Common use of Series D Preferred Stock Clause in Contracts

Series D Preferred Stock. Effective from and after the Effective Time and until the Amendments (as defined in Section 2.2(b)) have been approved by the stockholders of the Company and filed by the Company with, and accepted by, the Delaware Secretary of State, Pillar I, as the sole holder of the Company’s outstanding Series D Convertible Preferred Stock, par value $0.01 per share (the “SERIES D PREFERRED STOCK”) hereby (i) irrevocably waives the right of the holders of the Series D Preferred Stock under Section 2.1 of the Certificate of Designations, Preferences and Rights of Series D Preferred Stock, as amended from time to time (the “SERIES D CERTIFICATE OF DESIGNATIONS”) to receive, in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Company (herein, a “LIQUIDATION”), an amount per share of Series D Preferred Stock equal to the Series D Original Issue Price (as defined in the Series D Certificate of Designations) plus any dividends accrued or declared but unpaid thereon to the extent such amount is greater than the amount that would have been payable with respect to such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation (the “SERIES D LIQUIDATION PREFERENCE RIGHT”) and (ii) irrevocably agrees that in accordance with Section 2.1 of the Certificate of Designations upon a Liquidation the holders of the Series D Preferred Stock shall receive under Section 2.1 of the Series D Certificate of Designations an amount per share of Series D Preferred Stock equal to the amount that would be payable with respect to such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation. In connection with this Section 2.1(A), and in accordance with Section 8 of the Series D Certificate of Designations, simultaneously upon the execution of this Agreement Pillar I, in its capacity as the holder of 100% of the issued and outstanding shares of Series D Preferred Stock, has delivered to the Company an irrevocable waiver of the Series D Liquidation Preference Right.

Series D Preferred Stock. Effective from and after If the Effective Time and until the Amendments (as defined in Section 2.2(b)) have been approved by the stockholders of the Company and filed by the Company with, and accepted by, the Delaware Secretary of State, Pillar I, as the sole holder of the Company’s outstanding Series D Convertible Preferred Stock, par value $0.01 per share (the “SERIES D PREFERRED STOCK”) hereby (i) irrevocably waives the right of the holders of Aggregate Consideration exceeds the Series D Preferred Stock under Section 2.1 of the Certificate of DesignationsE Aggregate Preference Amount, Preferences and Rights of Series D Preferred Stock, as amended from time to time (the “SERIES D CERTIFICATE OF DESIGNATIONS”) to receive, in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Company (herein, a “LIQUIDATION”), an amount per each share of Series D Preferred Stock equal of the Company, no par value per share, ("Series D Preferred") issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares) will be canceled and extinguished and be converted automatically into the right to receive the following and any additional shares of Parent Common Stock and/or Warrants as provided in Section 2.2(d): (A) Parent Common Stock. That number of shares of Parent Common Stock, which shall be computed by (1) dividing the Series D Original Issue Price Aggregate Preference Amount by the Aggregate Consideration (such quotient shall be referred to as defined in the "Series D Quotient"), and then (2) multiplying the Series D Certificate of DesignationsQuotient by the Aggregate Share Number, and then (3) plus any dividends accrued or declared but unpaid thereon to dividing by the extent such amount is greater than the amount that would have been payable with respect to such share had all shares of Total Series D Preferred Stock been converted into Common Stock pursuant to Section 4 Shares upon surrender of the Series D Certificate of Designations immediately prior to certificate representing such Liquidation (the “SERIES D LIQUIDATION PREFERENCE RIGHT”) and (ii) irrevocably agrees that in accordance with Section 2.1 of the Certificate of Designations upon a Liquidation the holders of the Series D Preferred Stock shall receive under Section 2.1 of the Series D Certificate of Designations an amount per share of Series D Preferred Stock equal to in the amount that would manner provided in Section 3.1(b); and (B) Warrants. That number of Warrants, which shall be payable with respect to computed by (1) multiplying the Series D Quotient by the Aggregate Warrant Number, and then (2) dividing by the Total Series D Shares upon surrender of the certificate representing such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to in the manner provided in Section 4 3.1(b). Notwithstanding any of the foregoing in this Section 2.2(c)(ii), in the event that the sum of the Series D Certificate E Aggregate Preference Amount and the Secondary Aggregate Preference Amount exceeds the Aggregate Consideration, the results reached in each of Designations immediately prior to 2.2(c)(ii)(A) Parent Common Stock and 2.2(c)(ii)(B) Warrants shall be independently reduced by multiplying each such Liquidation. In connection with this Section 2.1(A), and in accordance with Section 8 result by the ratio of (a) the Aggregate Consideration less the Series D Certificate of Designations, simultaneously upon E Aggregate Preference Amount divided by (b) the execution of this Agreement Pillar I, in its capacity as the holder of 100% of the issued and outstanding shares of Series D Preferred Stock, has delivered to the Company an irrevocable waiver of the Series D Liquidation Secondary Aggregate Preference RightAmount.

