Common use of Issuance of New Preferred Stock Clause in Contracts

Issuance of New Preferred Stock. (a) Upon the terms and subject to the conditions of this Agreement, at the Swap Closing, the Company shall issue to Purchaser, and Purchaser shall subscribe for and purchase from the Company, the First Tranche Shares. In consideration for the issuance of the First Tranche Shares to Purchaser, Purchaser shall (i) surrender to the Company all of the shares of Senior Preferred Stock acquired by Purchaser pursuant to the Senior Preferred Stock Purchase Agreements and the Tender Offer, (ii) surrender to the Company all of the shares of Junior Preferred Stock acquired by Purchaser pursuant to the Junior Preferred Stock Purchase Agreement and the Tender Offer, (iii) pay the First Tranche Price into the Escrow Account and (iv) pay to each Initial Investor of Junior Preferred Stock the applicable Additional Returns set forth opposite the name of each Initial Investor of Junior Preferred Stock as provided in Exhibit 1.01. (b) Upon the terms and subject to the conditions of this Agreement, at the Swap Closing, the Company shall issue to Purchaser, and Purchaser shall subscribe for and purchase from the Company, 622,897 shares of Series B-2 Preferred Stock (the “Second Tranche Shares”) in consideration for the payment by Purchaser of US$62,289,696 (“Second Tranche Price”) in cash into the Escrow Account; provided, however, that if the aggregate of the First Tranche Price and US$62,289,696 exceeds US$75,000,000 (such excess being referred to herein as the “Capital Excess”), the Second Tranche Price may, in the sole discretion of Purchaser upon written notice to the Company, be reduced by an amount equal to or less than the Capital Excess and the number of the Second Tranche Shares shall be reduced proportionally. (c) The Company shall execute and file with the Secretary of State of the State of Delaware (i) the Certificate of Designations of Series B-1 Preferred Stock attached hereto as Exhibit 4.01(c)(i), subject to any revisions required by AMEX pursuant to Section 7.13, and (ii) the Certificate of Designations of Series B-2 Preferred Stock attached hereto as Exhibit 4.01(c)(ii), subject to any revisions required by AMEX pursuant to Section 7.13, on the Closing Date and prior to the issuance of the First Tranche Shares and Second Tranche Shares.