Common use of Company Preferred Stock Clause in Contracts

Company Preferred Stock. Subject to the other provisions of this Section 2.1, each share of preferred stock, par value $.01 per share, of the Company ("Preferred Stock"), issued and outstanding immediately prior to the Effective Time (excluding any shares described in Sections 2.1(c) and (d)), shall be converted into the right to receive the number of fully paid and nonassessable Acquiror Shares equal to the Exchange Ratio multiplied by the number of shares of Common Stock into which such share of Preferred Stock was convertible immediately prior to the Effective Time. The Company's Series A 8% Cumulative Redeemable Preferred Stock ("Series A Preferred Stock"), Series B 8% Cumulative Redeemable Preferred Stock ("Series B Preferred Stock") and Series C 6% Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), shall be referred to herein collectively as the "Preferred Stock." The Exchange Ratio multiplied by the number of Acquiror Shares into which a share of each series of the Company's Preferred Stock shall be converted in the Merger shall be referred to herein collectively as the "Per Share Amounts" and individually as a "Per Share Amount." The Common Stock and Preferred Stock shall be referred to herein collectively as the "Capital Stock." All such shares of Preferred Stock shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate previously evidencing any such shares shall thereafter represent only the right to receive the Merger Consideration as described below. The holders of certificates previously evidencing such shares of Preferred Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Preferred Stock, except as otherwise provided herein or by law. Each such certificate previously evidencing such shares of Preferred Stock shall be exchanged for the applicable Per Share Amount multiplied by the number of shares previously evidenced by the canceled certificate upon the surrender of such certificate in accordance with the provisions of Section 2.3, without interest.

Company Preferred Stock. Subject to the other provisions All shares of this Section 2.1, each share of preferred stock, par value $.01 per share, of the Company ("Preferred Stock"), Stock issued and outstanding immediately prior to the Effective Time (excluding any shares described in Sections 2.1(c) and (d)), shall automatically be converted into the right to receive (A) cash in the number aggregate amount of fully Three Hundred Thousand Dollars ($300,000.00) (the“Preferred Cash Consideration”), to be paid in accordance with Section 2.2 hereof; and nonassessable Acquiror Shares (B) Parent Common Stock in an amount equal to the Exchange Ratio Preferred Stock Percentage multiplied by the number Common Stock Consideration, as adjusted pursuant to this Agreement, and any accrued and unpaid dividends payable thereon shall be deemed satisfied and paid; provided, however, that no fractional share of Parent Common Stock will be issued in the Merger, but in lieu thereof, each holder of shares of Company Preferred Stock who would otherwise be entitled to a fraction of a share of Parent Common Stock into which (after aggregating all fractional shares of Parent Common Stock to be received by such holder) shall be entitled to receive from Parent such holder’s portion of the Fractional Share Amount (in the aggregate, all such amounts being less than or equal to the Fractional Share Cap). If the aggregate payments in lieu of fractional shares would otherwise exceed the Fractional Share Cap, the amount paid for each fractional share shall be reduced ratably such that the Fractional Share Cap is not exceeded. As of the Effective Time, all shares of Company Preferred Stock was convertible issued and outstanding immediately prior to the Effective Time. The Company's Series A 8% Cumulative Redeemable Preferred Stock ("Series A Preferred Stock"), Series B 8% Cumulative Redeemable Preferred Stock ("Series B Preferred Stock") and Series C 6% Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), Time shall be referred to herein collectively as the "Preferred Stock." The Exchange Ratio multiplied by the number of Acquiror Shares into which a share of each series of the Company's Preferred Stock shall be converted in the Merger shall be referred to herein collectively as the "Per Share Amounts" and individually as a "Per Share Amount." The Common Stock and Preferred Stock shall be referred to herein collectively as the "Capital Stock." All such shares of Preferred Stock shall cease to no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate previously evidencing holder of a Certificate or Book-Entry Shares representing any such shares shall thereafter represent only the right to receive the Merger Consideration as described below. The holders of certificates previously evidencing such shares of Company Preferred Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Preferred Stockshares, except as otherwise provided herein or by law. Each such certificate previously evidencing such shares of Preferred except, in all cases, the right to receive the Common Stock shall be exchanged for the applicable Per Consideration and Fractional Share Amount multiplied by the number of shares previously evidenced by the canceled certificate Consideration (if applicable), without interest, upon the surrender of such certificate Certificate or Book-Entry Shares in accordance with the provisions of Section 2.3, without interest. The right of any holder of any share of Company Preferred Stock to receive the Common Stock Consideration or Fractional Share Consideration (if applicable) shall be subject to and reduced by the amount of any withholding that is required under applicable Law relating to Taxes.

