Liquidation Dissolution or Winding Up Certain Mergers Consolidations and Asset Sales. 2.1 Preferential Payments to Holders of Series B Preferred Stock and the Holders of Series B-1 Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event (as defined below), the holders of shares of Series B Preferred Stock and the holders of shares of Series B-1 Preferred Stock then outstanding shall be entitled to be paid, and in each case on a pari passu basis, out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Series A Preferred Stock or Common Stock by reason of their ownership thereof, an amount per share equal to: (I) with respect to the Series B Preferred Stock, the greater of (i) one (1) times the Original Issue Price for the Series B Preferred Stock, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Series B Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B Liquidation Amount”); and (II) with respect to the Series B-1 Preferred Stock, the greater of (i) one (1) times the Original Issue Price for the Series B-1 Preferred Stock, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Series B-1 Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B-1 Liquidation Amount”). If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock and the holders of Series B-1 Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1, the holders of shares of Series B Preferred Stock and the holders of shares of Series B-1 Preferred Stock shall share ratably on a pari passu basis in any distribution of the assets available for distribution in proportion to the respective amounts to 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 shares were paid in full.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.), Series B 1 Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.)
Liquidation Dissolution or Winding Up Certain Mergers Consolidations and Asset Sales. 2.1 Preferential Payments to Holders of Series B Preferred Stock and the Holders of Series B-1 Preferred Stock. (a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event (as defined below)Corporation, the holders Holders of shares of Series B Preferred Stock and the holders of shares of Series B-1 Preferred Stock then outstanding shall be entitled to be paid, and in each case on a pari passu basis, paid out of the assets of the Corporation available for distribution to its stockholders or, in the case of a Deemed Liquidation Event (as defined below), out of the consideration payable to stockholders in such Deemed Liquidation Event or the Available Proceeds (each as defined below), before any payment shall be made to the holders of Series A Preferred Stock or Common Stock by reason of their ownership thereof, an amount per share equal to: (I) with respect to the Series B Preferred Stock, the greater of (i) one (1) times the Original Issue Price for the Series B Preferred StockStated Value, plus any dividends declared but accrued, unpaid thereonDividends, or and (ii) such amount per share as would have been payable had all shares of such series of Series B Preferred Stock been converted into Common Stock pursuant to Section 4 6 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts amount payable pursuant to this sentence is hereinafter referred to as the “Series B Liquidation Amount”); and (II) with respect to the Series B-1 Preferred Stock, the greater of (i) one (1) times the Original Issue Price for the Series B-1 Preferred Stock, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Series B-1 Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B-1 Liquidation Amount”). If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation EventEvent (as defined below), the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders Holders of shares of Series B Preferred Stock and the holders of Series B-1 Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1Section 5(a), the holders Holders of shares of Series B Preferred Stock and the holders of shares of Series B-1 Preferred Stock shall share ratably on a pari passu basis in any distribution of the assets available for distribution in proportion to the respective amounts to 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 shares were paid in full. The Corporation shall mail written notice of any such liquidation, dissolution or winding up not less than thirty (30) days prior to the payment date stated therein, to each Holder.
(b) Each of the following events shall be considered a “Deemed Liquidation Event”, unless the Requisite Holders elect otherwise by written notice sent to the Corporation at least seven (7) days prior to the effective date of any such event:
(i) a merger or consolidation in which
(A) the Corporation is a constituent party, or
(B) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation, except any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) 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; or
(ii) (A) 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 (B) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related transactions) of one (1) or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Corporation.
(c) In the event of a Deemed Liquidation Event referred to in Section 5(b)(i)(B) or Section 5(b)(ii), if the Corporation does not effect a dissolution of the Corporation under the 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 clause (ii) to require the redemption of such shares of Preferred Stock, and (ii) if the Requisite Holders so request in a written instrument delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board of Directors), 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 at a price per share equal to the applicable 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 which 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 soon as it may lawfully do so under Delaware law governing distributions to stockholders.
(d) The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities to be paid or distributed to such holders pursuant to such Deemed Liquidation Event. The value of such property, rights or securities shall be determined in good faith by the Board of Directors.
(e) In the event of a Deemed Liquidation Event pursuant to Section 5(b)(i)(A), if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “Additional Consideration”), the Merger Agreement shall provide that (i) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the holders of capital stock of the Corporation in accordance with Section 5(a) as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (ii) 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 Section 5(a) after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 5(e), consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Additional Consideration.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Industrial Tech Acquisitions II, Inc.)
