Common use of Deemed Liquidation Events Clause in Contracts

Deemed Liquidation Events. Each of the following events shall be treated as a Liquidation Event, unless the holders of (i) a majority of the voting power of the outstanding shares of Preferred Stock voting together as a single class (a "Majority Interest") and (ii) a majority of the outstanding shares of Series E Preferred Stock (the "Series E Deemed Liquidation Consent") elect otherwise; provided however, if the amounts available for distribution by the Corporation to holders of Series D Preferred Stock upon such Liquidation Event would not be sufficient to pay the aggregate Series D Preference Amount if such event was treated as a Liquidation Event, such waiver shall also require the written election of the holders of not less than sixty percent (60%) of the Series D Preferred Stock then outstanding (the "Series D Deemed Liquidation Consent"), provided further, that the Series E Deemed Liquidation Consent and the Series D Deemed Liquidation Consent shall not be required in connection with a Change of Control Transaction in which (i) the holders of capital stock of the Corporation immediately prior to such Change of Control Transaction continue to hold at least thirty five percent (35%) of the voting power of the capital stock of the surviving business entity in equal proportion to their holdings prior to such Change of Control Transaction, (ii) no cash consideration is paid to any holder of capital stock of the Corporation in such holder's capacity as a holder of capital stock of the Corporation, (iii) the acquirer in such transaction does not have an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") and (iv) there is no readily available public market for the capital stock received by the holders of capital stock of the Corporation in connection with such transaction: (A) any merger or consolidation of the Corporation into or with another business entity (except one in which the shares of capital stock of the Corporation immediately prior to such merger or consolidation continue to represent at least a majority of the voting power of the capital stock of the surviving business entity) (a "Change of Control Transaction"), (B) any sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, of all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole (an "Asset Sale"), or (C) a sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, of all or substantially all of the Corporation's and its subsidiaries' intellectual property (together with any Asset Sale, each a "Disposition"). All consideration payable to the stockholders of the Corporation in connection with any such Change of Control Transaction, or all consideration payable to the Corporation, together with all other available assets of the Corporation (net of obligations owed by the Corporation that are senior to the Preferred Stock), in connection with any Disposition, upon the consummation of such Change of Control Transaction, shall be, as applicable, paid by the purchaser to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, the Preferred Stock and any Junior Stock in accordance with the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e) above, with such preferences and priorities specifically intended to be applicable in any such Change of Control Transaction or Disposition, as if any such transaction were a Liquidation Event. In furtherance of the foregoing, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.4(f), including without limitation, (1) in the case of a Change of Control Transaction, causing the definitive agreement relating to such Change of Control Transaction to provide for a rate at which the shares of Preferred Stock are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e), or (2) in the case of a Disposition, redeeming the Preferred Stock in a manner that gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e). The Corporation shall promptly provide to the holders of shares of Preferred Stock such information concerning the terms of such Change of Control Transaction or Disposition, and the value of the assets of the Corporation as may reasonably be requested by the holders of Preferred Stock. The amount deemed distributed to the holders of Preferred Stock upon any such transaction shall be the cash or the value of the property, rights or securities distributed to such holders by the Corporation or the acquiring person, firm or other entity, as applicable.

