Amended and Restated Certificate of Designation. Subject to the exercise of the Option, Seller and the Company consent and agree to the terms set forth in Exhibit B. An amendment to the certificate of incorporation of the Company amending the terms of the Series B Preferred Stock shall be filed by the Company with the Delaware Secretary of State as of the Closing Date which reflects the changes contemplated by such Exhibit B. If the Company reasonably determines that stockholder approval of such amendment is required under the laws of the State of Delaware, then the Board of Directors of the Company shall establish, before the Closing Date, a new class of preferred stock with the same rights, preferences and privileges as the Series B Preferred Stock after giving effect to the changes contemplated by Exhibit B. Immediately after the Closing, Buyer may elect to exchange its Series B Preferred Stock for shares of such new class of preferred stock (at the rate of one share for one share).
Amended and Restated Certificate of Designation. (i) In furtherance of effecting the Amendments as soon as practicable, but no later than ten (10) Business Days of the date hereof (such date, the “COD Date”), the Company and the Required Holders shall agree to attach as Exhibit A to each of the Forbearance Agreements a form of Amended and Restated Certificate of Designations (the “Amended Certificate of Designations”) setting forth certain revised terms of the Preferred Shares, including, without limitation, a reduction in the conversion price of the Preferred Shares set forth in the Certificate of Designations to $6.75, allowance for the accrual of dividends on the Preferred Shares at a rate equal to 10% per annum, which dividends may be payable in kind; and a revision of the definition of the Leverage Ratio (as such term is defined in the Certificate of Designations), which revised definition shall provide for the Leverage Ratio to be calculated as a multiple of recurring monthly revenue (“RMR”) as opposed to EBITDA and a revision of the Maximum Leverage Ratio covenant set forth in the Certificate of Designations to require such Maximum Leverage Ratio to equal 38x RMR, commencing on June 30, 2008.
(ii) As soon as practicable, the Company shall use its best efforts to obtain from shareholders holding a majority of the Company’s outstanding shares of common stock and a majority of the Preferred Shares executed commitments to vote at a meeting of the Company’s shareholders approving in accordance with applicable law and the Company’s governing documents resolutions (the “Resolutions”) in form and substance reasonably acceptable to the Xxxxxxx Xxxx & Xxxxx providing for the amendment and restatement of the Certificate of Designations in the form of the Amended Certificate of Designations (such affirmative approval being referred to herein as the “Shareholder Approval”). The Company shall provide each shareholder entitled to vote at the annual meeting of shareholders of the Company (the “Shareholder Meeting”), which shall be promptly called and held not later than (x) in the event the applicable proxy statement is not reviewed by the SEC, July 1, 2007 and (y) otherwise, October 1, 2007 (the “Shareholder Meeting Deadline” and the actual date of such meeting, the “Shareholder Meeting Date”), a proxy statement, substantially in the form which has been previously reviewed and approved by the Xxxxxxx Xxxx & Xxxxx at the expense of the Company, soliciting each such shareholder’s affirmative vote at the Shareholde...
Amended and Restated Certificate of Designation. The Corporation filed a Certificate of Designation for Series A Preferred Stock with the Delaware Secretary of State on December 29, 2000, which has been amended by the Certificate of Amendment of Certificate of Designation filed with the Delaware Secretary of State on December 31, 2001 and by the Second Certificate of Amendment of Certificate of Designation filed with the Delaware Secretary of State on December 31, 2002 (the "Amended and Restated Certificate of Designation"). To the extent that these Bylaws conflict in any manner with Section 5 of the Amended and Restated Certificate of Designation, Section 5 of the Amended and Restated Certificate of Designation shall govern and prevail.
Amended and Restated Certificate of Designation. The Amended and Restated Certificate of Designation shall not have been modified, amended or changed and shall be in full force and effect; Releases. Southwall shall have secured releases from its Tempe landlord and the Tempe equipment lessor releasing Southwall from all claims and liabilities on terms reasonably satisfactory to Xxxxxxx & Company;
Amended and Restated Certificate of Designation