Series D Preferred Stock. Effective from and after the Effective Time and until the Amendments (as defined in Section 2.2(b)) have been approved by the stockholders of the Company and filed by the Company with, and accepted by, the Delaware Secretary of State, Pillar I, as the sole holder of the Company’s outstanding Series D Convertible Preferred Stock, par value $0.01 per share (the “SERIES D PREFERRED STOCK”) hereby If (i) irrevocably waives the right of the holders of the Series D Preferred Stock under Section 2.1 of the Certificate of Designations, Preferences and Rights of Series D Preferred Stock, as amended from time to time (the “SERIES D CERTIFICATE OF DESIGNATIONS”) to receive, in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Company (herein, a “LIQUIDATION”), an amount per share of Series D Preferred Stock equal to the Series D Original Issue Price (as defined in the Series D Certificate of Designations) plus any dividends accrued or declared but unpaid thereon to the extent such amount is greater than the amount that would have been payable with respect to such share had all shares of Series D Preferred Stock has not been converted into to Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation (the “SERIES D LIQUIDATION PREFERENCE RIGHT”5(a) and (ii) irrevocably agrees on or before March 5, 2004 or (ii) in the event that in accordance with Section 2.1 any other capital stock of the Certificate Corporation (or any securities convertible into or exercisable or exchangeable into capital stock of Designations the Corporation) is to be redeemed for any reason, upon a Liquidation the election (the "Series D Election") by the holders of the Series D Preferred Stock shall receive under Section 2.1 sixty-six and two-thirds of the Series D Certificate of Designations an amount per share of Series D Preferred Stock equal to the amount that would be payable with respect to such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation. In connection with this Section 2.1(A), and in accordance with Section 8 of the Series D Certificate of Designations, simultaneously upon the execution of this Agreement Pillar I, in its capacity as the holder of 100% of the issued and then outstanding shares of Series D Preferred Stock, has delivered the Corporation shall redeem all of the shares of Series D Preferred Stock by paying a per share sum equal to the Company Series D Liquidation Preference. The Series D Liquidation Preference shall be paid on a pari passu basis with the Series E Liquidation Preference (if the Series E Preferred Stock has elected to be redeemed pursuant to Section 8(c) below) and before any redemption payment is made in respect of any other capital stock of the Corporation (or any securities convertible into or exercisable or exchangeable into capital stock of the Corporation). The Corporation shall pay to each holder of Series D Preferred Stock (who has not converted pursuant to Section 5 prior to the date of such redemption) on the 90th day after the date of the Series D Election the Series D Liquidation Preference in cash in an irrevocable waiver amount equal to one-third of the Series D Liquidation Preference Rightand in 44 20 the form of a promissory note in an aggregate amount equal to two-thirds of the Series D Liquidation Preference. The note shall bear interest, compounded quarterly, through the date of payment, at the Defined Rate (as defined herein) on the Initial Redemption Date (as defined below), such rate to be computed on the basis of a 360-day year. Payments on the promissory note shall be payable in two annual installments on each of the first and second anniversaries of the Initial Redemption Date (each a "Redemption Date") for such Series D Preferred Stock unless such anniversary falls on a day which is not a business day in San Francisco, California, in which case the applicable redemption installment shall be due and payable on the next business day.