Liquidation Dissolution or Winding Up Certain Mergers Consolidations and Asset Sales. 2.1 Preferential Payments to Holders of Series B Preferred Stock and the Holders of Series B-1 Preferred Stock. (a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event (as defined below)Corporation, the holders of shares of Series B Preferred Stock and the holders of shares of Series B-1 A Preferred Stock then outstanding shall be entitled to be paid, and in each case on a pari passu basis, paid out of the assets of the Corporation available for distribution to its stockholders stockholders, after and subject to the payment in full of all amounts required to be distributed to the holders of any other class or series of stock of the Corporation ranking on liquidation prior and in preference to the Series A Preferred Stock (collectively referred to as "Senior Preferred Stock"), but before any payment shall be made to the holders of Common Stock or any other class or series of stock ranking on liquidation junior to the Series A Preferred Stock or (such Common Stock and other stock being collectively referred to as "Junior Stock") by reason of their ownership thereof, an amount equal to $3.85 per share equal to: (I) with respect subject to appropriate adjustment in the Series B Preferred Stockevent of any stock dividend, the greater of (i) one (1) times the Original Issue Price for the Series B Preferred Stockstock split, combination or other similar recapitalization affecting such shares), plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Series B Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B Liquidation Amount”); and (II) with respect to the Series B-1 Preferred Stock, the greater of (i) one (1) times the Original Issue Price for the Series B-1 Preferred Stock, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Series B-1 Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B-1 Liquidation Amount”). If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the remaining assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock and the holders of Series B-1 A Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1entitled, the holders of shares of Series B A Preferred Stock and any class or series of stock ranking on liquidation on a parity with the holders of shares of Series B-1 A Preferred Stock shall share ratably on a pari passu basis in any distribution of the remaining assets available for distribution and funds of the Corporation in proportion to the respective amounts to 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 shares were paid in full.
(b) After the payment of all preferential amounts required to be paid to the holders of Senior Preferred Stock, Series A Preferred Stock and any other class or series of stock of the Corporation ranking on liquidation on a parity with the CONTINUATION SHEET 4A Series A Preferred Stock, upon the dissolution, liquidation or winding up of the Corporation, the holders of shares of Junior Stock then outstanding shall be entitled to receive the remaining assets and funds of the Corporation available for distribution to its stockholders.
(c) A consolidation or merger of the Corporation with or into another corporation or entity, or a sale of all or substantially all of the assets of the Corporation, shall not be regarded as a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 2.
Appears in 1 contract
Samples: Stock Purchase Agreement (Art Technology Group Inc)
Liquidation Dissolution or Winding Up Certain Mergers Consolidations and Asset Sales. 2.1 Preferential Payments to Holders of Series B Preferred Stock and the Holders of Series B-1 Preferred Stock. (a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event (as defined below)Corporation, the holders of shares of Series B Preferred Stock and the holders of shares of Series B-1 Convertible Preferred Stock then outstanding shall be entitled to be paid, and in each case on a pari passu basis, paid out of the assets of the Corporation available for distribution to its stockholders stockholders, after and subject to the payment in full of all amounts required to be distributed to the holders of any other class or series of stock of the Corporation ranking on liquidation prior and in preference to the Convertible Preferred Stock (collectively referred to as "Senior Preferred Stock"), but before any payment shall be made to the holders of Series A Common Stock or any other class or series of stock ranking on liquidation junior to the Convertible Preferred Stock or (such Common Stock and other stock being collectively referred to as "Junior Stock") by reason of their ownership thereof, an amount equal to $ 105.0916925 per share equal to: (I) with respect subject to appropriate adjustment in the Series B Preferred Stockevent of any stock dividend, the greater of (i) one (1) times the Original Issue Price for the Series B Preferred Stockstock split, combination or other similar recapitalization affecting such shares), plus any dividends declared but unpaid thereon, or (ii) on such amount per share as would have been payable had all shares of shares. Any such series of Series B Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B Liquidation Amount”); and (II) with respect payment shall be rounded to the Series B-1 Preferred Stock, the greater of (i) one (1) times the Original Issue Price for the Series B-1 Preferred Stock, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Series B-1 Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B-1 Liquidation Amount”)nearest cent. If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the remaining assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock and the holders of Series B-1 Convertible Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1entitled, the holders of shares of Series B Convertible Preferred Stock and any class or series of stock ranking on liquidation on a parity with the holders of shares of Series B-1 Convertible Preferred Stock shall share ratably on a pari passu basis in any distribution of the remaining assets available for distribution and funds of the Corporation in proportion to the respective amounts to 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 shares were paid in full.