Deemed Liquidation Events. Each (i) In the event of a Deemed Liquidation Event, if the Corporation does not effect a dissolution of the Corporation under the Delaware General Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each Holder of Preferred Stock no later than the ninetieth (90th) day after the 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 events shall be treated as clause to require the redemption of such shares of Preferred Stock, and (ii) if the Required Holders so request in a written instrument delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, unless the holders Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of (i) a majority any retained liabilities associated with the assets sold or technology licensed, or any other expenses associated with the Deemed Liquidation Event or the dissolution of the voting power Corporation, in each case as determined in good faith by the Board of Directors of the Corporation), together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the “Available Proceeds”), on the one hundred fiftieth (150th) day after such Deemed Liquidation Event, to redeem all outstanding shares of Preferred Stock voting together at a price per share equal to the Preferred Stock Liquidation Amount. 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 Preferred Stock, the Corporation shall redeem a pro rata portion of each Holder’s shares of Preferred Stock to the fullest extent of such Available Proceeds, based on the respective amounts that would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares, and shall redeem the remaining shares as a single class (a "Majority Interest") and soon as it may lawfully do so under Delaware law governing distributions to stockholders. The provisions of Section 8 shall apply, with such necessary changes in the details thereof as are necessitated by the context, to the redemption of the Preferred Stock pursuant to this Section 5(c)(i). Prior to the distribution or redemption provided for in this Section 5(c)(i), the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection with such Deemed Liquidation Event. (ii) a majority of the outstanding shares of Series E Preferred Stock (the "Series E In any Deemed Liquidation Consent") elect otherwise; provided however, if the amounts available for distribution by the Corporation to holders of Series D Preferred Stock upon such Liquidation Event would not be sufficient to pay the aggregate Series D Preference Amount if such event was treated as a Liquidation Event, if Available Proceeds are in a form of property other than in cash, the value of such waiver distribution shall also require be deemed to be the written election fair market value of such property. The determination of fair market value of such property shall be made in good faith by the holders Board of not less than sixty percent (60%) of the Series D Preferred Stock then outstanding (the "Series D Deemed Liquidation Consent"), provided further, that the Series E Deemed Liquidation Consent and the Series D Deemed Liquidation Consent shall not be required in connection with a Change of Control Transaction in which (i) the holders of capital stock of the Corporation immediately prior to such Change of Control Transaction continue to hold at least thirty five percent (35%) of the voting power of the capital stock of the surviving business entity in equal proportion to their holdings prior to such Change of Control Transaction, (ii) no cash consideration is paid to any holder of capital stock of the Corporation in such holder's capacity as a holder of capital stock Directors of the Corporation, provided that to the extent such property consists of securities, the fair market value of such securities shall be determined as follows: For securities not subject to investment letters or other similar restrictions on free marketability covered by Section 5(c)(iii) below, the value shall be the VWAP of such securities. (iii) The method of valuation of securities subject to investment letters or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall take into account an appropriate discount (as determined in good faith by the acquirer in such transaction does not have an effective registration statement under Board of Directors of the Securities Act of 1933, Corporation) from the market value as amended (determined pursuant to Section 5(c)(ii) above so as to reflect the "Securities Act") and approximate fair market value thereof. (iv) there If any portion of the consideration payable to the stockholders of the Corporation is no readily available public market for payable only upon satisfaction of contingencies (the capital stock received by “Additional Consideration”), (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated in accordance with the foregoing Sections 5(b) or 5(c) as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in accordance with Sections 5(b) and 5(c) after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 5(c)(iv), consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such transaction: (A) any merger or consolidation of the Corporation into or with another business entity (except one in which the shares of capital stock of the Corporation immediately prior to such merger or consolidation continue to represent at least a majority of the voting power of the capital stock of the surviving business entity) (a "Change of Control Transaction"), (B) any sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, of all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole (an "Asset Sale"), or (C) a sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, of all or substantially all of the Corporation's and its subsidiaries' intellectual property (together with any Asset Sale, each a "Disposition"). All consideration payable to the stockholders of the Corporation in connection with any such Change of Control Transaction, or all consideration payable to the Corporation, together with all other available assets of the Corporation (net of obligations owed by the Corporation that are senior to the Preferred Stock), in connection with any Disposition, upon the consummation of such Change of Control Transaction, Deemed Liquidation Event shall be, as applicable, paid by the purchaser to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, the Preferred Stock and any Junior Stock in accordance with the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e) above, with such preferences and priorities specifically intended be deemed to be applicable in any such Change of Control Transaction or Disposition, as if any such transaction were a Liquidation Event. In furtherance of the foregoing, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.4(f), including without limitation, (1) in the case of a Change of Control Transaction, causing the definitive agreement relating to such Change of Control Transaction to provide for a rate at which the shares of Preferred Stock are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e), or (2) in the case of a Disposition, redeeming the Preferred Stock in a manner that gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e). The Corporation shall promptly provide to the holders of shares of Preferred Stock such information concerning the terms of such Change of Control Transaction or Disposition, and the value of the assets of the Corporation as may reasonably be requested by the holders of Preferred Stock. The amount deemed distributed to the holders of Preferred Stock upon any such transaction shall be the cash or the value of the property, rights or securities distributed to such holders by the Corporation or the acquiring person, firm or other entity, as applicableAdditional Consideration.