Series D Preferred Stock. Effective from and after the Effective Time and until the Amendments (as defined in Section 2.2(b)) have been approved by the stockholders of the Company and filed by the Company with, and accepted by, the Delaware Secretary of State, Pillar I, as the sole holder of the Company’s outstanding Series D Convertible Preferred Stock, par value $0.01 per share (the “SERIES D PREFERRED STOCK”) hereby (i) irrevocably waives the right of the holders of the Series D Preferred Stock under Section 2.1 of the Certificate of Designations, Preferences and Rights of Series D Preferred Stock, as amended from time to time (the “SERIES D CERTIFICATE OF DESIGNATIONS”) to receive, in In the event of a any voluntary or involuntary liquidation, dissolution or winding up of the Company Corporation, the holders of shares of Series D Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, after and subject to payment in full of all amounts required to be distributed to the holders of Series E Preferred Stock, Series F Preferred Stock and any other class or series of stock of the Corporation ranking on liquidation prior and in preference to the Series A, B and D Preferred Stock (hereinsuch Series E Preferred Stock, a “LIQUIDATION”)Series F Preferred and other stock being collectively referred to as "Senior to D Preferred Stock") but before any payment shall be made to the holders of Series A and B Preferred Stock, Common Stock or any other class or series of stock ranking on liquidation junior to the Series D Preferred Stock (such Series A and Series B Preferred Stock, Common Stock and other stock being collectively referred to as "Junior to D Stock") by reason of their ownership thereof, an amount per equal to the greater of (A) $6.00 for each share of Series D Preferred Stock equal then held by them (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) or (B) that amount which they would have received had they converted each share of Series D Original Issue Price (as defined in Preferred Stock held by them on the Series D Certificate date of Designations) plus such liquidation, dissolution, or winding up into Common Stock on such date. If upon any dividends accrued such liquidation, dissolution or declared but unpaid thereon winding up of the Corporation the remaining assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the extent such amount is greater than the amount that would have been payable with respect to such share had all holders of shares of Series D Preferred Stock been converted into Common Stock pursuant the full amount to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation (the “SERIES D LIQUIDATION PREFERENCE RIGHT”) and (ii) irrevocably agrees that in accordance with Section 2.1 of the Certificate of Designations upon a Liquidation which they shall be entitled, the holders of shares of Series D Preferred Stock and any class or series of stock ranking on liquidation on a parity with the Series D Preferred Stock shall receive under Section 2.1 share ratably in any distribution of the Series D Certificate remaining assets and funds of Designations an amount per share of Series D Preferred Stock equal the Corporation in proportion to the amount that respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation. In connection with this Section 2.1(A), and were paid in accordance with Section 8 of the Series D Certificate of Designations, simultaneously upon the execution of this Agreement Pillar I, in its capacity as the holder of 100% of the issued and outstanding shares of Series D Preferred Stock, has delivered to the Company an irrevocable waiver of the Series D Liquidation Preference Rightfull.

