Common use of Redemption of Company Preferred Stock Clause in Contracts

Redemption of Company Preferred Stock. (a) If there is no Company Preferred Approval Event, then at least five days before the Closing Date, the Company shall transmit to the holders of Company Preferred Stock a Company Redemption Notice. The Company Redemption Notice (i) shall state that each share of Company Preferred Stock held by such holder shall be redeemed by the Company on a Secondary Company Redemption Date that is expected by the parties to be the Closing Date and (ii) may, at the Company’s option include as a condition (which may be waived by the Company in its sole discretion) to any obligation of the Company to effect the Preferred Redemption, that Parent and its Subsidiaries shall have made an irrevocable deposit with the Paying Agent for the Company’s benefit and on its behalf of the full amount in cash necessary to pay on the Closing Date the Secondary Company Redemption Price for all shares of the Company Preferred Stock (the “Preferred Deposit”). If there is no Company Preferred Approval Event, then no later than the opening of business on the Closing Date, (i) Parent shall make the Preferred Deposit with the Paying Agent and (ii) the Company shall at the time of the Preferred Deposit give the Paying Agent irrevocable instructions and authority to pay on the date set for redemption the Secondary Company Redemption Price to the holders of Company Preferred Stock to be redeemed as set forth in the Company Redemption Notice. Notwithstanding anything to the contrary contained in this Agreement, if Parent fails to make the Preferred Deposit as contemplated by the preceding sentence, the Company may, in its sole discretion, make all or any part of the Preferred Deposit with the Paying Agent and may effect the Preferred Redemption if there is no Company Preferred Approval Event. (b) None of the Company or its Subsidiaries or any of their respective Representatives shall be required to make any payment or deposit any funds related thereto or execute or deliver any certificate, document, legal opinion, instrument or agreement, or agreement to any change or modification of any existing certification, document, instrument or agreement in connection therewith, or be bound by the terms of the Preferred Redemption, in each case, that is effective prior to the time that Parent or the Company makes the Preferred Deposit with the Paying Agent described in this Section 5.19 or that would be effective if either the Preferred Deposit or the Effective Time does not occur. (c) None of the Company or its Subsidiaries or any of their respective Representatives shall be required in connection with the Preferred Redemption to (i) pay any fee or incur any other cost or expense for which it has not received simultaneous or prior reimbursement or, with respect to immaterial costs or expenses, for which it is not indemnified under Section 5.18(d) by or on behalf of Parent or (ii) cause any director, officer, employee, stockholder or representative of the Company or any of its Subsidiaries to incur any personal liability. (d) Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no obligations to effect the Preferred Redemption or to take the other actions under this Section 5.19, and the Company Board of Directors shall have no obligation to approve any such action, if the Company Board of Directors at any time determines that (i) after giving effect to the Preferred Redemption (including the Preferred Deposit), the Company would reasonably be expected to be Insolvent, (ii) the surplus of the Company prior to the Preferred Redemption would reasonably be expected to be less than the amount of the Preferred Redemption or (iii) funds are otherwise not legally available for the Preferred Redemption, in each case as determined under the TBOC. (e) Parent shall, and shall cause each of its Subsidiaries to and shall use reasonable best efforts to cause their respective Representatives to cooperate with the Company as to all matters on the Preferred Redemption and shall provide to the Company all reasonably requested cooperation for the Preferred Redemption, including providing in the form reasonably requested by the Company, information regarding Parent, its Subsidiaries and the Surviving Company (including providing the information and documents contemplated by Section 21.314 of the TBOC) whether requested of Parent or its Representatives and which shall include financial and other information that assumes the completion of the Merger, the Preferred Redemption and the transactions contemplated hereby. (f) The Company shall, and shall cause each of its Subsidiaries to and shall use reasonable best efforts to cause their respective Representatives to, cooperate with Parent as to all matters on the Preferred Redemption and shall provide to Parent all reasonably requested cooperation for the Preferred Redemption, including providing in the form reasonably requested by Parent, information regarding the Company and its Subsidiaries (including providing the information and documents contemplated by Section 21.314 of the TBOC) whether requested of the Company or its Representatives and which shall include financial and other information that assumes the completion of the Merger, the Preferred Redemption and the transactions contemplated hereby.