Company Preferred Stock. Subject to the other provisions of this Section 2.1, each Each share of preferred stockthe Company’s Series A Convertible Preferred Stock, par value $.01 .001 per share, of share (the Company ("“Series A Convertible Preferred Stock"”), the Company’s Series C Convertible Preferred Stock, par value $.001 per share (the “Series C Convertible Preferred Stock,” and the Company’s Series D Convertible Preferred Stock, par value $.001 per share (the “Series D Convertible Preferred Stock, and together with the Series A Convertible Preferred Stock and the Series C Convertible Preferred Stock, the “Convertible Preferred Stock”), issued and outstanding immediately prior to the Effective Time (excluding any other than shares described to be cancelled in Sections 2.1(caccordance with Section 2.1(b) and (d)any Dissenting Shares) will be converted into, subject to this Article II and the last sentence of Section 3.2(c), shall be converted into the right to receive the (i) subject to Section 2.10, that number of fully paid and nonassessable Acquiror Shares shares of Buyer Stock equal to the Exchange Ratio product of (A) the Common Stock Merger Consideration per Share multiplied by (B) the total number of shares of Common Stock (including fractional shares) into which such share of Convertible Preferred Stock was convertible immediately prior to is, as of the Effective Time. The , convertible pursuant to the terms of the Company's Series A 8% Cumulative Redeemable ’s Certificate of Incorporation (as defined in Section 4.1(a)) (as applicable to such share of Convertible Preferred Stock, the “Conversion Ratio”) (the product of (A) the Common Stock Merger Consideration per Share multiplied by (B) the applicable Conversion Ratio is hereinafter sometimes referred to as the “Preferred Stock ("Series A Merger Consideration per Share” of such shares of Convertible Preferred Stock") and (ii) a contingent right to receive (x) in the event that the Final Closing Adjustment is a positive amount as provided in Section 2.5(d), Series B 8% Cumulative Redeemable Preferred Stock ("Series B Preferred Stock"A) and Series C 6% Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), shall the portion of such Final Closing Adjustment to be referred to herein collectively as the "Preferred Stock." The Exchange Ratio multiplied by the number delivered in respect of Acquiror Shares into which a share of Common Stock multiplied by (B) the applicable Conversion Ratio, in the form and at the time determined pursuant to Section 2.5(d), (y) each series time, if any, there is a release and distribution to the Stockholders of Escrow Shares and Escrow Cash from the Escrow Funds, (A) the portion of such Escrow Shares and Escrow Cash to be delivered in respect of a share of Common Stock multiplied by (B) the applicable Conversion Ratio, in the form and at the times determined pursuant to the Escrow Agreement, and (z) in the event that there is a release and distribution of any amount held in the Stockholders’ Representative Expense Fund, (A) the portion of such distribution allocated in respect of a share of Common Stock multiplied by (B) the applicable Conversion Ratio. As of the Company's Effective Time, all such shares of Convertible Preferred Stock shall be converted in the Merger shall be referred to herein collectively as the "Per Share Amounts" and individually as a "Per Share Amount." The Common Stock and Preferred Stock shall be referred to herein collectively as the "Capital Stock." All such shares of Preferred Stock shall cease to no longer be outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder of a stock certificate previously evidencing any such shares shall thereafter represent only the right to receive the Merger Consideration as described below. The holders of certificates previously evidencing such shares of Preferred Stock outstanding which immediately prior to the Effective Time represented any such shares of Convertible Preferred Stock (a “Convertible Preferred Stock Certificate”) shall cease to have any rights with respect to such shares of Preferred Stockthereto, except as otherwise provided herein or by law. Each such certificate previously evidencing such shares of Preferred Stock shall be exchanged for the applicable Per Share Amount multiplied by the number of shares previously evidenced by the canceled certificate right to receive, upon the surrender of such certificate Convertible Preferred Stock Certificate or the delivery of an affidavit of loss in accordance with the provisions of Section 2.3, without interest.lieu thereof as described in

Company Preferred Stock. Subject to the other provisions of this Section 2.1, each Each share of preferred stockthe Company's Series A Preferred Stock, par value $.01 per share, of share (the Company ("Preferred StockSERIES A PREFERRED STOCK"), the Company's Series B Preferred Stock, par value $.01 per share (the "SERIES B PREFERRED STOCK") and the Company's Series C Preferred Stock, par value $.01 per share (the "SERIES C PREFERRED STOCK", and together with the Series A Preferred Stock and the Series B Preferred Stock, the "PREFERRED STOCK") issued and outstanding immediately prior to the Effective Time (excluding any other than shares described to be cancelled in Sections 2.1(caccordance with Section 1.8(b) and any Dissenting Shares (das defined in Section 1.11))) will, shall by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the number of fully paid $8.00 per share plus all accumulated and nonassessable Acquiror Shares equal to the Exchange Ratio multiplied by the number of shares of Common Stock into which unpaid dividends on such share in cash (the "PREFERRED STOCK MERGER CONSIDERATION PER SHARE") without any interest thereon. As of Preferred Stock was convertible immediately prior to the Effective Time. The Company's Series A 8% Cumulative Redeemable Preferred Stock ("Series A Preferred Stock"), Series B 8% Cumulative Redeemable Preferred Stock ("Series B Preferred Stock") and Series C 6% Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), shall be referred to herein collectively as the "Preferred Stock." The Exchange Ratio multiplied by the number of Acquiror Shares into which a share of each series of the Company's Preferred Stock shall be converted in the Merger shall be referred to herein collectively as the "Per Share Amounts" and individually as a "Per Share Amount." The Common Stock and Preferred Stock shall be referred to herein collectively as the "Capital Stock." All all such shares of Preferred Stock shall cease to no longer be outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder of a stock certificate previously evidencing any such shares shall thereafter represent only the right to receive the Merger Consideration as described below. The holders of certificates previously evidencing such shares of Preferred Stock outstanding which immediately prior to the Effective Time represented any such shares of Preferred Stock (a "PREFERRED STOCK CERTIFICATE" and, together with a Common Stock Certificate, a "CERTIFICATE") shall cease to have any rights with respect to such shares of Preferred Stockthereto, except as otherwise provided herein or by law. Each such certificate previously evidencing such shares of Preferred Stock shall be exchanged for the applicable Per Share Amount multiplied by the number of shares previously evidenced by the canceled certificate right to receive, upon the surrender of such certificate Preferred Stock Certificate as provided in accordance with Section 1.10, the provisions of Section 2.3, without interestPreferred Stock Merger Consideration per Share.

Company Preferred Stock. Subject to the other provisions All shares of this Section 2.1, each share of preferred stock, par value $.01 per share, of the Company ("Preferred Stock"), Stock issued and outstanding immediately prior to the Effective Time (excluding any shares described in Sections 2.1(c) and (d)), shall automatically be converted into the right to receive (A) cash in the number aggregate amount of fully Three Hundred Thousand Dollars ($300,000.00) (the “Preferred Cash Consideration”), to be paid in accordance with Section 2.2 hereof; and nonassessable Acquiror Shares (B) Parent Common Stock in an amount equal to the Exchange Ratio Preferred Stock Percentage multiplied by the number Common Stock Consideration, as adjusted pursuant to this Agreement, and any accrued and unpaid dividends payable thereon shall be deemed satisfied and paid; provided, however, that no fractional share of Parent Common Stock will be issued in the Merger, but in lieu thereof, each holder of shares of Company Preferred Stock who would otherwise be entitled to a fraction of a share of Parent Common Stock into which (after aggregating all fractional shares of Parent Common Stock to be received by such holder) shall be entitled to receive from Parent such holder’s portion of the Fractional Share Amount (in the aggregate, all such amounts being less than or equal to the Fractional Share Cap). If the aggregate payments in lieu of fractional shares would otherwise exceed the Fractional Share Cap, the amount paid for each fractional share shall be reduced ratably such that the Fractional Share Cap is not exceeded. As of the Effective Time, all shares of Company Preferred Stock was convertible issued and outstanding immediately prior to the Effective Time. The Company's Series A 8% Cumulative Redeemable Preferred Stock ("Series A Preferred Stock"), Series B 8% Cumulative Redeemable Preferred Stock ("Series B Preferred Stock") and Series C 6% Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), Time shall be referred to herein collectively as the "Preferred Stock." The Exchange Ratio multiplied by the number of Acquiror Shares into which a share of each series of the Company's Preferred Stock shall be converted in the Merger shall be referred to herein collectively as the "Per Share Amounts" and individually as a "Per Share Amount." The Common Stock and Preferred Stock shall be referred to herein collectively as the "Capital Stock." All such shares of Preferred Stock shall cease to no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate previously evidencing holder of a Certificate or Book-Entry Shares representing any such shares shall thereafter represent only the right to receive the Merger Consideration as described below. The holders of certificates previously evidencing such shares of Company Preferred Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Preferred Stockshares, except as otherwise provided herein or by law. Each such certificate previously evidencing such shares of Preferred except, in all cases, the right to receive the Common Stock shall be exchanged for the applicable Per Consideration and Fractional Share Amount multiplied by the number of shares previously evidenced by the canceled certificate Consideration (if applicable), without interest, upon the surrender of such certificate Certificate or Book-Entry Shares in accordance with the provisions of Section 2.3, without interest. The right of any holder of any share of Company Preferred Stock to receive the Common Stock Consideration or Fractional Share Consideration (if applicable) shall be subject to and reduced by the amount of any withholding that is required under applicable Law relating to Taxes.

