Common use of Sale and Issuance of Series D Preferred Stock Clause in Contracts

Sale and Issuance of Series D Preferred Stock. (a) The Company shall adopt and file with the Secretary of State of Delaware on or before the Initial Closing (as defined below) the Fifth Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit A (the “Restated Certificate”). (b) On or prior to the Initial Closing, the Company shall have authorized (i) the sale and issuance to the Investors of the Shares and (ii) the issuance of the shares of Common Stock of the Company to be issued upon conversion of the Shares (the “Conversion Shares”), in each case as set forth herein. The Shares and the Conversion Shares shall have the rights, preferences, privileges and restrictions set forth in the Restated Certificate. (c) Subject to the terms and conditions of this Agreement, each Investor agrees, severally and not jointly, to purchase at the applicable Closing (as defined below) pursuant to Section 1.2(a) and (b) and the Company agrees to sell, issue and deliver to each Investor at such Closing, at a purchase price per share of $10.00, that number of Shares set forth opposite such Investor’s name on Schedule I hereto, in consideration of the cash to be paid by such Investors, as set forth on Schedule I hereto.

Sale and Issuance of Series D Preferred Stock. (a) The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Initial Closing (as defined belowin Section 1.2) the Fifth Second Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit A (the “Restated Certificate”"RESTATED CERTIFICATE"). (b) On or prior to the Initial Closing, the Company shall have authorized (i) the sale and issuance to the Investors Investor of up to 2,747,253 shares (collectively, the "SERIES D PREFERRED SHARES") of the Shares Company's Series D Preferred Stock, $0.01 par value per share (the "SERIES D PREFERRED STOCK"), and (ii) the issuance of up to 2,747,253 shares (collectively, the shares of Common Stock "CONVERSION SHARES") of the Company to be issued Company's Common Stock, $0.01 par value per share (the "COMMON STOCK") upon conversion of the Shares (the “Conversion Series D Preferred Shares”), in each case as set forth herein. The Series D Preferred Shares and the Conversion Shares shall have the rights, preferences, privileges and restrictions set forth in the Restated Certificate. (c) Subject to the terms and conditions of this Agreement, each the Investor agrees, severally and not jointly, agrees to purchase at the applicable Initial Closing (as defined below) pursuant to Section 1.2(a) and (b) and the Company agrees to sell, sell and issue and deliver to each the Investor at such the Initial Closing, at a the Series D Preferred Shares for an aggregate purchase price of $25,000,002.30 ($9.10 per share of $10.00(per share, that number of Shares set forth opposite such Investor’s name on Schedule I hereto, in consideration of the cash to be paid by such Investors, as set forth on Schedule I hereto"SERIES D PURCHASE PRICE")).

Sale and Issuance of Series D Preferred Stock. (a) The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Initial first Closing (as defined below) the Fifth Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit A (the “"Restated Certificate”"). (b) On or prior to the Initial Closing, the Company shall have authorized (i) the sale and issuance to the Investors of the Shares and (ii) the issuance of the shares of Common Stock of the Company to be issued upon conversion of the Shares (the “Conversion Shares”), in each case as set forth herein. The Shares and the Conversion Shares shall have the rights, preferences, privileges and restrictions set forth in the Restated Certificate. (c) Subject to the terms and conditions of this Agreement, each Investor agrees, severally and not jointlyseverally, to purchase at the applicable Closing (as defined below) pursuant to Section 1.2(a) and (b) and the Company agrees to sell, sell and issue and deliver to each Investor at such Closing, at a purchase price per share of $10.00, the Closing that number of Shares shares of the Company's Series D Preferred Stock set forth opposite such Investor’s 's name on Schedule I heretoA hereto for the purchase price of $3.00 per share. (c) The Company may sell authorized but unissued shares of Series D Preferred Stock not sold at the Closing referred to in Section 1.2 below at one or more additional closings to any purchaser who makes the representations set forth in Section 3.8 hereof at a price of $3.00 per share, provided that the agreements with respect to such sales are executed not later than December 29, 1991 and provided further that the terms and conditions in consideration of the cash such agreement are no more favorable to such purchaser than those contained in this Agreement. Any such purchaser shall be deemed to be paid by such Investorsan Investor for purposes of this Agreement, as set forth on Schedule I heretoand the shares so sold shall be deemed to have been acquired hereunder.

Sale and Issuance of Series D Preferred Stock. (a) The Company shall adopt and file with the Secretary of State of Delaware on or before the Initial Closing (as defined below) the Fifth Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit EXHIBIT A (the “"Restated Certificate”"). (b) On or prior to the Initial ClosingClosing (as defined below), the Company shall have authorized (i) the sale and issuance to the Investors of the Shares Series D Preferred Stock and (ii) the issuance of the shares of Common Stock of the Company to be issued upon conversion of the Shares Series D Preferred Stock (the “"Conversion Shares”"), in each case as set forth herein. The Shares Series D Preferred Stock and the Conversion Shares shall have the rights, preferences, privileges and restrictions set forth in the Restated Certificate. (c) Subject to the terms and conditions of this Agreement, each Investor agrees, severally and not jointly, to purchase at the applicable Closing (as defined below) pursuant to Section 1.2(a) and (b) and the Company agrees to sell, sell and issue and deliver to each Investor at such the Closing, at a purchase price per share of $10.00, that number of Shares shares of the Company's Series D Preferred Stock set forth opposite such Investor’s 's name on Schedule I hereto, in consideration of SCHEDULE A hereto for the cash to be paid by such Investors, as purchase price set forth on Schedule I heretothereon.