Redemption of Company Preferred Stock. (a) If there is no Company Preferred Approval Event, then at least five days before Immediately prior to the Closing Dateconsummation of the transactions contemplated by this Agreement, the Company shall transmit to redeem all of the holders of issued and outstanding Company Preferred Stock from the holders thereof (the “Company Preferred Shareholders”) at a Company price per share described in the Company’s Articles of Incorporation, as amended from time to time, in effect immediately prior to the Effective Time (in the aggregate, the “Redemption NoticeConsideration”). The Redemption Consideration, the portion of the Redemption Consideration payable by the Company Redemption Notice (i) shall state that each share to and the number of shares of Company Preferred Stock held by such holder each Company Preferred Shareholder and the identity of each Company Preferred Shareholder is set forth on Schedule 2.3 attached hereto. (b) The Redemption Consideration shall be redeemed paid at the Closing by the Company on a Secondary Company Redemption Date that is expected by depositing the parties Estimated Closing Cash with Mellon Investor Services, LLC (the “Paying Agent”) for distribution to be the Closing Date and (ii) may, at the Company’s option include as a condition (which may be waived by the Company in its sole discretion) Preferred Shareholders and to the extent of any obligation insufficiency, the remainder of the Company to effect Redemption Consideration (the Preferred Redemption, that “Remaining Redemption Payment”) shall be deposited by Parent and its Subsidiaries shall have made an irrevocable deposit on behalf of the Surviving Corporation with the Paying Agent for the Company’s benefit Agent, and on its behalf as soon as practical thereafter, payment of the full amount Redemption Consideration shall be made by the Paying Agent to the Company Preferred Shareholders in cash necessary accordance with Schedule 2.3, this Section 2.3(b) and the Paying Agent Agreement. No later than ten (10) days after the Effective Time, the Company shall mail to pay on the Closing Date the Secondary each Company Redemption Price for all Preferred Shareholder (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to certificates representing outstanding shares of the Company Preferred Stock (the “Preferred Deposit”). If there is no Company Preferred Approval EventStock Certificates”) shall pass, then no later than only upon proper delivery of the opening of business on the Closing Date, (i) Parent shall make the Company Preferred Deposit with Stock Certificates to the Paying Agent Agent) and (ii) instructions for use in effecting the surrender of the Company shall at the time Preferred Stock Certificates for payment of the Preferred Deposit give Redemption Consideration therefore, in the Paying Agent irrevocable instructions and authority to pay on the date set for redemption the Secondary Company Redemption Price to the holders form attached hereto as Exhibit 2.3(b). Upon surrender of Company Preferred Stock Certificates to the Paying Agent, together with such letter of transmittal duly executed and any other required documents, such Company Preferred Shareholder shall be entitled to receive his, her or its share of the Redemption Consideration in accordance with Schedule 2.3 and the Company Preferred Stock Certificate will be cancelled. No interest shall be paid or accrue on the Redemption Consideration payable upon surrender of the Company Preferred Stock Certificates. If any payment of the Redemption Consideration is to be redeemed made to a person other than the one in whose name the Company Preferred Stock Certificate surrendered in exchange therefore is registered, it shall be a condition of such payment that the Company Preferred Stock Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer. Notwithstanding the foregoing, neither the Paying Agent nor any other party hereto shall be liable to any Company Preferred Shareholder for any Redemption Consideration delivered to a public official pursuant to applicable escheat law. (c) In the event any Company Preferred Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Preferred Stock Certificate to be lost, stolen or destroyed, and an agreement by such person to indemnify the Surviving Corporation and Parent against any claim that may be made against it with respect to such Company Preferred Stock Certificate, the Paying Agent shall deliver in exchange for such affidavit and agreement, payment of such Company Preferred Shareholder’s share of the Redemption Consideration in the manner set forth in this Section 2.3, less any fees deducted as set forth in the Company Redemption Notice. Notwithstanding anything to the contrary contained in this Agreement, if Parent fails to make the Preferred Deposit as contemplated by the preceding sentence, the Company may, in its sole discretion, make all or any part letter of the Preferred Deposit with the Paying Agent and may effect the Preferred Redemption if there is no Company Preferred Approval Eventtransmittal. (b) None of the Company or its