Company Preferred Stock. Subject to the other provisions terms of this Agreement, including Section 2.12.1(e) (“Adjustments”), each share and other than shares to be cancelled and extinguished in accordance with Section 2.1(c) (“Company Treasury Stock and Company-Owned and Parent-Owned Stock”), and other than Dissenting Shares (as defined below), all shares of preferred stock(i) Series B Convertible Preferred Stock, par value $.01 0.001 per share, of the Company ("Preferred Stock"), the “Series B Shares”) that are issued and outstanding as of immediately prior to the Effective Time shall be automatically cancelled, shall no longer be considered outstanding and shall be converted into the right to receive 100% of the Series B Shares liquidation preference of $20.00 per share, payable in cash, without interest and subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e) (excluding any shares described in Sections 2.1(c“Withholding Rights”) and (d)the “Series B Share Merger Consideration”), (ii) Series C Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series C Shares”) that are issued and outstanding as of immediately prior to the Effective Time shall be automatically cancelled, shall no longer be considered outstanding and shall be converted into the right to receive 100% of the Series C Shares liquidation preference of $20.00 per share, payable in cash, without interest and subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e) (“Withholding Rights”) (the “Series C Share Merger Consideration”), (iii) Series D Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series D Shares”) that are issued and outstanding as of immediately prior to the Effective Time shall be automatically cancelled, shall no longer be considered outstanding and shall be converted into the right to receive 100% of the Series D Shares liquidation preference of $20.00 per share, payable in cash, without interest and subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e) (“Withholding Rights”) (the “Series D Share Merger Consideration”), (iv) Series E Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series E Shares”) that are issued and outstanding as of immediately prior to the Effective Time shall be automatically cancelled, shall no longer be considered outstanding and shall be converted into the right to receive the number greater of fully paid (A) 100% of the Series E Shares liquidation preference of $3.75 per share and nonassessable Acquiror Shares equal (B) $0.45 per each Series E Common Equivalent Share, in either case, payable in cash, without interest and subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e) (“Withholding Rights”) (the Exchange Ratio multiplied by the number of shares of Common Stock into which such share of Preferred Stock was convertible immediately prior to the Effective Time. The Company's “Series A 8% Cumulative Redeemable Preferred Stock E Share Merger Consideration”) and ("v) Series A F Convertible Preferred Stock"), par value $0.001 per share, of the Company (the “Series F Shares”, and together with the Series B Shares, Series B 8% Cumulative Redeemable Preferred Stock ("C Shares, Series B Preferred Stock") D Shares and Series C 6% Cumulative Redeemable E Shares, the “Preferred Stock ("Series C Preferred Stock")Shares”, shall be referred to herein collectively as and the "Preferred Stock." The Exchange Ratio multiplied by the number of Acquiror Common Shares into which a share of each series of the Company's Preferred Stock shall be converted in the Merger shall be referred to herein collectively as the "Per Share Amounts" and individually as a "Per Share Amount." The Common Stock and Preferred Stock shall be referred to herein collectively Shares together, the “Shares”) that are issued and outstanding as the "Capital Stock." All such shares of Preferred Stock shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate previously evidencing any such shares shall thereafter represent only the right to receive the Merger Consideration as described below. The holders of certificates previously evidencing such shares of Preferred Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Preferred Stockbe automatically cancelled, except as otherwise provided herein or by law. Each such certificate previously evidencing such shares of Preferred Stock shall no longer be considered outstanding and shall be exchanged for converted into the right to receive the greater of (A) 100% of the Series F Shares liquidation preference of $4.375 per share and (B) $0.45 per each Series F Common Equivalent Share, in either case, payable in cash, without interest and subject to any withholding of Taxes required by applicable Per Share Amount multiplied by the number of shares previously evidenced by the canceled certificate upon the surrender of such certificate Law in accordance with Section 2.2(e) (“Withholding Rights”) (the provisions “Series F Share Merger Consideration, and together with the Common Share Merger Consideration, the Series B Share Merger Consideration, the Series C Share Merger Consideration, the Series D Share Merger Consideration and the Series E Share Merger Consideration, the “Merger Consideration”), in each case, upon surrender of the certificates formerly representing such Series B Shares, Series C Shares, Series D Shares, Series E Shares or Series F Shares, as applicable, or affidavits of loss thereof, in accordance with Section 2.3, without interest2.2 (“Payment for Securities; Surrender of Certificates”).

Company Preferred Stock. Subject to the other provisions of this Section 2.13.7, each share of preferred stock, par value $.01 per share, of the Company ("Series C Preferred Stock"), if any, which is issued and outstanding and has not been redeemed immediately prior to the Effective Time in accordance with its terms (excluding other than shares of Series C Preferred Stock owned or held by Parent, Merger Sub, the Company or any shares described of their respective direct or indirect wholly owned Subsidiaries, all of which shall be canceled as provided in Sections 2.1(c) and (dSection 3.1(a)), shall be converted into the right to receive the number of one fully paid and nonassessable Acquiror Shares equal to the Exchange Ratio multiplied by the number of shares of Common Stock into which such share of Parent 8.7% cumulative redeemable preferred stock (the “Parent 8.7% Preferred Stock”). Subject to Section 3.7, each share of Series D Preferred Stock was convertible immediately prior to the Effective Time. The Company's Series A 8% Cumulative Redeemable Preferred Stock ("Series A Preferred Stock")if any, Series B 8% Cumulative Redeemable Preferred Stock ("Series B Preferred Stock") which is issued and Series C 6% Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), shall be referred to herein collectively as the "Preferred Stock." The Exchange Ratio multiplied by the number of Acquiror Shares into which a share of each series of the Company's Preferred Stock shall be converted in the Merger shall be referred to herein collectively as the "Per Share Amounts" and individually as a "Per Share Amount." The Common Stock and Preferred Stock shall be referred to herein collectively as the "Capital Stock." All such shares of Preferred Stock shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate previously evidencing any such shares shall thereafter represent only the right to receive the Merger Consideration as described below. The holders of certificates previously evidencing such shares of Preferred Stock outstanding has not been redeemed immediately prior to the Effective Time shall cease to have any rights in accordance with respect to such its terms (other than shares of Series D Preferred Stock owned or held by Parent, Merger Sub, the Company or any of their respective direct or indirect wholly owned Subsidiaries, all of which shall be canceled as provided in Section 3.1(a)), shall be converted into the right to receive one fully paid and nonassessable share of Parent 8.75% cumulative redeemable preferred stock (the “Parent 8.75% Preferred Stock” and together with the Parent 8.7% Preferred Stock, except as otherwise provided herein or by lawthe “Parent Preferred Stock”). Each such certificate previously evidencing such Immediately prior to the Effective Time, unless all shares of Series C Preferred Stock shall be exchanged for and Series D Preferred Stock have been redeemed prior to the applicable Per Share Amount multiplied by the number of shares previously evidenced by the canceled certificate upon the surrender of such certificate Effective Time in accordance with the provisions respective terms thereof, the articles of Section 2.3incorporation or other equivalent organizational documents of Parent shall be modified in accordance with applicable Legal Requirements in order to create the Parent 8.7% Preferred Stock and the Parent 8.75% Preferred Stock, without interestas the case may be, having preferences, conversion and other rights, privileges, voting powers, restrictions, limitations as to distributions, qualifications and terms or conditions of redemption hereof identical to that of shares of the Series C Preferred Stock and the Series D Preferred Stock, respectively, including with respect to distribution and rights upon liquidation, dissolution or winding up, and shall be pari passu with all issued and outstanding preferred stock of Parent at the Closing Date as to distributions and rights upon liquidation, dissolution or winding up.