Series D Preferred Stock. Effective from and after (i) In the Effective Time and until event the Amendments (as defined in Section 2.2(b)) have been approved by the stockholders of the Company and filed by the Company withCorporation voluntarily or involuntarily liquidates, and accepted bydissolves or winds up, the Delaware Secretary of State, Pillar I, as the sole holder of the Company’s outstanding Series D Convertible Holders at the time shall be entitled to receive liquidating distributions in an amount equal to the Series D Liquidation Preference per share of Series D Preferred Stock, par value $0.01 per share (before any distribution of assets is made to or set aside for the “SERIES D PREFERRED STOCK”) hereby (i) irrevocably waives the right holders of the holders Common Stock or any other Series D Junior Securities. (ii) After payment of the full amount of the liquidation distribution set forth in Section 5(b)(i), the Series D Holders shall be entitled to receive additional liquidating distributions in such amounts as the Series D Holders would be entitled to receive if all of the Series D Preferred Stock under Section 2.1 of were converted solely and directly into Common Stock by the Certificate of Designations, Preferences and Rights of Series D Preferred Stock, as amended from time Holders (without regard to time (the “SERIES D CERTIFICATE OF DESIGNATIONS”Applicable Ownership Limit) to receive, in the event of a voluntary or involuntary immediately before such liquidation, dissolution or winding winding-up. (iii) In the event the assets of the Corporation available for distribution (or proceeds from the sale thereof) to stockholders upon any liquidation, dissolution or winding-up of the Company (hereinaffairs of the Corporation, a “LIQUIDATION”)whether voluntary or involuntary, an amount per share of Series D Preferred Stock equal shall be insufficient to pay in full the Series D Original Issue Price (as defined in the Series D Certificate of Designationsamounts payable pursuant to Section 5(b)(i) plus any dividends accrued or declared but unpaid thereon to the extent such amount is greater than the amount that would have been payable with respect to such share had all outstanding shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation (the “SERIES D LIQUIDATION PREFERENCE RIGHT”) and (ii) irrevocably agrees that in accordance with Section 2.1 of the Certificate of Designations upon a Liquidation the holders of the Series D Preferred Stock shall receive under Section 2.1 of and the corresponding amounts payable on any Series D Parity Securities, the Series D Certificate Holders and the holders of Designations an amount per share of such Series D Preferred Stock equal Parity Securities shall share ratably in any distribution of assets of the Corporation in proportion to the amount that full respective liquidating distributions to which they would otherwise be payable respectively entitled. (iv) For purposes of this Section 5(b), the Corporation’s consolidation or merger with respect to such share had or into any other entity, the consolidation or merger of any other entity with or into the Corporation, or the sale of all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 or substantially all of the Series D Certificate of Designations immediately prior to such Liquidation. In connection with this Section 2.1(A)Corporation’s assets, and in accordance with Section 8 of the Series D Certificate of Designationsproperty or business will not constitute its liquidation, simultaneously upon the execution of this Agreement Pillar I, in its capacity as the holder of 100% of the issued and outstanding shares of Series D Preferred Stock, has delivered to the Company an irrevocable waiver of the Series D Liquidation Preference Rightdissolution or winding up.

Series D Preferred Stock. Effective from (i) From and after the Effective Time Date, so long as any shares of Series D Preferred Stock are outstanding, the Corporation shall not declare, pay or set apart for payment any dividend or make any Distribution on any Common Stock, unless at the time of such dividend or Distribution the Corporation simultaneously pays a non-cumulative dividend or makes a Distribution, which non-cumulative dividend or Distribution shall be payable in cash or the same securities or other assets or other property as is paid to holders of Common Stock, on each outstanding share of Series D Preferred Stock in an amount equal to the product of (A) any per share dividend or Distribution paid on the Common Stock multiplied by (B) a fraction, (I) the numerator of which is $1,000 and until (II) the Amendments denominator of which is the Applicable Conversion Price. Notwithstanding the provisions of Section 10 hereof, if the Corporation pays a dividend or makes a Distribution that causes it to make a payment to Series D Holders pursuant to this Section 4(b)(i), no adjustment to the Conversion Price under Section 10 shall be made with respect to such dividend or Distribution. (ii) Each dividend payable pursuant to Section 4(b)(i) will be payable to Series D Holders of record as defined they appear in Section 2.2(b)) have been approved by the stockholders records of the Company and filed by Corporation on the Company with, and accepted