Deemed Liquidation Events. Each of the (i) The following events shall be treated as deemed to be a Liquidation Eventliquidation of the Corporation for purposes of this Section 2, unless the holders of (i) at least a majority of the voting power of the outstanding shares of Preferred Stock voting together as a single class (a "Majority Interest") and (ii) a majority of the outstanding shares of Series E Preferred Stock (the "Series E Deemed Liquidation Consent") elect otherwise; provided however, if the amounts available for distribution by the Corporation to holders of Series D Preferred Stock upon such Liquidation Event would not be sufficient to pay the aggregate Series D Preference Amount if such event was treated as a Liquidation Event, such waiver shall also require the written election of the holders of not less than sixty percent (60%) in interest of the Series D A Preferred Stock then outstanding elect otherwise by written notice given to the Corporation at least 10 days prior to the effective date of any such event (the "Series D any such event, unless such an election is made, is referred to as a “Deemed Liquidation Consent"), provided further, that the Series E Deemed Liquidation Consent and the Series D Deemed Liquidation Consent shall not be required Event”): (A) a merger or consolidation in connection with a Change of Control Transaction in which which (iI) the holders of capital stock Corporation is a constituent party or (II) a subsidiary of the Corporation immediately prior is a constituent party and the Corporation issues shares of its capital stock pursuant to such Change of Control Transaction continue to hold at least thirty five percent (35%) of the voting power of the capital stock of the surviving business entity in equal proportion to their holdings prior to merger or consolidation, except any such Change of Control Transaction, (ii) no cash consideration is paid to any holder of capital stock of the Corporation in such holder's capacity as a holder of capital stock of the Corporation, (iii) the acquirer in such transaction does not have an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") and (iv) there is no readily available public market for the capital stock received by the holders of capital stock of the Corporation in connection with such transaction: (A) any merger or consolidation of involving the Corporation into or with another business entity (except one a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation at least a majority of the majority, by voting power power, of the capital stock of (1) the surviving business entityor resulting corporation or (2) (if the surviving or resulting corporation is a "Change wholly owned subsidiary of Control Transaction"another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; provided that, for the purpose of this Section 2(e)(i), all shares of Common Stock issuable upon exercise of Options (as defined below) outstanding immediately prior to such merger or consolidation or upon conversion of Convertible Securities (as defined below) outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of Common Stock are converted or exchanged; (B) any the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole or the sale of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole (an "Asset Sale")are held by such subsidiary or subsidiaries, or (C) a except where such sale, lease, transfer, exclusive license or other disposition, in disposition is to a single wholly owned subsidiary of the Corporation; or (C) a transaction or series of related transactionstransactions in which a Person (for purposes hereof, the term “Person” shall mean an individual, corporation, trust, partnership, limited liability company, joint venture, unincorporated organization, government body or any agency or political subdivision thereof, or any other entity) or a group of all or substantially all Persons (as defined in Rule 13d-5(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) acquires beneficial ownership (as determined in accordance with Rule 13d-3 under the Exchange Act) of a majority of voting power of the voting shares of the Corporation's and its subsidiaries' intellectual property (together with any Asset Sale, each a "Disposition"). All consideration payable to the stockholders of the Corporation in connection with any such Change of Control Transaction, or all consideration payable to the Corporation, together with all other available assets of the Corporation (net of obligations owed by the Corporation that are senior to the Preferred Stock), in connection with any Disposition, upon the consummation of such Change of Control Transaction, shall be, as applicable, paid by the purchaser to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, the Preferred Stock and any Junior Stock in accordance with the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e) above, with such preferences and priorities specifically intended to be applicable in any such Change of Control Transaction or Disposition, as if any such transaction were a Liquidation Event. In furtherance of the foregoing, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.4(f), including without limitation, (1) in the case of a Change of Control Transaction, causing the definitive agreement relating to such Change of Control Transaction to provide for a rate at which the shares of Preferred Stock are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e), or (2) in the case of a Disposition, redeeming the Preferred Stock in a manner that gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e). The Corporation shall promptly provide to the holders of shares of Preferred Stock such information concerning the terms of such Change of Control Transaction or Disposition, and the value of the assets of the Corporation as may reasonably be requested by the holders of Preferred Stock. The amount deemed distributed to the holders of Preferred Stock upon any such transaction shall be the cash or the value of the property, rights or securities distributed to such holders by the Corporation or the acquiring person, firm or other entity, as applicable.

