneficially by each Holder, the aggregate accrued unpaid dividends thereon, and the number of Series G Shares and Common Shares to be issued by the Company to the Holder in exchange therefor. The Company and each Holder acknowledge and agree that Schedule I is correct and shall be binding against the Company and each Holder absent manifest error. (c) each Holder shall be entitled to receive new certificates, representing in the aggregate the Series G Shares and Common Shares issued to such Holder pursuant to this Agreement. From and after the execution and delivery of this Agreement, certificates formerly representing Series F Shares shall represent only the right to receive such new certificates as provided in this Agreement. (d) The Series G Shares and Common Shares issued to the Holders in exchange for Series F Shares pursuant to this Agreement will not be registered under the Securities Act of 1933, as amended, in accordance with one or more exemptions from registration available under such act and the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Certificates representing the Series G Shares and the Common Shares will bear a restrictive legend substantially to the following effect: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS, NOR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THEY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THOSE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION THEREFROM." (e) The Company hereby represents and warrants to each Holder that the Series G Shares and Common Shares issued to such Holder hereunder are duly authorized, validly issued, fully paid and non-assessable. Each of the parties to this Agreement hereby represents and warrants to each other party that this Agreement has been duly authorized, executed and delivered by such party and constitutes the legal, valid and binding agreement of such party, enforceable in accordance with its terms.
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Exchange of Preferred Stock. At or prior to the Recapitalization Closing and subject to Section 5.17, the Preferred Stockholders and the Preferred Warrantholders will surrender to the Company all shares of Preferred Stock (aincluding those issued pursuant to Section 1.3 upon exercise of the Preferred Stock Warrants and all accrued but unpaid dividends thereon) Effective immediatelyand all accrued but unpaid dividends thereon that are not tendered to the Company as consideration for the exercise of the Common Stock Warrants pursuant to Section 1.4 of this Agreement in exchange for (subject to consummation of the IPO) a number of shares of Common Stock equal to the quotient of (x) $1,000 per each such share of Preferred Stock plus all accrued but unpaid dividends on each such share as of the date immediately preceding the Recapitalization Closing divided by (y) the IPO Price, each Holder hereby irrevocably agrees it being acknowledged and agreed that the Preferred Stockholders and the Preferred Warrantholders will surrender to the Company all shares of Preferred Stock (including those issued pursuant to Section 1.3 upon exercise of the Preferred Stock Warrants and all accrued but unpaid dividends thereon) held by the Preferred Stockholders and the Preferred Warrantholders pursuant to this Section 1.5 if the Common Stock Warrants are cancelled pursuant to Section 1.4 of this Agreement. Notwithstanding the foregoing, if the valuation of the Company determined in connection with the IPO is insufficient to exchange all the Series F Shares held by such Holder for:
shares of Preferred Stock (i) the number of Series G Shares having an aggregate Series G Original Issue Price equal including those issued pursuant to the sum Section 1.3 upon exercise of the aggregate Series F Original Issue Price of the Series F Shares so exchanged, plus the aggregate amount of Preferred Stock Warrants and all accrued but unpaid dividends thereon) and all accrued unpaid dividends on thereon surrendered pursuant to this Section 1.5 at the ratio set forth in this Section 1.5, then such Series F Shares ratio will be appropriately adjusted, temporarily at the time of the printing of the Preliminary Prospectus and finally at the time of pricing of the IPO (such sumin each case, subject to Section 5.17), by increasing the "Aggregate Face Amount Exchanged"); plus
IPO Price (ii) a but only by the amount necessary to permit the issuance of the maximum number of shares of Common Shares equal to the Aggregate Face Amount Exchanged divided by $1.00.
(b) The table attached Stock pursuant to this Agreement as Schedule I sets forth Section 1.5) for purposes of calculating the number of Series F Shares held shares of record Common Stock issuable pursuant to this Section 1.5; provided, however, that if the Exchange Price is adjusted pursuant to Section 1.2(b), then no shares of Common Stock shall be issued pursuant to this Section 1.5 and beneficially by each Holder, the aggregate all shares of Preferred Stock and all accrued but unpaid dividends thereon, and the number of Series G Shares and Common Shares to thereon will be issued by the Company cancelled with no consideration therefor. Any temporary or final adjustment to the Holder in exchange therefor. The Company and each Holder acknowledge and agree that Schedule I is correct and IPO Price pursuant to the preceding sentence (other than the proviso thereto) shall be binding against approved by mutual agreement of the Company and each Holder absent manifest error.
the holders of a majority of the outstanding shares of Preferred Stock (c) each Holder shall be entitled to receive new certificates, representing in the aggregate the Series G Shares and Common Shares including shares issued to such Holder pursuant to this AgreementSection 1.3 upon exercise of the Preferred Stock Warrants). From and As soon as practicable after the execution and delivery of this Agreement, certificates formerly representing Series F Shares the Company will deliver to each record holder of shares of Preferred Stock a letter of transmittal and instructions for effecting the surrender of such shares of Preferred Stock. Notwithstanding anything to the contrary in the Certificate of Designations, dividends will cease to accrue on the Preferred Stock as of the date immediately preceding the Recapitalization Closing. Each Preferred Stockholder hereby consents to the consummation of the IPO and the transactions contemplated by the Merger, the Recapitalization and the other transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Section 1.5, the rights of the Company and the holders of a majority of the outstanding shares of Preferred Stock to reach a mutual agreement regarding the exchange of the Preferred Stock pursuant to this Section 1.5 shall represent only not be deemed to permit the right to receive amendment by such new certificates as provided in Parties of any other express provisions of this Agreement.”