Subsidiaries or any of their respective Representatives shall be required to make any payment or deposit any funds related thereto or execute or deliver any certificate, document, legal opinion, instrument or agreement, or agreement to any change or modification of any existing certification, document, instrument or agreement in connection therewith, or be bound by the terms of the Preferred Redemption, in each case, that is effective prior to the time that Parent or the Company makes the Preferred Deposit with the Paying Agent described in this Section 5.19 or that would be effective if either the Preferred Deposit or the Effective Time does not occur. (c) None of the Company or its Subsidiaries or any of their respective Representatives shall be required in connection with the Preferred Redemption to (i) pay any fee or incur any other cost or expense for which it has not received simultaneous or prior reimbursement or, with respect to immaterial costs or expenses, for which it is not indemnified under Section 5.18(d) by or on behalf of Parent or (ii) cause any director, officer, employee, stockholder or representative of the Company or any of its Subsidiaries to incur any personal liability. (d) Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no obligations to effect the Preferred Redemption or to take the other actions under this Section 5.19, and the Company Board of Directors shall have no obligation to approve any such action, if the Company Board of Directors at any time determines that (i) after giving effect to the Preferred Redemption (including the Preferred Deposit), the Company would reasonably be expected to be Insolvent, (ii) the surplus of the Company prior to the Preferred Redemption would reasonably be expected to be less than the amount of the Preferred Redemption or (iii) funds are otherwise not legally available for the Preferred Redemption, in each case as determined under the TBOC. (e) Parent shall, and shall cause each of its Subsidiaries to and shall use reasonable best efforts to cause their respective Representatives to cooperate with the Company as to all matters on the Preferred Redemption and shall provide to the Company all reasonably requested cooperation for the Preferred Redemption, including providing in the form reasonably requested by the Company, information regarding Parent, its Subsidiaries and the Surviving Company (including providing the information and documents contemplated by Section 21.314 of the TBOC) whether requested of Parent or its Representatives and which shall include financial and other information that assumes the completion of the Merger, the Preferred Redemption and the transactions contemplated hereby. (f) The Company shall, and shall cause each of its Subsidiaries to and shall use reasonable best efforts to cause their respective Representatives to, cooperate with Parent as to all matters on the Preferred Redemption and shall provide to Parent all reasonably requested cooperation for the Preferred Redemption, including providing in the form reasonably requested by Parent, information regarding the Company and its Subsidiaries (including providing the information and documents contemplated by Section 21.314 of the TBOC) whether requested of the Company or its Representatives and which shall include financial and other information that assumes the completion of the Merger, the Preferred Redemption and the transactions contemplated hereby.

Redemption of Company Preferred Stock. (a) If there is The Merger shall have no effect on the Company Series A Preferred Approval EventStock or the Company Series B Preferred Stock issued and outstanding immediately prior to the Effective Time and, then at least five days before and after the Closing DateEffective Time, the Company shall transmit to the holders of Company Series A Preferred Stock a and the Company Redemption Notice. The Series B Preferred Stock shall remain outstanding and shall continue to be Company Redemption Notice Series A Preferred Stock and the Company Series B Preferred Stock, respectively, of the Surviving Entity; provided, however, that the Surviving Entity shall, and Parent shall cause the Surviving Entity to, (i) shall state that each share of Company Preferred Stock held by such holder shall be redeemed by exercise its Special Optional Redemption Right under (and as defined in) the Company on a Secondary Company Redemption Date that is expected by the parties to be Charter within fifteen (15) days after the Closing Date with respect to all of the issued and outstanding Company Series A Preferred Stock and Company Series B Preferred Stock, and (ii) may, at the Company’s option include as a condition (which may be waived by the Company in its sole discretion) to any obligation of the Company to effect the Preferred Redemption, that Parent and its Subsidiaries shall have made an irrevocable deposit with the Paying Agent for the Company’s benefit and on its behalf of the full amount in cash necessary to pay on the Closing Date the Secondary Company Redemption Price for all shares of the Company Preferred Stock (the “Preferred