Deemed Liquidation Events. Each of the (i) The following events shall be treated as deemed to be a liquidation of the Corporation for purposes of this Section 3.9.2 (a “Deemed Liquidation Event”), unless the holders of (i) a majority of the voting power of the outstanding shares of Preferred Stock voting together as a single class (a "Majority Interest") and (ii) a majority of the outstanding shares of Series E Preferred Stock (the "Series E Deemed Liquidation Consent") elect otherwise; provided however, if the amounts available for distribution by the Corporation to holders of Series D Preferred Stock upon such Liquidation Event would not be sufficient to pay the aggregate Series D Preference Amount if such event was treated as a Liquidation Event, such waiver shall also require the written election of the holders of not less than sixty percent (60%) 51% of the Series D C Preferred Stock then outstanding elect otherwise by written notice given to the Corporation at least 5 days prior to the effective date of any such event: (the "Series D Deemed Liquidation Consent")A) a merger, provided further, that the Series E Deemed Liquidation Consent and the Series D Deemed Liquidation Consent shall not be required consolidation or reorganization in connection with a Change of Control Transaction in which which (iI) the holders of capital stock Corporation is a constituent party or (II) a subsidiary of the Corporation immediately prior is a constituent party and the Corporation issues shares of its capital stock pursuant to such Change of Control Transaction continue to hold at least thirty five percent (35%) of the voting power of the capital stock of the surviving business entity in equal proportion to their holdings prior to merger or consolidation, except any such Change of Control Transactionmerger, (ii) no cash consideration is paid to any holder of capital stock of consolidation or reorganization involving the Corporation in such holder's capacity as or a holder of capital stock of the Corporation, (iii) the acquirer in such transaction does not have an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") and (iv) there is no readily available public market for the capital stock received by the holders of capital stock of the Corporation in connection with such transaction: (A) any merger or consolidation of the Corporation into or with another business entity (except one subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent represent, or are converted or exchanged for capital stock which represent, immediately following such merger or consolidation at least a majority of the majority, by voting power and economic interest, of the capital stock of (1) the surviving business entityor resulting corporation or (2) (if the surviving or resulting corporation is a "Change wholly owned subsidiary of Control Transaction")another corporation immediately following such merger, consolidation or reorganization, the parent corporation of such surviving or resulting corporation; (B) any the sale, lease, transfer, exclusive license transfer or other disposition, in a single transaction or series of related transactions, by the Corporation of all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole (an "Asset Sale"), or (C) a except where such sale, lease, transfer, exclusive license transfer or other dispositiondisposition is to a wholly owned subsidiary of the Corporation); or (C) the sale, conveyance, exchange or transfer of the voting capital stock of the Corporation in one or a single transaction or series of related transactionstransactions if, of all (I) after such sale, conveyance, exchange or substantially all transfer, the shareholders of the Corporation's Corporation immediately prior to such sale, conveyance, exchange or transfer do not retain at least a majority of the voting power of the Corporation immediately thereafter and its subsidiaries' intellectual property (together II) the proceeds of such sale, conveyance, exchange or transfer are not payable to the holders of Series C Preferred Stock in accordance with Subsections 3.9.2(a) and 3.9.2(b) above. (ii) The Corporation shall not effect any Asset Saletransaction constituting a Deemed Liquidation Event pursuant to Subsection 3.9.2(c)(i)(A) above unless the agreement or plan of merger, each a "Disposition"). All consolidation or reorganization provides that the consideration payable to the stockholders shareholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in connection accordance with any such Change Subsections 3.9.2(a) and 3.9.2(b) above. (iii) In the event of Control Transactiona Deemed Liquidation Event pursuant to Subsection 3.9.2(c)(i)(B) above, or all consideration payable to if the Corporation, together with all other available assets Corporation does not effect a dissolution of the Corporation under the Business Corporation Law within 60 days after such Deemed Liquidation Event, then the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of obligations owed any liabilities associated with the assets sold or technology licensed, as determined in good faith by the Corporation that are senior Board of Directors of the Corporation), to the extent legally available therefor (the “Net Proceeds”), to repurchase, on the 90th day after such Deemed Liquidation Event (the “Liquidation Repurchase Date”), the Series C Preferred Stock), in connection with any Disposition, upon and to distribute the consummation of such Change of Control Transaction, shall be, as applicable, paid by the purchaser to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, the Preferred Stock and any Junior Stock Net Proceeds in accordance with the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d3.9.2(a) and A.4(e3.9.2(b) above, with such preferences and priorities specifically intended . (iv) In the event of a Deemed Liquidation Event pursuant to be applicable in any such Change of Control Transaction or Disposition, as if any such transaction were a Liquidation Event. In furtherance of the foregoingSubsection 3.9.2(c)(i)(C) above, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.4(f)be liquidated, including without limitation, (1) dissolved and wound up in the case of a Change of Control Transaction, causing the definitive agreement relating to such Change of Control Transaction to provide for a rate at which the shares of Preferred Stock are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities set forth in accordance with Sections A.4(a), A.4(b), A.4(c), A.4(d3.9.2(a) and A.4(e), or 3.9.2(b) above within 90 days after such Deemed Liquidation Event. (2v) in the case of a Disposition, redeeming the Preferred Stock in a manner that gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e). The Corporation shall promptly provide to the holders of shares of Preferred Stock such information concerning the terms of such Change of Control Transaction or Disposition, and the value of the assets of the Corporation as may reasonably be requested by the holders of Preferred Stock. The amount deemed paid or distributed to the holders of Preferred Stock capital stock of the Corporation upon any such transaction merger, consolidation, reorganization, sale or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entityentity (the “Deemed Liquidation Event Consideration”). The value of such property, as applicablerights or securities shall be determined in good faith by the Board of Directors of the Corporation.

Deemed Liquidation Events. Each of the following events shall be treated as a Liquidation Event, unless the holders of (i) a majority of the voting power of the outstanding shares of Preferred Stock voting together as a single class (a "Majority Interest") and (ii) a majority of the outstanding shares of Series E Preferred Stock (the "Series E Deemed Liquidation Consent") elect otherwise; provided however, if the amounts available for distribution by the Corporation to holders of Series D Preferred Stock upon such Liquidation Event would not be sufficient to pay the aggregate Series D Preference Amount if such event was treated as a Liquidation Event, such waiver shall also require the written election of the holders of not less than sixty percent (60%) of the Series D Preferred Stock then outstanding (the "Series D Deemed Liquidation Consent"), provided further, that the Series E Deemed Liquidation Consent and the Series D Deemed Liquidation Consent shall not be required in connection with a Change of Control Transaction A merger or consolidation in which (iA) the holders of capital stock Corporation is a constituent party, or (B) a subsidiary of the Corporation immediately prior is a constituent party and the Corporation issues shares of its capital stock pursuant to such Change of Control Transaction continue merger or consolidation, shall be deemed to hold at least thirty five percent (35%) of the voting power of the capital stock of the surviving business entity in equal proportion to their holdings prior to such Change of Control Transaction, (ii) no cash consideration is paid to any holder of capital stock be a liquidation of the Corporation for purposes of this Section 2 (a “Deemed Liquidation Event”), except in either case (1) for any such holder's capacity as a holder of capital stock of the Corporation, (iii) the acquirer in such transaction does not have an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") and (iv) there is no readily available public market for the capital stock received by the holders of capital stock of the Corporation in connection with such transaction: (A) any merger or consolidation of involving the Corporation into or with another business entity (except one a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent represent, or are converted or exchanged for shares of capital stock which represent, immediately following such merger or consolidation at least a majority of the majority, by voting power power, of the capital stock of (y) the surviving business entityor resulting corporation or (z) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation (a "Change provided, that, for the purpose of Control Transaction")this Subsection 2(c)(i) all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such merger or consolidation or upon conversion of Convertible Securities outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger or consolidation and, (B) any saleif applicable, lease, transfer, exclusive license converted or other disposition, exchanged in a single transaction such merger or series consolidation on the same terms as the actual outstanding shares of related transactions, of