Common use of Liquidation Payment Clause in Contracts

Liquidation Payment. Subject to the rights of any series of preferred stock which by its terms expressly ranks senior to the Series E Preferred Stock in respect of the right to receive payment of the distribution of assets upon liquidation of the Corporation which may from time to time come into existence, in the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, then out of the assets of the Corporation before any distribution or payment to the holders of Junior Stock (as to dividends or upon liquidation, dissolution or winding up), but subject to paragraph (b) below, the holders of the Series E Preferred Stock shall be entitled to be paid out of assets of the Corporation legally available for distribution to stockholders, in respect of each share of Series E Preferred Stock, the greater of (i) the Liquidation Preference, plus accrued and unpaid dividends whether or not declared, if any (or a pro rata portion thereof with respect to fractional shares), to the date of final distribution and (ii) the amount that such holder would have been entitled to receive in respect of the Common Stock into which such share of Series E Preferred Stock could have been converted assuming that, immediately prior to such event of liquidation, dissolution or winding up of the Corporation, all holders of Series E Preferred Stock had, pursuant to, and in accordance with, Section 6, converted all shares of Series E Preferred Stock into shares of Common Stock (but, for purposes of this clause (ii), without taking into account any limitations or restrictions on the convertibility of the shares of Series E Preferred Stock and without taking into account any adjustment to the Conversion Ratio pursuant to Section 6(g)). Except as provided in this Section 5(a), the holders of the Series E Preferred Stock shall be entitled to no other or further distribution in connection with such liquidation, dissolution or winding up and shall have no further right or claim to any of the remaining assets of the Corporation. Absent an actual liquidation, dissolution or winding up of the Corporation, no merger or consolidation, share exchange, sale of all or substantially all of the assets of the Corporation or any other similar reorganization or change of control transaction involving the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation for purposes of this Section 5.

Liquidation Payment. Subject to the rights of any series of preferred stock which by its terms expressly ranks senior to the Series E Preferred Stock in respect of the right to receive payment of the distribution of assets upon liquidation of the Corporation which may from time to time come into existence, in In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntaryinvoluntary (each, then out of the assets of the Corporation before a “Liquidation Event”), and prior and in preference to any distribution or payment of any of the assets or surplus funds of the Corporation to the holders of the Common Stock or any other Convertible Preferred Stock Junior Stock (as to dividends or upon liquidation, dissolution or winding up), but subject to paragraph (b) belowSecurities by reason of their ownership thereof, the holders of the Series E Convertible Preferred Stock Stockholders shall be entitled to be paid out of the assets of the Corporation legally available for distribution to stockholders, in respect of each an amount per share of Series E Convertible Preferred StockStock (such amount, the “Liquidation Payment”) equal to the greater of (i) the Liquidation Preferenceall accrued but unpaid Convertible Preferred Dividends in respect of such share of Convertible Preferred Stock, plus accrued and unpaid dividends whether or not declared, if any (or a pro rata portion thereof with respect to fractional shares), an amount equal to the date Convertible Preferred Original Issue Price in respect of final distribution such share and (ii) the per share amount that of all cash, securities and other property (such securities or other property having a value equal to its fair market value as reasonably determined by the Board of Directors) to be distributed in respect of the Common Stock such holder would have been entitled to receive in respect of the Common Stock into which such share its shares of Series E Convertible Preferred Stock could have been had it converted assuming that, such shares of Convertible Preferred Stock immediately prior to the date fixed for such event Liquidation Event. If, upon the occurrence of liquidation, dissolution or winding up of the Corporation, all holders of Series E Preferred Stock had, pursuant to, and in accordance with, Section 6, converted all shares of Series E Preferred Stock into shares of Common Stock (but, for purposes of this clause (ii), without taking into account any limitations or restrictions on the convertibility of the shares of Series E Preferred Stock and without taking into account any adjustment to the Conversion Ratio pursuant to Section 6(g)). Except as provided in this Section 5(a)a Liquidation Event, the holders assets and surplus funds of the Series E Preferred Stock shall be entitled to no other or further distribution in connection with such liquidation, dissolution or winding up and shall have no further right or claim to any of the remaining assets of the Corporation. Absent an actual liquidation, dissolution or winding up of the Corporation, no merger or consolidation, share exchange, sale of all or substantially all of the assets of the Corporation or any other similar reorganization or change of control transaction involving the Corporation shall be deemed insufficient to make payment in full to all Convertible Preferred Stockholders and holders of Convertible Preferred Stock Parity Securities, if any, of all Liquidation Payments, then such assets and surplus funds shall be distributed among the Convertible Preferred Stockholders ratably in proportion to the full accrued but unpaid Liquidation Payments to which they would otherwise be respectively entitled to receive pursuant to this Section 3(a). Prior to the occurrence of a liquidationLiquidation Event, dissolution the Corporation shall give each holder of record of Convertible Preferred Stock written notice (the “Liquidation Event Notice”) not later than fifteen (15) days prior to the stockholders’ meeting called to approve such transaction or winding up event, or fifteen (15) days prior to the closing of such transaction or event, whichever is earlier, and shall also notify such holders in writing of the Corporation for purposes final approval of such transaction or event. The first of such notices shall describe the material terms and conditions of the impending transaction or event and the provisions of this Section 53(a). The transaction or event shall not occur sooner than 15 days after the Corporation has given the first notice provided for herein.