by, the Delaware Secretary applicable Record Date. (iii) So long as any shares of State, Pillar I, as the sole holder of the Company’s outstanding Series D Convertible Preferred StockStock remain outstanding, par value $0.01 per share (the “SERIES D PREFERRED STOCK”) hereby (i) irrevocably waives the right of the holders if all dividends on all outstanding shares of the Series D Preferred Stock under Section 2.1 have not been declared and paid in full, or declared and sufficient funds set aside therefor, the Corporation shall not, directly or indirectly, (x) declare or pay dividends with respect to, or make any distributions on, or directly or indirectly, redeem, purchase or acquire any of the Certificate of Designations, Preferences and Rights of its Series D Preferred StockJunior Securities or (y) directly or indirectly, as amended from time to time (the “SERIES D CERTIFICATE OF DESIGNATIONS”) to receiveredeem, in the event of a voluntary purchase or involuntary liquidation, dissolution or winding up of the Company (herein, a “LIQUIDATION”), an amount per share of Series D Preferred Stock equal to the Series D Original Issue Price (as defined in the Series D Certificate of Designations) plus acquire any dividends accrued or declared but unpaid thereon to the extent such amount is greater than the amount that would have been payable with respect to such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation (the “SERIES D LIQUIDATION PREFERENCE RIGHT”) and (ii) irrevocably agrees that in accordance with Section 2.1 of the Certificate of Designations upon a Liquidation the holders of the Series D Preferred Stock shall receive or any of its Series D Parity Securities, other than, in each case, (i) redemptions, purchases or other acquisitions of Series D Junior Securities or Series D Parity Securities in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants or in connection with a dividend reinvestment plan, in each case in the ordinary course of business and consistent with past practice, (ii) any declaration of a dividend in connection with any stockholders’ rights plan, or the issuance of rights, stock or other property under Section 2.1 any stockholders’ rights plan, or the redemption or repurchase of rights pursuant thereto, (iii) conversions or exchanges of Series D Junior Securities into or for Series D Junior Securities or conversions or exchanges of Series D Parity Securities into or for Series D Junior Securities or Series D Parity Securities and (iv) any purchase of fractional interests in shares of the Corporation’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged. If dividends payable for any dividend payment date are not paid in full, or declared and sufficient funds set aside therefor on the shares of the Series D Certificate of Designations an amount per share of Series D Preferred Stock equal to the amount that would be payable with respect to such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation. In connection with this Section 2.1(A), and in accordance with Section 8 of the Series D Certificate of Designations, simultaneously upon the execution of this Agreement Pillar I, in its capacity as the holder of 100% of the there are issued and outstanding shares of Series D Parity Securities with the same dividend payment date (or, in the case of Series D Parity Securities having dividend payment dates different from the dividend payment dates applicable to the Series D Preferred Stock, has delivered on a dividend payment date falling within a dividend period applicable to such dividend payment date with respect to the Company an irrevocable waiver Series D Preferred Stock), then all dividends declared on shares of the Series D Liquidation Preference RightPreferred Stock and such Series D Parity Securities on such date or dates, as the case may be, shall be declared pro rata so that the respective amounts of such dividends shall bear the same ratio to each other as full dividends per share payable on the shares of the Series D Preferred Stock and all such Series D Parity Securities otherwise payable on such dividend payment date (or, in the case of Series D Parity Securities having dividend payment dates different from the dividend payment dates applicable to the Series D Preferred Stock, on a dividend payment date falling within a dividend period applicable to such dividend payment date with respect to the Series D Preferred Stock) (subject to such dividends on such Series D Parity Securities having been declared by the Board of Directors out of legally available funds and including, in the case of any such Series D Parity Securities that bear cumulative dividends, all accrued but unpaid dividends) bear to each other. (iv) If the Automatic Conversion Date is prior to any Record Date with respect to dividends payable to Series D Holders, the Series D Holders will not have the right to receive any dividends payable on such dividend payment date with respect to the applicable dividend period. If the Automatic Conversion Date is after any Record Date but prior to the dividend payment date with respect to dividends payable to Series D Holders, the Series D Holders will have the right to receive dividends payable on such dividend payment date with respect to the applicable dividend period.