all Common Stock are converted or substantially all of the assets of the Corporation and its subsidiaries taken as a whole (an "Asset Sale"exchanged), or (C2) a sale, lease, transfer, exclusive license or other disposition, in a single transaction or series if the holders of related transactions, no less than 51% of all or substantially all the Series A Preferred Stock elect otherwise by written notice given to the Corporation within 30 days after receipt of the Corporation's and its subsidiaries' intellectual property ’s advance written notice to the holders of Series A Preferred Stock of such event. (together with ii) The Corporation shall not have the power to effect any Asset Sale, each transaction constituting a "Disposition"). All Deemed Liquidation Event pursuant to Subsection 2(c)(i)(A) above unless the agreement or plan of merger or consolidation provides that the consideration payable to the stockholders of the Corporation in connection with any such Change shall be allocated among the holders of Control Transaction, or all consideration payable to the Corporation, together with all other available assets capital stock of the Corporation (net of obligations owed by the Corporation that are senior to the Preferred Stock), in connection with any Disposition, upon the consummation of such Change of Control Transaction, shall be, as applicable, paid by the purchaser to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, the Preferred Stock and any Junior Stock in accordance with the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(dSubsections 2(a) and A.4(e2(b) above, with such preferences and priorities specifically intended to be applicable in any such Change of Control Transaction or Disposition, as if any such transaction were a Liquidation Event. In furtherance of the foregoing, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.4(f), including without limitation, . (1iii) in the case of a Change of Control Transaction, causing the definitive agreement relating to such Change of Control Transaction to provide for a rate at which the shares of Preferred Stock are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e), or (2) in the case of a Disposition, redeeming the Preferred Stock in a manner that gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e). The Corporation shall promptly provide to the holders of shares of Preferred Stock such information concerning the terms of such Change of Control Transaction or Disposition, and the value of the assets of the Corporation as may reasonably be requested by the holders of Preferred Stock. The amount deemed paid or distributed to the holders of Preferred Stock capital stock of the Corporation upon any such transaction merger or consolidation shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation Corporation. The value of such property, rights or securities shall be determined in good faith by the acquiring person, firm or other entity, as applicableBoard of Directors of the Corporation.

Deemed Liquidation Events. Each Unless waived by written approval or consent of the following events shall be treated as a Liquidation Event, unless the holders of at least sixty-seven percent (i67%) a majority of the voting power of the outstanding shares of Series D Preferred Stock Stock, voting together as a single class (a on an "Majority Interest") and (ii) a majority of the outstanding shares of Series E Preferred Stock as-converted" basis (the "Series E Deemed Liquidation Consent") elect otherwise; provided however, if the amounts available for distribution by the Corporation to holders of Majority Series D Preferred Stock upon such Liquidation Event would not be sufficient to pay the aggregate Series D Preference Amount if such event was treated as a Liquidation Event, such waiver shall also require the written election of the holders of not less than sixty percent (60%) of the Series D Preferred Stock then outstanding (the "Series D Deemed Liquidation ConsentHolders"), provided furthereach of the following transactions shall be deemed to be a liquidation, that dissolution or winding up of the Series E Corporation as those terms are used in and for purposes of this Section 4 (each such event being a "Deemed Liquidation Consent and Event"). Written notice of such election shall be given to the Series D Deemed Liquidation Consent shall not be required in connection with a Change Corporation at least ten (10) days prior to the effective date of Control Transaction any such event. (i) any reorganization, consolidation, merger or similar transaction or series of related transactions in which (iA) the holders of capital stock Corporation is a constituent corporation or a party thereto, or (B) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such combination transaction if, in either case, as a result of such transaction, the voting securities of the Corporation that are outstanding immediately prior to the consummation of such Change of Control Transaction continue to hold at least thirty five percent transaction (35%other than any such securities that are held by the acquiring organization) of the voting power of the capital stock do not represent, or are not converted into, securities of the surviving business entity in equal proportion to their holdings prior to such Change