Exchange of Preferred Shares. The Company acknowledges and agrees that each of the Investors is acting solely in the capacity of arm's length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that each Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by any of the Investor or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such Investor's purchase of the Securities. The Company further represents to each Investor that the Company's decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.
Exchange of Preferred Shares. The settlement of the Exchange will take place on September 30, 2013 (the “Settlement Date”), at which time the Holder will cause delivery of the Preferred Shares to the Company, and the Company will cause the Exchange Shares (as defined below) to be credited, in accordance with the procedures of the Depository Trust Company, into a book-entry account previously identified in writing by the Holder, in exchange for the Preferred Shares, the Preferred Shares that would have been issued as a pay-in-kind dividend on September 30, 2013 and all claims Holder may have arising out of or relating to the Preferred Shares (including without limitation, any dividends thereon, whether accrued, accumulated, declared or otherwise).
Exchange of Preferred Shares. Subject to an in accordance with the Exchange Proceedures set forth in Exhibit D hereto, the Corporation and each of the Purchasers hereby agree that the Corporation may elect, in its sole discretion, to cause Purchasers to exchange all of the then-outstanding Preferred Shares for Non-Voting Common Stock and that the Purchasers shall cause the Preferred Shares to be so exchanged (the “Share Exchange”).
Exchange of Preferred Shares. Subject to the terms and conditions of this Agreement, at the Closing provided for in Section 3, (i) each Purchaser shall sell, convey transfer and assign to the Company, free and clear of all liens, pledges, encumbrances, changes, restrictions or known claims of any kind, nature and description, and the Company shall purchase and accept, the number of shares of current issued and outstanding Preferred Shares of the applicable series specified opposite such Purchaser’s name in Schedule A (such Preferred Shares, the “Exchanged Shares”) and (ii) in exchange for the transfer by the Purchasers, the Company shall sell, convey, transfer and assign to the Purchasers, and the Purchasers shall accept from the Company, the number of shares of MRP Shares and of the applicable series specified opposite such Purchaser’s name in Schedule A. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder. The Series O MRP Shares, the Series P MRP Shares, the Series Q MRP Shares, the Series R MRP Shares and the Series S MRP Shares issued hereunder are each herein sometimes referred to as MRP Shares of a “series.”
Exchange of Preferred Shares. (a) Exchange of Preferred Shares. Concurrently herewith, the Investor is exchanging with, and delivering to, the Company, free and clear of any and all liens, claims, restrictions, security interests or any other encumbrances whatsoever (collectively, "LIENS"), an aggregate of 1,626 Preferred Shares for an aggregate payment by the Company of $1,200,000 (the "CASH PURCHASE PRICE") and the issuance by the Company of New Warrants to purchase an aggregate of 750,000 shares (the "NEW WARRANT SHARES" and, together with the New Warrants, the "SECURITIES") of Common Stock.
(b) Form of Payment. Concurrently herewith, (i) the Company is (A) paying the Cash Purchase Price to the Investor by wire transfer of immediately available funds in accordance with the Investor's written wire instructions set forth on Schedule A attached hereto and (B) issuing to the Investor New Warrants to purchase the New Warrant Shares and (ii) the Investor is delivering to the Company one or more stock certificates representing an aggregate of 1,026 Preferred Shares, along with stock powers therefor duly endorsed in blank.
Exchange of Preferred Shares. Subject to the terms and conditions herein, immediately prior to the Closing, all of the Preferred Shares shall be exchanged for a total of 1,949,278 Common Shares.
Exchange of Preferred Shares. The Corporation covenants and agrees that at any time after the fifth anniversary of the date of issuance of the Preferred Shares and upon the acquisition of Preferred Shares from KVN pursuant to the exercise of a Call Right, Lafarge will be entitled to elect to require the Corporation to exchange all Preferred Shares owned by Lafarge into Common Shares.
Exchange of Preferred Shares. NMD and the Holders agree that upon the business day that the Holders receive each of the following: (A) the original shares of Preferred Stock (the number of shares of Preferred Stock to be issued for the principal amount of Convertible Debentures owned of record by each Holder, plus accrued interest, as set forth on Schedule A) to be issued upon the exchange, and (B) notice from NMD that each of the following conditions (the "Conditions") have been satisfied, (i) written proof that the Registration Statement (as defined in the Registration Rights Agreement annexed hereto as Exhibit A) including the shares of Common Stock underlying the Preferred Stock issuable hereunder has been declared effective by the Securities and Exchange Commission (the "SEC"), (ii) written proof that the Certificate of Amendment providing for all of the rights, privileges, and preferences of the Preferred Stock has been filed and accepted by the Secretary of State for the State of Ohio, and (iii) receipt of a certificate
Exchange of Preferred Shares. Subject to Sections 2(a) and 2(b), the Preferred Shares shall be exchangeable for Common Shares pursuant to the Exchange Right(s), on the terms and conditions set forth in this Section 4(s).
(i) Subject to the provisions of Section 4(s)(iii)(G), at any time or times on or after the Closing Date until the Maturity Date (as defined in the Articles of Amendment), any Investor shall be entitled to exchange any whole number of Preferred Shares for fully paid and nonassessable shares of Common Shares in accordance with Section 4(s)(iii) at the Exchange Rate (as defined below).
(ii) The number of Common Shares issuable upon exchange of each Preferred Share pursuant to Section 4(s)(i) shall be determined according to the following formula (the "Exchange Rate"): Exchange Amount Exchange Price No fractional Common Shares are to be issued upon the exchange of any Preferred Share, but rather the number of shares of Common Shares to be issued shall be rounded up to the nearest whole number.
Exchange of Preferred Shares. On the date hereof, the Holder shall, and the Company shall, pursuant to Section 3(a)(9) of the Securities Act, exchange the Preferred Shares for the Exchange Note, without the payment of any additional consideration (the "Exchange"), as follows:
