Valid Issuance of Preferred and Common Stock The Shares being purchased by the Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Ancillary Agreements and under applicable state and federal securities laws. The Conversion Shares have been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the Restated Certificate, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Ancillary Agreements and under applicable state and federal securities laws.
Issuance of Preferred Stock So long as this Warrant remains outstanding, the Company will not issue any capital stock of any class preferred as to dividends or as to the distribution of assets upon voluntary or involuntary liquidation, dissolution or winding up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value in respect of participation in dividends and in the distribution of such assets.
Conversion of Company Preferred Stock (i) Each issued and outstanding share of Series A Cumulative Convertible Preferred Stock of the Company ("Company Series A Convertible Preferred Stock), other than shares to be cancelled in accordance with Section 2.1(a), together with the Rights attached thereto, shall be converted into the right to receive one validly issued, fully paid and nonassessable share of Series I Cumulative Convertible Preferred Stock of Parent ("Parent Convertible Preferred Stock"). Each share of Parent Convertible Preferred Stock shall have terms that are substantially identical to the terms of Company Series A Convertible Preferred Stock, provided that (A) as a result of the Merger the issuer thereof shall be Parent rather than the Company, (B) the number of shares of Parent Common Stock into which each share of Parent Convertible Preferred Stock shall be convertible (at the same times and subject to the same terms and conditions under which Company Series A Convertible Preferred Stock is convertible into shares of Company Common Stock immediately prior to the Effective Time) shall equal 26.31579 (which number shall be subject to adjustment under the same circumstances, in the same manner and to the same extent as set forth in the existing Certificate of Designation relating to the Company Series A Convertible Preferred Stock) times the Exchange Ratio and (C) each share of Parent Convertible Preferred Stock, when voting together with the Parent Common Stock (and any other shares of capital stock of Parent at the time entitled to vote) as a single class, shall be entitled to a number of votes equal to the number of shares of Parent Common Stock into which one share of Parent Convertible Preferred Stock will be convertible immediately following the Merger. (ii) Each issued and outstanding share of 8.08% Cumulative Preferred Stock, Series D, of the Company ("Company 8.08% Preferred Stock"), other than shares to be cancelled in accordance with Section 2.1(a), shall be converted into the right to receive one validly issued, fully paid and nonassessable share of 8.08% Cumulative Preferred Stock, Series J, of Parent ("Parent 8.08% Preferred Stock"). Each share of Parent 8.08% Preferred Stock shall have terms that are substantially identical to Company 8.08% Preferred Stock, provided that (A) as a result of the Merger the issuer thereof shall be Parent rather than the Company and (B) each share of Parent 8.08% Preferred Stock shall be entitled to three votes per share, voting together as a class with the Parent Common Stock (and any other shares of capital stock of Parent at the time entitled to vote), on all matters submitted to a vote of stockholders of Parent, and shall be entitled to one vote per share on all matters on which the Company 8.08% Preferred Stock is entitled to vote, voting together as a class with any other shares of preferred stock of Parent at the time entitled to vote. (iii) Each issued and outstanding share of 8.40% Cumulative Preferred Stock, Series E, of the Company ("Company 8.40% Preferred Stock," and together with Company Series A Convertible Preferred Stock and Company 8.08% Preferred Stock, "Company Preferred Stock"), other than shares to be cancelled in accordance with Section 2.1(a), shall be converted into the right to receive one validly issued, fully paid and nonassessable share of 8.40% Cumulative Preferred Stock, Series K, of Parent ("Parent 8.40% Preferred Stock," and together with Parent Convertible Preferred Stock and Parent 8.08% Preferred Stock, "Parent New Preferred Stock"). Each share of Parent 8.40% Preferred Stock shall have terms that are substantially identical to Company 8.40% Preferred Stock, provided that (A) as a result of the Merger the issuer thereof shall be Parent rather than the Company and (B) each share of Parent 8.40% Preferred Stock shall be entitled to three votes per share, voting together as a class with the Parent Common Stock (and any other shares of capital stock of Parent at the time entitled to vote), on all matters submitted to a vote of stockholders of Parent, and shall be entitled to one vote per share on all matters on which the Company 8.40% Preferred Stock is entitled to vote, voting together as a class with any other shares of preferred stock of Parent at the time entitled to vote.
Effect of the Merger on Capital Stock Exchange of Certificates Equity-Based Awards
Reservation of Preferred Stock The Preferred Stock issuable upon exercise of the Warrantholder's rights has been duly and validly reserved and, when issued in accordance with the provisions of this Warrant Agreement, will be validly issued, fully paid and non-assessable, and will be free of any taxes, liens, charges or encumbrances of any nature whatsoever; provided, however, that the Preferred Stock issuable pursuant to this Warrant Agreement may be subject to restrictions on transfer under state and/or Federal securities laws. The Company has made available to the Warrantholder true, correct and complete copies of its Charter and Bylaws, as amended. The issuance of certificates for shares of Preferred Stock upon exercise of the Warrant Agreement shall be made without charge to the Warrantholder for any issuance tax in respect thereof, or other cost incurred by the Company in connection with such exercise and the related issuance of shares of Preferred Stock. The Company shall not be required to pay any tax which may be payable in respect of any transfer involved and the issuance and delivery of any certificate in a name other than that of the Warrantholder.