Liquidation Payment. Subject to the rights of any series of preferred stock which by its terms expressly ranks senior to the Series E Preferred Stock in respect of the right to receive payment of the distribution of assets upon liquidation of the Corporation which may from time to time come into existence, in 1. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporationaffairs of the Corporation (a “Liquidation Event”) or a Series 1 Deemed Liquidation Event, whether voluntary or involuntary, each Holder of shares of Series 1 Senior Preferred then outstanding shall be entitled to require the Corporation to redeem the Series 1 Senior Preferred held by such Holder out of the assets of the Corporation available for distribution to its stockholders at a redemption price in cash (the “Liquidation Payment”) equal to the sum of (x) the Liquidation Preference of the Series 1 Senior Preferred to be redeemed plus (y) the aggregate amount of any accrued and unpaid dividends thereon as of the end of the immediately preceding Dividend Period (whether or not declared and whether or not the payment thereof is otherwise permitted by the DGCL or otherwise), plus (z) an amount equal to any accrued dividends for the period, if any, from, and including, the end of the last Dividend Period ending immediately prior to such redemption date to, but excluding, such redemption date (whether or not declared and whether or not the payment thereof is otherwise permitted by the DGCL or otherwise), with any such dividend calculated as described in Section (B) above but based on the Cash Dividend Rate in lieu of the applicable Dividend Rate, before any distribution shall be made or payment any assets distributed in respect of Junior Securities to the holders of any Junior Securities including, without limitation, Common Stock (as to dividends of the Corporation. 2. If upon any Liquidation Event or upon liquidation, dissolution or winding up), but subject to paragraph (b) belowSeries 1 Deemed Liquidation Event, the holders amounts payable with respect to the Series 1 Senior Preferred under Section (C)(1) above are not paid in full, the Holders of the Series E 1 Senior Preferred Stock shall be entitled to be paid out and the Parity Securities will share equally and ratably in any distribution of assets of the Corporation legally available for distribution to stockholders, in respect of each share of Series E Preferred Stock, the greater of (i) the Liquidation Preference, plus accrued and unpaid dividends whether or not declared, if any (or a pro rata portion thereof with respect to fractional shares), proportion to the date of final distribution and (ii) the amount that such holder respective amounts which would have been entitled to receive otherwise be payable in respect of the Common Stock into which shares held by them upon such share distribution if all amounts payable on or with respect to such shares were paid in full. 3. Each of the following events shall be considered a “Series E Preferred Stock could have been converted assuming that, immediately 1 Deemed Liquidation Event” unless the Required Holders elect otherwise by written notice sent to the Corporation at least one (1) day prior to the effective date of any such event event: (a) the occurrence of liquidation, dissolution or winding up a Change of the Corporation, all holders of Series E Preferred Stock had, pursuant to, and in accordance with, Section 6, converted all shares of Series E Preferred Stock into shares of Common Stock Control; (but, for purposes of this clause (ii), without taking into account any limitations or restrictions on the convertibility of the shares of Series E Preferred Stock and without taking into account any adjustment to the Conversion Ratio pursuant to Section 6(g)). Except as provided in this Section 5(a), the holders of the Series E Preferred Stock shall be entitled to no other or further distribution in connection with such liquidation, dissolution or winding up and shall have no further right or claim to any of the remaining assets of the Corporation. Absent an actual liquidation, dissolution or winding up of the Corporation, no merger or b) a consolidation, share exchangemerger, sale reorganization or similar transaction or series of related transactions; (1) a sale, lease or other disposition, through one transaction or a series of related transactions, of all or substantially all of the assets of the Corporation and its Restricted Subsidiaries, taken as a whole, or (2) the transfer or grant, in one transaction or a series of related transactions, of an exclusive license to all or substantially all of the