or resulting corporation of Control Transaction, (ii) no cash consideration is paid to any holder of capital stock of the Corporation in such holder's capacity as a holder of capital stock of the Corporation, (iii) the acquirer in such transaction does not have an effective registration statement under (or such surviving or resulting corporation’s parent corporation if the Securities Act of 1933, as amended (the "Securities Act") and (iv) there surviving or resulting corporation is no readily available public market for the capital stock received owned by the holders parent corporation) that, immediately after the consummation of capital stock of the Corporation in connection with such transaction: (A) any merger or consolidation of the Corporation into or with another business entity (except one in which the shares of capital stock of the Corporation immediately prior to such merger or consolidation continue to represent , together possess at least a majority of the total voting power of all securities of such surviving or resulting corporation (or its parent corporation, if applicable) that are outstanding immediately after the capital stock consummation of the surviving business entitysuch transaction; (ii) (a "Change of Control Transaction"), (B) any sale, lease, transfer, exclusive license lease or other disposition, transfer or disposition in a single any transaction or series of related transactions, transactions of all or substantially all of the assets assets, or the exclusive license of all or substantially all of the intellectual property, of the Corporation and its subsidiaries taken as a whole or the sale or disposition (an "Asset Sale")whether by merger or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets (including intellectual property) of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, or (C) a except where such sale, lease, transfer, exclusive other disposition or license is to a wholly-owned subsidiary of the Corporation or other disposition, is otherwise licensed in a single the ordinary course of business; or (iii) (i) any transaction or series of related transactionstransactions occurring after the Original Issue Date, as a result of all or substantially all which, securities representing in excess of fifty percent (50%) of the Corporation's voting power of the Corporation are transferred and/or issued and its subsidiaries' intellectual property (together with any Asset Sale, each a "Disposition"). All consideration payable to the stockholders of the Corporation in connection with immediately prior to such event hold less than fifty percent (50%) of the voting securities of the Corporation immediately after such event; or (ii) any such Change transaction or series of Control Transactionrelated transactions involving any recapitalization, leveraged buyout, management buyout, reclassification of capital structure, or all consideration payable other redemption and recapitalization of shares of capital stock in which existing stockholders’ shares of capital stock are being redeemed or retired pursuant to a change in voting control, the principal purpose of which is to effect an acquisition of the Corporation, together with all other available assets of provided, however, notwithstanding anything contained in this Section 4(c)(iii) to the Corporation (net of obligations owed contrary, a Deemed Liquidation Event shall not include the issuance by the Corporation that are senior of shares of capital stock to existing or new stockholders where the Preferred Stock), in connection with any Disposition, upon principal purpose of the transaction (or series of related transactions) is the consummation of such Change of Control Transaction, shall be, as applicable, paid by the purchaser an equity financing designed to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, the Preferred Stock and any Junior Stock in accordance with the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e) above, with such preferences and priorities specifically intended to be applicable in any such Change of Control Transaction or Disposition, as if any such transaction were a Liquidation Event. In furtherance of the foregoing, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.4(f), including without limitation, (1) in the case of a Change of Control Transaction, causing the definitive agreement relating to such Change of Control Transaction to provide raise working capital for a rate at which the shares of Preferred Stock are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e), or (2) in the case of a Disposition, redeeming the Preferred Stock in a manner that gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e). The Corporation shall promptly provide to the holders of shares of Preferred Stock such information concerning the terms of such Change of Control Transaction or Disposition, and the value of the assets of the Corporation as may reasonably be requested by the holders of Preferred Stock. The amount deemed distributed to the holders of Preferred Stock upon any such transaction shall be the cash general corporate purposes or the value acquisition of the property, rights another company or securities distributed to such holders by the Corporation or the acquiring person, firm or other entity, as applicabletechnology rights.

