Common use of Capitalization; Securities Clause in Contracts

Capitalization; Securities. (a) Upon the Closing and after giving effect to the Confirmation Order, the Plan and the Investment, the authorized capital stock of the reorganized Company shall consist solely of Common Shares. Upon the Closing (after giving effect to the Confirmation Order, the Plan and the Investment), 1,000 Common Shares, representing 100% of the total equity capital of the Company on a Fully Diluted Basis, shall be issued to the Investor. Upon the Closing Date, all of such Common Shares to be issued and delivered to the Investor pursuant to the terms hereof shall have been duly authorized and validly issued, fully paid, nonassessable and not subject to preemptive or similar rights of third parties. Upon the Closing and after giving effect to the Confirmation Order and the Plan, (i) there shall be no voting trusts, voting agreements, proxies, first refusal rights, first offer rights, co-sale rights, options, transfer restrictions or other agreements, instruments or understandings (whether oral, formal or informal) with respect to the voting, transfer or disposition of capital stock of the Company or any Subsidiary to which the Company or any Subsidiary is a party or by which it is bound, or, to the Knowledge of the Company, among or between any Persons other than the Company or any Subsidiary (as the case may be), except as set forth in this Agreement, and (ii) there shall be no options, warrants, stock appreciation rights, restricted stock units, calls, commitments or agreements of any character to which the Company or any Subsidiary is a party, or by which the Company or any Subsidiary is bound, calling for the issuance of shares of capital stock or other Equity Securities of the Company or any Subsidiary or for settlement in cash based upon the value of any such Equity Securities, or other arrangement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound to acquire, at any time or under any circumstance, capital stock of the Company or any Subsidiary or any such Equity Securities. The rights, preferences and privileges of the capital stock of the Company shall be as set forth in the Certificate of Incorporation of the Company, as amended pursuant to the Plan and in effect upon the Closing, in the form approved by the Investor.

Capitalization; Securities. (a) Upon the Closing and after giving effect to the Confirmation Order, the Plan and the Investment, the authorized capital stock of the reorganized Company shall consist solely of One Hundred Thirty Two Million (132,000,000) shares of Common SharesStock. Upon the Closing (after giving effect to the Confirmation Order, the Plan and the Investment), 1,000 Common the Purchased Shares, representing 100% the Designated Percentage of the total equity capital of the Company on a Fully Diluted Basis, shall be issued to the Investor. Upon the Closing Date, all of such Common the Purchased Shares to be issued and delivered to the Investor pursuant to the terms hereof shall have been duly authorized and validly issued, fully paid, nonassessable and not subject to preemptive or similar rights of third parties. Upon the Closing and after giving effect to the Confirmation Order and the Plan, (i) except for the Stockholders Agreement and the Registration Rights Agreement, there shall be no voting trusts, voting agreements, proxies, first refusal rights, first offer rights, co-sale rights, options, transfer restrictions or other agreements, instruments or understandings (whether oral, formal or informal) with respect to the voting, transfer or disposition of capital stock of the Company or any Subsidiary to which the Company or any Subsidiary is a party or by which it is bound, or, to the Knowledge of the Company, among or between any Persons other than the Company or any Subsidiary (as the case may be), except as set forth in this Agreement, and (ii) except for shares of Common Stock representing up to 10% of the outstanding shares of Common Stock on a Fully Diluted Basis as of the Closing Date, issuable to the Bondholders in accordance with the Plan, and shares of Common Stock that are reserved for issuance under any management incentive plan (provided that such shares of Common Stock reserved under a management incentive plan shall not in any event exceed a percentage of authorized shares of Common Stock, calculated on a fully diluted basis, agreed to by the Investor and the Company), there shall be no options, warrants, stock appreciation rights, restricted stock units, calls, commitments or agreements of any character to which the Company or any Subsidiary is a party, or by which the Company or any Subsidiary is bound, calling for the issuance of shares of capital stock or other Equity Securities of the Company or any Subsidiary or for settlement in cash based upon the value of any such Equity Securities, or other arrangement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound to acquire, at any time or under any circumstance, capital stock of the Company or any Subsidiary or any such Equity Securities. The rights, preferences and privileges of the capital stock of the Company shall be as set forth in the Certificate Articles of Incorporation Organization of the Company, as amended pursuant to the Plan and in effect upon the Closing, in the form reasonably approved by the InvestorInvestor (such approval not to be unreasonably withheld, conditioned or delayed).