(b) After the payment of all amounts required to be paid to the holders of Senior Preferred Stock, Convertible Preferred Stock and any other class or series of stock of the Corporation ranking on liquidation on a parity with the Convertible Preferred Stock, upon the dissolution, liquidation or winding up of the Corporation, the holders of such stock shall be entitled to no further distribution of the assets, and the remaining assets and funds of the Corporation available for distribution to its stockholders shall be distributed among the holders of shares of Junior Stock and any other class or series of stock entitled to participate in liquidation distributions with the holders of Common Stock, pro rata based on the number of shares of Common Stock held by each (assuming conversion into Common Stock of all such shares).
(c) In the event (in each case) of any merger or consolidation of the Corporation into or with another corporation (except one in which the holders of capital stock of the Corporation immediately prior to such merger or consolidation continue to hold at least 51% by voting power of the capital stock of the surviving corporation), or the sale of all or substantially all the assets of the Corporation, such merger, consolidation or asset sale shall be deemed to be a liquidation of the Corporation, and all consideration payable to the stockholders of the Corporation (in the case of a merger or consolidation), or all consideration payable to the Corporation, together with all other available assets of the Corporation (in the case of an asset sale), shall be distributed to the holders of capital stock of the Corporation in accordance with Subsections 2(a) and 2(b) above, provided, however, that the holders of the Convertible Preferred Stock shall have the right with respect to the Convertible Preferred Stock to elect the benefits of the provisions of Subsection 4(j) in lieu of receiving payment pursuant to this Section 2. The value of such property, rights or other securities shall be the fair market value of such property, rights or other securities as determined in good faith by the Board of Directors of the Corporation. In the event of any dispute between the holders of the Convertible Preferred Stock and the Corporation regarding the determination of the fair market value of such non-cash distributions, at the election of the holders of a majority of the outstanding shares of Convertible Preferred Stock, the Corporation shall engage a consulting or investment banking firm selected by the Board of Directors and approved by the holders of a majority of the Convertible Preferred Stock to prepare an independent appraisal of the fair market value of such property to be distributed. Each of the Corporation and the holders of a majority of the outstanding Convertible Preferred Stock shall provide such approved appraiser with a written estimate of the fair market value of such property. The expenses of any appraisal by such a consulting or investment banking firm shall be borne by the Corporation.
Appears in 1 contract
Samples: Letter of Agreement (Cellstar Corp)
Liquidation Dissolution or Winding Up Certain Mergers Consolidations and Asset Sales. 2.1 Preferential Payments to Holders of Series B Preferred Stock and the Holders of Series B-1 Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation Corporation, including any insolvency or Deemed Liquidation Event bankruptcy proceeding affecting the Company which is not dismissed within sixty (as defined below)60) days of the filing thereof, the holders of shares of Series B Preferred Stock and the holders of shares of Series B-1 Preferred Stock then outstanding shall be entitled to be paid, and in each case on a pari passu basis, paid out of the assets of the Corporation available for distribution to its stockholders stockholders, before any payment shall be made to the holders of Common Stock or any other class or series of stock ranking on liquidation junior to the Series A B Preferred Stock or (such Common Stock and other stock being collectively referred to as "Junior Stock") by reason of their ownership thereof, an amount per share equal to: (I) with respect to the Series B Preferred Stock, the greater of (i) one $9.165 per share (1) times subject to appropriate adjustment in the Original Issue Price for the Series B Preferred Stockevent of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), plus any dividends accrued and unpaid dividends, whether declared but unpaid thereonor not, or (ii) such amount per share as would have been payable had all shares of each such series of Series B Preferred Stock share been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, dissolution or winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B Liquidation Amount”); and (II) with respect to the Series B-1 Preferred Stock, the greater of (i) one (1) times the Original Issue Price for the Series B-1 Preferred Stock, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Series B-1 Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amounts payable pursuant to this sentence is hereinafter referred to as the “Series B-1 Liquidation Amount”)up. If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the remaining assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock and the holders of Series B-1 Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1entitled, the holders of shares of Series B Preferred Stock and any class or series of stock ranking on liquidation on a parity with the holders of shares of Series B-1 B Preferred Stock shall share ratably on a pari passu basis in any distribution of the remaining assets available for distribution and funds of the Corporation in proportion to the respective amounts to 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 shares were paid in full.C-1
Appears in 1 contract