Deposit”). If there is no Company Preferred Approval Event, then no later than the opening of business on the Closing Date, (i) Parent shall make the Preferred Deposit with the Paying Agent and (ii) the Company shall at the time of the Preferred Deposit give the Paying Agent irrevocable instructions and authority to pay on the date set for redemption the Secondary Company Redemption Price to the holders of Company Preferred Stock to be redeemed as set forth in the Company Redemption Notice. Notwithstanding anything to the contrary contained in this Agreement, if Parent fails to make the Preferred Deposit as contemplated by the preceding sentence, the Company maypay, in its sole discretion, make all or any part of the Preferred Deposit accordance with the Paying Agent and may effect the Preferred Redemption if there is no Company Preferred Approval Event. (b) None of the Company or its Subsidiaries or any of their respective Representatives shall be required to make any payment or deposit any funds related thereto or execute or deliver any certificate, document, legal opinion, instrument or agreement, or agreement to any change or modification of any existing certification, document, instrument or agreement in connection therewith, or be bound by the terms of the Company Charter, all amounts that are required to be paid at the times they are required to be paid in connection with the exercise of such Special Optional Redemption Right, including the redemption price in respect thereof and all other fees and expenses that may be payable in connection therewith (and Parent shall cause the Surviving Entity to have immediately available funds necessary to take such actions) (the actions contemplated by clauses (i) and (ii), collectively, the “Preferred Stock Redemption”); provided, in each casefurther, that is effective prior the Surviving Entity shall be solely responsible for any and all liabilities arising out of or relating to the time that Parent or failure to pay any such amounts on a timely basis. Prior to Closing, the Company makes will, at Parent’s sole cost and expense, cooperate with Parent to the Preferred Deposit with the Paying Agent described in this Section 5.19 or that would be effective if either the Preferred Deposit or the Effective Time does not occur. (c) None of the Company or its Subsidiaries or any of their respective Representatives shall be extent required in connection with the Preferred Redemption to (i) pay any fee or incur any other cost or expense for which it has not received simultaneous or prior reimbursement or, with respect to immaterial costs or expenses, for which it is not indemnified under Section 5.18(d) by or on behalf of Parent or (ii) cause any director, officer, employee, stockholder or representative exercise of the Company or any of its Subsidiaries to incur any personal liabilitySpecial Optional Redemption Right. (d) Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no obligations to effect the Preferred Redemption or to take the other actions under this Section 5.19, and the Company Board of Directors shall have no obligation to approve any such action, if the Company Board of Directors at any time determines that (i) after giving effect to the Preferred Redemption (including the Preferred Deposit), the Company would reasonably be expected to be Insolvent, (ii) the surplus of the Company prior to the Preferred Redemption would reasonably be expected to be less than the amount of the Preferred Redemption or (iii) funds are otherwise not legally available for the Preferred Redemption, in each case as determined under the TBOC. (e) Parent shall, and shall cause each of its Subsidiaries to and shall use reasonable best efforts to cause their respective Representatives to cooperate with the Company as to all matters on the Preferred Redemption and shall provide to the Company all reasonably requested cooperation for the Preferred Redemption, including providing in the form reasonably requested by the Company, information regarding Parent, its Subsidiaries and the Surviving Company (including providing the information and documents contemplated by Section 21.314 of the TBOC) whether requested of Parent or its Representatives and which shall include financial and other information that assumes the completion of the Merger, the Preferred Redemption and the transactions contemplated hereby. (f) The Company shall, and shall cause each of its Subsidiaries to and shall use reasonable best efforts to cause their respective Representatives to, cooperate with Parent as to all matters on the Preferred Redemption and shall provide to Parent all reasonably requested cooperation for the Preferred Redemption, including providing in the form reasonably requested by Parent, information regarding the Company and its Subsidiaries (including providing the information and documents contemplated by Section 21.314 of the TBOC) whether requested of the Company or its Representatives and which shall include financial and other information that assumes the completion of the Merger, the Preferred Redemption and the transactions contemplated hereby.