AUTHORIZATION AND ISSUANCE OF SHARES 1. The Customer shall deliver to the Bank the following documents on or before the effective date of any increase, decrease or other change in the total number of Shares authorized to be issued: (a) A certified copy of the amendment to the Charter giving effect to such increase, decrease or change; (b) An opinion of counsel for the Customer, in a form satisfactory to the Bank, with respect to the validity of the Shares, the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable federal law or regulations (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective or, if exempt, the specific grounds therefor); and (c) In the case of an increase, if the appointment of the Bank was theretofore expressly limited, a certified copy of a resolution of the Board of Directors of the Customer increasing the authority of the Bank. 2. Prior to the issuance of any additional Shares pursuant to stock dividends, stock splits or otherwise, and prior to any reduction in the number of Shares outstanding, the Customer shall deliver the following documents to the Bank: (a) A certified copy of the resolutions adopted by the Board of Directors and/or the shareholders of the Customer authorizing such issuance of additional Shares of the Customer or such reduction, as the case may be; (b) A certified copy of the order or consent of each governmental or regulatory authority required by law as a prerequisite to the issuance or reduction of such Shares, as the case may be, and an opinion of counsel for the Customer that no other order or consent is required; and (c) An opinion of counsel for the Customer, in a form satisfactory to the Bank, with respect to the validity of the Shares, the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable law or regulation (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective, or, if exempt, the specific grounds therefor).
Reservation and Availability of Shares of Preferred Stock (a) The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Preferred Stock or out of authorized and issued shares of Preferred Stock held in its treasury, such number of shares of Preferred Stock as will from time to time be sufficient to permit the exercise in full of all outstanding Rights. (b) The Company shall use its best efforts to cause, from and after such time as the Rights become exercisable, all shares of Preferred Stock issued or reserved for issuance in accordance with this Agreement to be listed, upon official notice of issuance, upon the principal national securities exchange, if any, upon which the Common Stock is listed or, if the principal market for the Common Stock is not on any national securities exchange, to be eligible for quotation in the National Association of Securities Dealers' Automated Quotation System or any successor thereto or other comparable quotation system. (c) The Company covenants and agrees that it will take all such action as may be necessary to insure that all shares of Preferred Stock delivered upon exercise of Rights shall, at the time of delivery of the certificates for such shares (subject to payment of the Exercise Price in respect thereof), be duly and validly authorized and issued and fully paid and nonassessable shares. (d) The Company shall use its best efforts to (i) file, as soon as practicable following the occurrence of the event described in Section 11(a)(ii), or as soon as is required by law following the Distribution Date, as the case may be, a registration statement under the Act, with respect to the shares of Preferred Stock purchasable upon exercise of the Rights on an appropriate form, (ii) cause such registration statement to become effective as soon as practicable after such filing, and (iii) cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Act) until the earlier of (a) the date as of which the Rights are no longer exercisable for Preferred Stock, and (b) the earlier of the Expiration Date and the Final Expiration Date. The Company may temporarily suspend, for a period of time not to exceed ninety (90) days, the issuance of shares of Preferred Stock upon exercise of a Right in order to prepare and file a registration statement under the Act and permit it to become effective. The Company will also take such action as may be appropriate under, or to ensure compliance with, the securities or "blue sky" laws of the various states in connection with the exercisability of the Rights. Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be exercisable in any jurisdiction unless the requisite qualification in such jurisdiction shall have been obtained and until a registration statement under the Act (if required) shall have been declared effective. (e) The Company covenants and agrees that it will pay when due and payable any and all federal and state Transfer Taxes which may be payable in respect of the issuance or delivery of the Right Certificates or of any shares of Preferred Stock issued or delivered upon the exercise of Rights. The Company shall not, however, be required to pay any Transfer Tax which may be payable in respect of any transfer or delivery of a Right Certificate to a Person other than, or the issuance or delivery of certificates for Preferred Stock upon exercise of Rights in a name other than that of, the registered holder of the Right Certificate, and the Company shall not be required to issue or deliver a Right Certificate or certificate for Preferred Stock to a Person other than such registered holder until any such Transfer Tax shall have been paid (any such Transfer Tax being payable by the holder of such Right Certificate at the time of surrender) or until it has been established to the Company's satisfaction that no such Transfer Tax is due.
Purchase and Sale of Preferred Stock 1.1 Sale and Issuance of Series A Preferred Stock. --------------------------------------------- (a) The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Closing (as defined below) the Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit ------- B (the "Restated Certificate"). - -------------------- (b) Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase at the Closing and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series A Preferred Stock set forth opposite each such Purchaser's name on Exhibit A --------- attached hereto at a purchase price of $0.609 per share. The shares of Series A Preferred Stock issued to the Purchaser pursuant to this Agreement shall be hereinafter referred to as the "Stock." -----
Conversion of Preferred Stock If the Class is a class and series of the Company’s convertible preferred stock, in the event that all outstanding shares of the Class are converted, automatically or by action of the holders thereof, into common stock pursuant to the provisions of the Company’s Certificate of Incorporation, including, without limitation, in connection with the Company’s initial, underwritten public offering and sale of its common stock pursuant to an effective registration statement under the Act (the “IPO”), then from and after the date on which all outstanding shares of the Class have been so converted, this Warrant shall be exercisable for such number of shares of common stock into which the Shares would have been converted had the Shares been outstanding on the date of such conversion, and the Warrant Price shall equal the Warrant Price in effect as of immediately prior to such conversion divided by the number of shares of common stock into which one Share would have been converted, all subject to further adjustment thereafter from time to time in accordance with the provisions of this Warrant.
Conversion of Shares Exchange of Certificates Section 2.1 Effect of the initial Merger on Capital Stock 4 Section 2.2 Exchange of Certificates 6 Section 2.3 Treatment of Company Equity Awards 9 Section 2.4 Effect of the Subsequent Merger on Capital Stock 10 Section 2.5 Further Assurances 10