Common use of Deemed Liquidations Clause in Contracts

Deemed Liquidations. In the case of (i) a consolidation or merger of the Corporation (other than a consolidation or merger upon consummation of which the holders of voting securities of the Corporation immediately prior to such transaction, continue to own directly or indirectly not less than a majority of the voting power of the surviving corporation) or a sale of all or substantially all of the assets of the Corporation or other similar transaction and (ii) either receipt by the Corporation of consideration less than the equivalent of $1.00 per share (appropriately adjusted for stock splits, stock dividends and the like) of Series A Preferred Stock plus any declared but unpaid dividends or receipt by the Corporation of consideration less than the equivalent of $3.28 per share (appropriately adjusted for stock splits, stock dividends and the like) of Series B Preferred Stock plus any declared but unpaid dividends, such event shall be regarded, at the option of the holders of a majority of the then outstanding shares of Series Preferred Stock as a liquidation, dissolution or winding up of the affairs of the Corporation within the meaning of this Section 2. Notwithstanding the foregoing, each holder of Series Preferred Stock shall have the right to elect the benefits of the provisions of Section 4(h) hereof in lieu of receiving payment in liquidation, dissolution or winding up of the Corporation pursuant to this Section 2(b). For purposes of this Section 2 and Section 6 hereof, a sale of substantially all of the assets of the Corporation shall mean (x) the sale or other disposition other than in the ordinary course of business of more than 50% of such assets, as determined by reference to either (A) the book value, or (B) the fair market value, of such assets, or (y) any issuance of Common Stock by the Corporation or transfer of Common Stock by the holder thereof to any person or persons acting in concert or a group of affiliated persons, which issuance or transfer results in such person or persons or group holding in the aggregate more than 50% of the issued and outstanding Common Stock after giving effect to such issuance or transfer