Exchange Agreement
Category: Stock
Section 1. Exchange. At the Closing (as defined below), the Company shall exchange the existing Series A Preferred Stock specified on Schedule 1 attached hereto owned by each Investor for shares of the Series B Preferred Stock in the amount or amounts specified on Schedule 1 attached hereto, such Series B Preferred Stock to have the relative rights, preferences and designations set forth in Exhibit B attached hereto (the “Series B Certificate of Designations”). In accordance with the terms of the Series B Certificate of Designations, the Series B Preferred Stock shall be convertible into or otherwise exchangeable for Common Stock of the Company to the extent specified therein. The Company shall file a contemporaneous amendment and restatement of the Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock (the “Amended and Restated Series A Certificate of Designations”) in the form attached hereto as Exhibit A to make the Series A Preferred Stock rank pari passu with the Series B Preferred Stock and effect certain other amendments to the terms of such Series A Preferred Stock.
Section 2. Warrants. Contemporaneously with the execution of the Guaranty by the Guarantors and the delivery thereof to the Lender and the provision of the Deposit to the Lender, the Company shall issue to each Guarantor a warrant to purchase shares of the Company’s Series C Preferred Stock, par value $0.01 (the “Series C Preferred Stock”) in the form attached hereto as Exhibit D (each, a “Warrant”), and in the amount as set forth on Schedule 1 attached hereto. The exercise price per share for such Warrant shall be as set forth in the Warrant and on the terms and subject to the conditions set forth therein. The Series C Preferred Stock shall have the rights, preferences and designations set forth in the Certificate of Designations, Preferences and Rights of Series C Preferred Stock (the “Series C Certificate of Designations,” together with the Amended and Restated Series A Certificate of Designations and the Series B Certificate of Designations, the “Certificate of Designations”) in the form attached hereto as Exhibit C.
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