Capitalization; Securities. (a) Upon the Closing and after giving effect to the Confirmation Order, the Plan and the Investment, the authorized capital stock of the reorganized Company shall consist solely of Common Shares. Upon the Closing (after giving effect to the Confirmation Order, the Plan and the Investment), 1,000 Common Shares, representing 100% of the total equity capital of the Company on a Fully Diluted Basis, shall be issued to the Investor. Upon the Closing Date, all of such Common Shares to be issued and delivered to the Investor pursuant to the terms hereof shall have been duly authorized and validly issued, fully paid, nonassessable and not subject to preemptive or similar rights of third parties. Upon the Closing and after giving effect to the Confirmation Order and the Plan, (i) there shall be no voting trusts, voting agreements, proxies, first refusal rights, first offer rights, co-sale rights, options, transfer restrictions or other agreements, instruments or understandings (whether oral, formal or informal) with respect to the voting, transfer or disposition of capital stock of the Company or any Subsidiary to which the Company or any Subsidiary is a party or by which it is bound, or, to the Knowledge of the Company, among or between any Persons other than the Company or any Subsidiary (as the case may be), except as set forth in this Agreement, and (ii) except as approved by Investor in connection with the second sentence of Section 7.02(g), there shall be no options, warrants, stock appreciation rights, restricted stock units, calls, commitments or agreements of any character to which the Company or any Subsidiary is a party, or by which the Company or any Subsidiary is bound, calling for the issuance of shares of capital stock or other Equity Securities of the Company or any Subsidiary or for settlement in cash based upon the value of any such Equity Securities, or other arrangement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound to acquire, at any time or under any circumstance, capital stock of the Company or any Subsidiary or any such Equity Securities. The rights, preferences and privileges of the capital stock of the Company shall be as set forth in the Certificate of Incorporation of the Company, as amended pursuant to the Plan and in effect upon the Closing, in the form approved by the Investor.

Capitalization; Securities. (a) Upon As of the Closing and after giving effect to the Confirmation Order, the Plan and the Investmentdate hereof, the authorized capital stock of the reorganized Company shall consist solely consists of Common Shares. Upon the Closing (after giving effect to the Confirmation Order, the Plan and the Investment), 1,000 Common Shares, representing 100% of the total equity capital of the Company on a Fully Diluted Basis, shall be issued to the Investor. Upon the Closing Date, all of such Common Shares to be issued and delivered to the Investor pursuant to the terms hereof shall have been duly authorized and validly issued, fully paid, nonassessable and not subject to preemptive or similar rights of third parties. Upon the Closing and after giving effect to the Confirmation Order and the Plan, (i) there shall be no voting trusts10,000,000 shares of Common Stock, voting agreementsof which 5,136,316 shares are outstanding, proxies2,333,333 are reserved for issuance upon conversion of Senior Preferred Stock and 1,082,667 are reserved for issuance under the Option Plans, first refusal rightsas applicable, first offer rights, co-sale rights, options, transfer restrictions the COO Agreement and all other agreements or other agreements, instruments or understandings (whether oral, formal or informal) with respect to the voting, transfer or disposition of capital stock of the Company or any Subsidiary arrangements pursuant to which the Company has or any Subsidiary is a party obligated to issue options or by which it is bound, or, to the Knowledge of the Company, among or between any Persons other than the Company or any Subsidiary (as the case may be), except as set forth in this Agreementwarrants, and (ii) 2,000,000 shares of preferred stock, par value $0.10 per share, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable. (b) Except for the Senior Preferred Stock to be issued pursuant to this Agreement, the securities granted or to be granted pursuant to the COO Agreement and as set forth on Schedule 2.4(b), there shall are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) The Company and its Subsidiaries have no outstanding Indebtedness other than under the agreements and in the amounts set forth on Schedule 2.4(c) and other than Indebtedness incurred under Section 2.9(v) after the date hereof. A complete and correct copy of each credit agreement, indenture and similar documents with respect to such Indebtedness, including the exhibits and schedules thereto and any other material documents executed in connection therewith, has been made available to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Senior Preferred Stock to be no optionsissued pursuant to this Agreement have been duly and validly authorized and, warrantswhen issued as contemplated by this Agreement, stock appreciation will have been validly issued and will be fully paid and non-assessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance and, when issued upon conversion of the Senior Preferred Stock, will have been validly issued and will be fully paid and non-assessable. Schedule 2.4(d) sets forth a complete and correct list of the registration rights, restricted stock unitsshareholder, callsvoting rights and similar agreements requiring the Company to register securities under the Securities Act or governing voting and other rights of shareholders of the Company, commitments or agreements of any character in each case to which the Company or any Subsidiary is a party. Except as set forth on Schedule 2.4(d), the registration of Conversion Shares pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or by which instrument applicable to the Company or any Subsidiary is bound, calling for (other than the issuance of shares of capital stock or other Equity Securities Registration Rights Agreement). As of the Company or any Subsidiary or for settlement in cash based upon date hereof, there are, and as of the value of any such Equity SecuritiesClosing Date there will be, or other arrangement no securities as to which the Company or any Subsidiary is has received a party or by which the Company or any Subsidiary is bound to acquire, at any time or under any circumstance, capital stock of the Company or any Subsidiary or any such Equity Securities. The rights, preferences and privileges of the capital stock of the Company shall be as set forth in the Certificate of Incorporation of the Company, as amended request pursuant to the Plan and in effect upon the Closing, in the form approved by the Investor.any agreement listed on Schedule 2.4(d) hereto. Section 2.5