(d4. The reference in Section 5.1(a)(iv) The Series G Shares and Common Shares issued to the Holders in exchange for Series F Shares pursuant to this Agreement will not be registered under the Securities Act of 1933, as amended, in accordance with one or more exemptions from registration available under such act and the rules and regulations of the Securities and Exchange Commission promulgated thereunderAgreement to “January 31, 2007” is hereby changed to “June 30, 2007.”
5. Certificates representing the Series G Shares and the Common Shares will bear a restrictive legend substantially to the following effect: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS, NOR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THEY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THOSE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION THEREFROM."
(e) The Company hereby represents and warrants to each Holder that the Series G Shares and Common Shares issued to such Holder hereunder are duly authorized, validly issued, fully paid and non-assessable. Each Section 5.17 of the parties to this Agreement is hereby represents amended and warrants to each other party that this Agreement has been duly authorized, executed and delivered by such party and constitutes the legal, valid and binding agreement of such party, enforceable restated in accordance with its terms.entirety as follows:
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Exchange of Preferred Stock. (a) Effective immediately, each Holder hereby irrevocably agrees to exchange all the Series F Shares held by such Holder for:
(i) the number of Series G Shares having an aggregate Series G Original Issue Price equal At or prior to the sum Recapitalization Closing and subject to Section 5.17, the Preferred Stockholders and the Preferred Warrantholders will surrender to the Company all shares of Preferred Stock (including those issued pursuant to Section 1.3 upon exercise of the aggregate Series F Original Issue Price Preferred Stock Warrants and all accrued but unpaid dividends thereon) and all accrued but unpaid dividends thereon that are not tendered to the Company as consideration for the exercise of the Series F Shares so exchanged, plus Common Stock Warrants pursuant to Section 1.4 of this Agreement in exchange for (subject to consummation of the aggregate amount of all accrued unpaid dividends on such Series F Shares (such sum, the "Aggregate Face Amount Exchanged"); plus
(iiIPO) a number of shares of Common Shares Stock equal to the Aggregate Face Amount Exchanged quotient of (x) $1,000 per each such share of Preferred Stock plus all accrued but unpaid dividends on each such share as of the date immediately preceding the Recapitalization Closing divided by $1.00.
(by) The table attached the IPO Price, it being acknowledged and agreed that the Preferred Stockholders and the Preferred Warrantholders will surrender to the Company all shares of Preferred Stock (including those issued pursuant to Section 1.3 upon exercise of the Preferred Stock Warrants and all accrued but unpaid dividends thereon) held by the Preferred Stockholders and the Preferred Warrantholders pursuant to this Agreement Section 1.5 if the Common Stock Warrants are cancelled pursuant to Section 1.4 of this Agreement. Notwithstanding the foregoing, if the valuation of the Company determined in connection with the IPO is insufficient to exchange all shares of Preferred Stock (including those issued pursuant to Section 1.3 upon exercise of the Preferred Stock Warrants and all accrued but unpaid dividends thereon) and all accrued but unpaid dividends thereon surrendered pursuant to this Section 1.5 at the ratio set forth in this Section 1.5, then such ratio will be appropriately adjusted (subject to Section 5.17) by increasing the IPO Price (but only by the amount necessary to permit the issuance of the maximum number of shares of Common Stock pursuant to this Section 1.5 as Schedule I sets forth determined by mutual agreement of the Company and the holders of a majority of the outstanding shares of Preferred Stock (including shares issued pursuant to Section 1.3 upon exercise of the Preferred Stock Warrants) no later than the time of printing of the Preliminary Prospectus) for purposes of calculating the number of Series F Shares held shares of record and beneficially by each Holder, the aggregate accrued unpaid dividends thereon, and the number of Series G Shares and Common Shares to be issued by the Company to the Holder in exchange therefor. The Company and each Holder acknowledge and agree that Schedule I is correct and shall be binding against the Company and each Holder absent manifest error.
(c) each Holder shall be entitled to receive new certificates, representing in the aggregate the Series G Shares and Common Shares issued to such Holder Stock issuable pursuant to this AgreementSection 1.5. From and As soon as practicable after the execution and delivery of this Agreement, certificates formerly representing Series F Shares the Company will deliver to each record holder of shares of Preferred Stock a letter of transmittal and instructions for effecting the surrender of such shares of Preferred Stock. Notwithstanding anything to the contrary in the Certificate of Designations, dividends will cease to accrue on the Preferred Stock as of the date immediately preceding the Recapitalization Closing. Each Preferred Stockholder hereby consents to the consummation of the IPO and the transactions contemplated by the Merger, the Recapitalization and the other transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Section 1.5, the rights of the Company and the holders of a majority of the outstanding shares of Preferred Stock to reach a mutual agreement regarding the exchange of the Preferred Stock pursuant to this Section 1.5 shall represent only not be deemed to permit the right to receive amendment by such new certificates as provided in Parties of any other express provisions of this Agreement.
(d) The Series G Shares and Common Shares issued to the Holders in exchange for Series F Shares pursuant to this Agreement will not be registered under the Securities Act of 1933, as amended, in accordance with one or more exemptions from registration available under such act and the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Certificates representing the Series G Shares and the Common Shares will bear a restrictive legend substantially to the following effect: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS, NOR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THEY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THOSE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION THEREFROM."
(e) The Company hereby represents and warrants to each Holder that the Series G Shares and Common Shares issued to such Holder hereunder are duly authorized, validly issued, fully paid and non-assessable. Each of the parties to this Agreement hereby represents and warrants to each other party that this Agreement has been duly authorized, executed and delivered by such party and constitutes the legal, valid and binding agreement of such party, enforceable in accordance with its terms.
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