Deemed Liquidation Events. Each of the following events shall be treated as considered a “Deemed Liquidation Event, ” unless the holders of at least eighty percent (i80%) a majority of the voting power of the outstanding shares of Preferred Stock voting together as a single class (a "Majority Interest") and (ii) a majority of the outstanding shares of Series E B Preferred Stock (the "Series E Deemed Liquidation Consent") elect otherwise; provided however, if the amounts available for distribution otherwise by written notice sent to the Corporation prior to holders the effective date of Series D Preferred Stock upon any such Liquidation Event would not be sufficient to pay the aggregate Series D Preference Amount if such event was treated as a Liquidation Event, such waiver shall also require the written election of the holders of not less than sixty percent (60%) of the Series D Preferred Stock then outstanding (the "Series D Deemed Liquidation Consent"), provided further, that the Series E Deemed Liquidation Consent and the Series D Deemed Liquidation Consent shall not be required in connection with a Change of Control Transaction in which event: (i) the holders of capital stock sale, merger, reverse merger, share exchange, recapitalization, reorganization or consolidation of the Corporation immediately prior to such Change or its subsidiary into or with another corporation or other similar transaction or series of Control Transaction continue to hold at least thirty five related transactions in which fifty percent (3550%) or more of the voting power of the capital stock of the surviving business entity Corporation is disposed or in equal proportion to their holdings which the shareholders of the Corporation immediately prior to such Change merger, reverse merger, share exchange, recapitalization, reorganization or consolidation own less than fifty percent (50%) of Control Transactionthe Corporation’s voting power immediately after such merger, reorganization or consolidation; or (ii) no cash the sale of all or substantially all the assets of the Corporation. The Corporation shall not have the power to effect a Deemed Liquidation Event pursuant to Section 3(c)(i) unless the agreement or plan of merger or consolidation for such transaction provides that the consideration is paid payable to any holder of capital stock the stockholders of the Corporation in such holder's capacity as a holder of capital stock of the Corporation, (iii) the acquirer in such transaction does not have an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") and (iv) there is no readily available public market for the capital stock received by shall be allocated among the holders of capital stock of the Corporation in connection accordance with such transaction: (ASections 3(a) any merger or consolidation of and 3(b). If the Corporation into or with another business entity (except one effects a Deemed Liquidation Event pursuant to Section 3(c)(i) in which it receives the shares proceeds of capital stock of the Corporation immediately prior such Deemed Liquidation Event or pursuant to such merger or consolidation continue to represent at least a majority of the voting power of the capital stock of the surviving business entity) (a "Change of Control Transaction"Section 3(c)(ii), and it does not liquidate or dissolve within ninety (B90) any sale, lease, transfer, exclusive license or other disposition, in a single transaction or series days of related transactions, of all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole (an "Asset Sale"), or (C) a sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, of all or substantially all of the Corporation's and its subsidiaries' intellectual property (together with any Asset Sale, each a "Disposition"). All consideration payable to the stockholders of the Corporation in connection with any such Change of Control Transaction, or all consideration payable to the Corporation, together with all other available assets of the Corporation (net of obligations owed by the Corporation that are senior to the Preferred Stock), in connection with any Disposition, upon the consummation of such Change Deemed Liquidation Event, it shall reasonably promptly redeem each share of Control Transaction, shall be, as applicable, paid by the purchaser to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, the Series B Preferred Stock and any Junior for the amount which the holder of such share of Series B Preferred Stock would receive in accordance with the preferences and priorities set forth in a liquidation pursuant to Sections A.4(a), A.4(b), A.4(c), A.4(d3(a) and A.4(e) above, with such preferences and priorities specifically intended to be applicable in any such Change of Control Transaction or Disposition, as if any such transaction were a Liquidation Event. In furtherance of the foregoing, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.4(f3(b), including without limitation, (1) in the case of a Change of Control Transaction, causing the definitive agreement relating to such Change of Control Transaction to provide for a rate at which the shares of Preferred Stock are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e), or (2) in the case of a Disposition, redeeming the Preferred Stock in a manner that gives effect to the preferences and priorities set forth in Sections A.4(a), A.4(b), A.4(c), A.4(d) and A.4(e). The Corporation shall promptly provide to the holders of shares of Preferred Stock such information concerning the terms of such Change of Control Transaction or Disposition, and the value of the assets of the Corporation as may reasonably be requested by the holders of Preferred Stock. The amount deemed distributed to the holders of Preferred Stock upon any such transaction shall be the cash or the value of the property, rights or securities distributed to such holders by the Corporation or the acquiring person, firm or other entity, as applicable.