Capitalization; Securities. (a) Upon the Closing and after giving effect to the Confirmation Order, the Plan and the Investment, the authorized capital stock of the reorganized Company shall consist solely of (i) Class A Common Shares, the principal terms of which are set forth in Exhibit A attached hereto and (ii) Class B Common Shares, the principal terms of which are set forth in Exhibit A attached hereto. Upon the Closing (after giving effect to the Confirmation Order, the Plan and the Investment), 1,000 Investment and all issuances of Equity Securities reserved for issuance to Constituents and employees of the Companies in accordance with the Plan) there shall not be outstanding any (A) Class A Common Shares, other than (x) Class A Common Shares to be issued by the Company to or for the benefit of the Constituents in accordance with the Plan and (y) Class A Common Shares to be issued by the Company to members of management of the Company as stock options or restricted stock, stock options and other types of equity-based compensation awards ( Management Restricted Stock ), such shares described in clauses (x) and (y) shall equal in the aggregate, 20.1% of the total equity capital of the Company on a Fully Diluted Basis and (B) Class B Common Shares other than the Class B Common Shares issued to the Investor on the Closing Date, representing 10079.9% of the total equity capital of the Company on a Fully Diluted Basis, . The Management Restricted Stock shall be issued pursuant to the terms of an equity incentive plan to be adopted by the Company, and reasonably acceptable to the Investor, that provides for the issuance of Class A Common Shares pursuant to grants of restricted stock, stock options and other types of equity-based compensation awards. Upon the Closing Date, all of such outstanding securities, including the Class B Common Shares to be issued and delivered to the Investor pursuant to the terms hereof hereof, shall have been duly authorized and validly issued, fully paid, nonassessable and not subject to preemptive or similar rights of third parties. The Class A Common Shares issuable upon the conversion of the Class B Common Shares, when issued and delivered to the holders of the Class B Common Shares, shall have been duly authorized and be validly issued, fully paid, nonassessable and not subject to preemptive or similar rights of third parties. Upon the Closing and after giving effect to the Confirmation Order and the Plan, (i) there shall be no voting trusts, voting agreements, proxies, first refusal rights, first offer rights, co-sale rights, options, transfer restrictions or other agreements, instruments or understandings (whether oral, formal or informal) with respect to the voting, transfer or disposition of capital stock of the Company or any Subsidiary to which the Company or any Subsidiary is a party or by which it is bound, or, to the Knowledge of the Company, among or between any Persons other than the Company or any Subsidiary (as the case may be), except as set forth in this Agreement, and (ii) except as set forth herein or in the Plan, there shall be no options, warrants, stock appreciation rights, restricted stock units, calls, commitments or agreements of any character to which the Company or any Subsidiary is a party, or by which the Company or any Subsidiary is bound, calling for the issuance of shares of capital stock or other Equity Securities of the Company or any Subsidiary or for settlement in cash based upon the value of any such Equity SecuritiesSubsidiary, or other arrangement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound to acquire, at any time or under any circumstance, capital stock of the Company or any Subsidiary or any such Equity Securitiesother securities other than the Management Restricted Stock. The rights, preferences and privileges of the capital stock of the Company shall be as set forth in the Certificate of Incorporation of the Company, as amended pursuant to the Plan and in effect upon the Closing, in the form approved by the Investor.