Intellectual Property of the Corporation and its Restricted Subsidiaries, taken as a whole; and (d) the sale or other transfer, through one transaction or a series of related transactions, of all or substantially all of the issued and outstanding capital stock of the Corporation to any other corporation, or any other similar reorganization entity or change person, other than a parent or wholly owned Restricted Subsidiary of control transaction involving the Corporation; provided that, with respect to clauses (b) and (d) above, the outstanding shares of capital stock owned by the stockholders of the Corporation immediately prior do not continue to represent, or are not converted into or exchanged for shares of capital stock that represent, at least a majority of the total voting power of Voting Stock of the surviving or acquiring entity. 4. The Corporation shall not have the power to effect a Series 1 Deemed Liquidation Event unless the agreement or plan of merger or consolidation, sale agreement or other definitive documentation for such transaction (the “Sale Agreement”) provides that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Section (C)(1) and Section (C)(2) and the Holders shall receive in cash the full Liquidation Payment due on the Series 1 Senior Preferred; provided that, if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “Additional Consideration”), the Sale Agreement will further provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) is allocated among the holders of capital stock of the Corporation in accordance with Sections (C)(1) and (2) as if the Initial Consideration were the only consideration payable in connection with such Series 1 Deemed Liquidation Event or Change of Control, and (b) any Additional Consideration that becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies is allocated among the holders of capital stock of the corporation in accordance with Sections (C)(1) and (2) after taking into account the previous payment of the Initial Consideration as part of the same transaction; provided, further that consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with any such Series 1 Deemed Liquidation Event or Change of Control shall be deemed to be Additional Consideration. 5. In the event of a liquidationSeries 1 Deemed Liquidation Event, if the Corporation does not commence a dissolution or winding up of the Corporation under the DGCL within thirty (30) days after such Series 1 Deemed Liquidation Event, then (a) the Corporation shall send a Redemption Notice to each Holder of Series 1 Senior Preferred no later than the thirtieth (30th) day after the Series 1 Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (b) to require the redemption of such shares of Series 1 Senior Preferred, and (b) if any such Holder so requests in a written instrument delivered to the Corporation not later than twenty-five (25) days after receipt of such written notice from the Corporation of the occurrence of such Series 1 Deemed Liquidation Event, the Corporation shall use Net Cash Proceeds received by the Corporation for purposes such Series 1 Deemed Liquidation Event, all to the extent permitted by the DGCL (the “Available Proceeds”), on the sixtieth (60th) day after such Series 1 Deemed Liquidation Event, to redeem all of such Holder’s outstanding shares of Series 1 Senior Preferred at a price per share equal to the Liquidation Payment. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Series 1 Senior Preferred to be redeemed, the Corporation shall ratably redeem each requesting Holder’s shares of Series 1 Senior Preferred to the fullest extent of such Available Proceeds, and shall redeem the remaining shares as soon as it may lawfully do so under the DGCL. The provisions of Section (D)(2) shall apply, with such necessary changes in the details thereof as are necessitated by the context, to the redemption of the Series 1 Senior Preferred pursuant to this Section 5(C)(5). Prior to any such redemption, the Corporation shall not expend or dissipate the consideration received for such Series 1 Deemed Liquidation Event, except to discharge expenses incurred in connection with such Series 1 Deemed Liquidation Event or in the ordinary course of business. 6. In the event of any Series 1 Deemed Liquidation Event in which the Corporation is not the continuing or surviving corporation or entity, proper provision shall be made so that such continuing or surviving corporation or entity shall agree to carry out and observe the obligations of the Corporation hereunder and under the other documentation with the Holders with respect to the Series 1 Senior Preferred.