Preferred Stock and Warrants. (a) As promptly as practicable, the Company shall file with the Secretary of State of the State of Delaware a Certificate of Designations of Series D Convertible Preferred Stock of the Company in the form attached hereto as Annex B. (b) As promptly as practicable, Royal Ahold and the Company shall exchange the 726,371 shares of Series C Preferred Stock held by Royal Ahold for 726,371 shares of Series D Convertible Preferred Stock of the Company by (i) the Company issuing and delivering to Royal Ahold certificates representing an aggregate of 726,371 shares of Series D Convertible Preferred Stock in definitive form and registered in the name of Royal Ahold, and (ii) Royal Ahold delivering to the Company certificates representing 726,371 shares of the Series C Preferred Stock and duly executed stock powers in favor of the Company in respect of such certificates. The parties hereto hereby acknowledge and agree that as of the time of such exchange, dividends had accrued and become payable with respect to the Series C Preferred Stock. The Company hereby agrees that, subject to the letter agreement dated March 30, 2001 between Royal Ahold and the Company, such dividends are due and owing to Royal Ahold and shall be accumulated, compounded and paid in accordance with the terms of the Series C Certificate of Designations. (c) Each share of Series D Convertible Preferred Stock of the Company outstanding immediately prior to the Effective Time shall remain outstanding as Series D Convertible Preferred Stock of the Surviving Corporation with the same rights, powers and privilege as immediately prior to the Effective Time. (d) As promptly as practicable, (a) Royal Ahold and its Subsidiaries shall exercise a sufficient number of Warrants, at the initial exercise price thereof, to result in Royal Ahold and its Subsidiaries owning at least 90% of the outstanding shares of Common Stock, and (b) Royal Ahold and its Subsidiaries shall transfer all shares of Common Stock owned thereby to Purchaser in order to effectuate the Merger pursuant to Section 253 of the Delaware Law. Upon the exercise of Warrants by Royal Ahold or any of its Subsidiaries, the Company shall issue and deliver shares of Common Stock to Royal Ahold or such Subsidiary in accordance with the terms of the warrant agreement pursuant to which such Warrants were granted." (c) The Merger Agreement is hereby amended by inserting the Form of Certificate of Designations of Series D Convertible Preferred Stock of the Company, attached hereto as Annex A, as Annex B to the Merger Agreement. (d) Except as amended hereby, the Merger Agreement remains unchanged and in full force and effect.
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Preferred Stock and Warrants. (a) As promptly as practicableThe Preferred Shares, the Preferred Stock Warrants and the Common Stock Warrants to be issued and sold by the Company shall file with to the Secretary Underwriter hereunder have each been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid, nonassessable and free of State any preemptive or other similar rights, and will conform to the descriptions thereof in the Registration Statement, the General Disclosure Package and the Prospectus; and the issuance of the State of Delaware a Certificate of Designations of Series D Convertible Preferred Shares, the Preferred Stock of the Company in the form attached hereto as Annex B.
(b) As promptly as practicable, Royal Ahold Warrants and the Company shall exchange the 726,371 shares of Series C Preferred Common Stock held by Royal Ahold for 726,371 shares of Series D Convertible Preferred Stock of the Company by (i) the Company issuing and delivering Warrants is not subject to Royal Ahold certificates representing an aggregate of 726,371 shares of Series D Convertible Preferred Stock in definitive form and registered in the name of Royal Ahold, and (ii) Royal Ahold delivering to the Company certificates representing 726,371 shares of the Series C Preferred Stock and duly executed stock powers in favor of the Company in respect of such certificatesany preemptive or similar rights. The parties hereto hereby acknowledge Conversion Shares underlying the Preferred Shares to be issued at the Time of Purchase have been duly and agree that as of the time of such exchange, dividends had accrued validly authorized and become payable with respect reserved for issuance pursuant to the Series C Preferred Stock. The Company hereby agrees that, subject to the letter agreement dated March 30, 2001 between Royal Ahold and the Company, such dividends are due and owing to Royal Ahold and shall be accumulated, compounded and paid in accordance with the terms of the Series C Certificate of Designations.
(c) Each share of Series D A Convertible Preferred Stock (assuming, with respect to reservation for issuance, that the conversion of the Preferred Shares occurs based on the trading price of the Common Stock reported on the Principal Market at the Time of Purchase) and, when issued by the Company outstanding immediately prior upon valid conversion of the Series A Convertible Preferred Stock, will be duly and validly issued, fully paid, nonassessable and free of any preemptive or other similar rights, and will conform to the Effective Time shall remain outstanding as Series D Convertible descriptions thereof in the Registration Statement, the General Disclosure Package and the Prospectus, and the issuance of the Conversion Shares upon such conversion is not and will not be subject to any preemptive or similar rights. The Preferred Stock of the Surviving Corporation with the same rights, powers and privilege as immediately prior to the Effective Time.
(d) As promptly as practicable, (a) Royal Ahold and its Subsidiaries shall exercise a sufficient number of Warrants, at the initial exercise price thereof, to result in Royal Ahold and its Subsidiaries owning at least 90% of the outstanding shares of Common Stock, and (b) Royal Ahold and its Subsidiaries shall transfer all shares of Common Stock owned thereby to Purchaser in order to effectuate the Merger pursuant to Section 253 of the Delaware Law. Upon the exercise of Warrants have been duly authorized by Royal Ahold or any of its Subsidiaries, the Company shall issue and, when executed and deliver shares of Common Stock to Royal Ahold or such Subsidiary in accordance with delivered by the terms of the warrant agreement pursuant to which such Warrants were granted."
(c) The Merger Agreement is hereby amended by inserting the Form of Certificate of Designations of Series D Convertible Preferred Stock Company, will be valid and binding agreements of the Company, attached hereto enforceable against the Company in accordance with their terms, except as Annex Athe enforcement thereof may be limited by bankruptcy, as Annex B insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles; the PSW Shares underlying the Preferred Stock Warrants to be issued on the Closing Date have been duly authorized and validly reserved for issuance upon exercise of the Preferred Stock Warrants; the PSW Shares, when issued and delivered upon exercise of the Preferred Stock Warrants in accordance therewith, will be duly and validly issued, fully paid, nonassessable and free of any preemptive or other similar rights, and will conform to the Merger Agreement.
(d) Except as amended herebydescriptions thereof in the Registration Statement, the Merger Agreement remains unchanged General Disclosure Package and the Prospectus; and the issuance of the PSW Shares upon such exercise is not and will not be subject to any preemptive or similar rights. The Common Stock Warrants have been duly authorized by the Company and, when executed and delivered by the Company, will be valid and binding agreements of the Company, enforceable against the Company in full force accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and effectremedies of creditors or by general equitable principles; the CSW Shares underlying the Common Stock Warrants to be issued on the Closing Date have been duly authorized and validly reserved for issuance upon exercise of the Common Stock Warrants (assuming, with respect to reservation for issuance, that the exercise of the Common Stock Warrants occurs based on the trading price of the Common Stock reported on the Principal Market at the Time of Purchase); the CSW Shares, when issued and delivered upon exercise of the Common Stock Warrants in accordance therewith, will be duly and validly issued, fully paid, nonassessable and free of any preemptive or other similar rights, and will conform to the descriptions thereof in the Registration Statement, the General Disclosure Package and the Prospectus; and the issuance of the CSW Shares upon such exercise is not and will not be subject to any preemptive or similar rights.
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