Series D Preferred Stock. Effective from and after the Effective Time and until the Amendments (as defined in Section 2.2(b)) have been approved by the stockholders of the Company and filed by the Company with, and accepted by, the Delaware Secretary of State, Pillar I, as the sole holder of the Company’s outstanding Series D Convertible Preferred StockHolders will not have any voting rights, par value $0.01 per share (the “SERIES D PREFERRED STOCK”) hereby except as required under Delaware law and except that: (i) irrevocably waives so long as any shares of Series D Preferred Stock are outstanding, the right vote or consent of the holders Series D Holders owning a majority of the shares of Series D Preferred Stock at the time outstanding, voting as a single class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary, whether or not such approval is required by Delaware law, for effecting or validating (A) any matter that requires the approval of the Series D Holders in accordance with applicable law; (B) any amendment, alteration or repeal (including by means of a merger, consolidation or otherwise) of any provision of the Certificate of Incorporation (including this Certificate of Designations) or the Corporation’s bylaws that would alter or change the rights, preferences or privileges of the Series D Preferred Stock under Section 2.1 so as to affect them adversely; (C) any amendment or alteration (including by means of a merger, consolidation or otherwise) of the Corporation’s Certificate of DesignationsIncorporation to authorize, Preferences and Rights or create, or increase the authorized amount of, any shares of, or any securities convertible into shares of, any class or series of the Corporation’s capital stock ranking senior to the Series D Preferred Stock, as amended from time to time (the “SERIES D CERTIFICATE OF DESIGNATIONS”) to receive, Stock in the event payment of a voluntary dividends or involuntary in the distribution of assets on any liquidation, dissolution or winding up of the Company Corporation; or (hereinD) the consummation of a binding share exchange or reclassification involving the Series D Preferred Stock, a “LIQUIDATION”)merger or consolidation of the Corporation with another entity, an amount per share or the sale of all or substantially all of the property and assets of the Corporation; provided, that, the Series D Holders will have no right to vote under this Section 12(b)(i)(D) if in each case (x) the Series D Preferred Stock equal remains outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, is converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, that is an entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, and (y) such Series D Preferred Stock remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, taken as a whole, as are not less favorable to the holders thereof than the rights, preferences, privileges and voting powers of the Series D Preferred Stock, taken as a whole. (ii) For the avoidance of doubt, any increase in the amount of the authorized preferred stock or any securities convertible into preferred stock or the creation and issuance, or an increase in the authorized or issued amount, of any series of preferred stock or any securities convertible into preferred stock ranking junior to the Series D Original Issue Price Preferred Stock with respect to the payment of dividends (as defined whether such dividends are cumulative or non-cumulative) will not, in and of itself, be deemed to adversely affect rights, preferences or privileges of the Series D Certificate Preferred Stock and, notwithstanding any provision of DesignationsDelaware law, the Series D Holders will have no right to vote solely by reason of such an increase, creation or issuance. (iii) plus Notwithstanding the foregoing, Series D Holders shall not have any dividends accrued voting rights if, at or declared but unpaid thereon prior to the extent such amount is greater than effective time of the amount that would have been payable act with respect to which such share had vote would otherwise be required, all outstanding shares of Series D Preferred Stock shall have been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation (the “SERIES D LIQUIDATION PREFERENCE RIGHT”) and (ii) irrevocably agrees that in accordance with Section 2.1 of the Certificate of Designations upon a Liquidation the holders of the Series D Preferred Stock shall receive under Section 2.1 of the Series D Certificate of Designations an amount per share of Series D Preferred Stock equal to the amount that would be payable with respect to such share had all shares of Series D Preferred Stock been converted into Common Stock pursuant to Section 4 of the Series D Certificate of Designations immediately prior to such Liquidation. In connection with this Section 2.1(A), and in accordance with Section 8 of the Series D Certificate of Designations, simultaneously upon the execution of this Agreement Pillar I, in its capacity as the holder of 100% of the issued and outstanding shares of Series D Preferred Stock, has delivered to the Company an irrevocable waiver of the Series D Liquidation Preference Right.