Common use of Liquidation Payment Clause in Contracts

Liquidation Payment. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (each, a “Liquidation Event”), and prior and in preference to any distribution or payment of any of the assets or surplus funds of the Corporation to the holders of the Common Stock or any other Convertible Preferred Stock Junior Securities by reason of their ownership thereof, the Convertible Preferred Stockholders shall be entitled to be paid out of the assets of the Corporation an amount per share of Convertible Preferred Stock (such amount, the “Liquidation Payment”) equal to the greater of (i) all accrued but unpaid Convertible Preferred Dividends in respect of such share of Convertible Preferred Stock, plus an amount equal to the Convertible Preferred Original Issue Price in respect of such share and (ii) the per share amount of all cash, securities and other property (such securities or other property having a value equal to its fair market value as reasonably determined by the Board of Directors) to be distributed in respect of the Common Stock such holder would have been entitled to receive in respect of its shares of Convertible Preferred Stock had it converted such shares of Convertible Preferred Stock immediately prior to the date fixed for such Liquidation Event. If, upon the occurrence of a Liquidation Event, the assets and surplus funds of the Corporation shall be insufficient to make payment in full to all Convertible Preferred Stockholders and holders of Convertible Preferred Stock Parity Securities, if any, of all Liquidation Payments, then such assets and surplus funds shall be distributed among the Convertible Preferred Stockholders ratably in proportion to the full accrued but unpaid Liquidation Payments to which they would otherwise be respectively entitled to receive pursuant to this Section 3(a). Prior to the occurrence of a Liquidation Event, the Corporation shall give each holder of record of Convertible Preferred Stock written notice (the “Liquidation Event Notice”) not later than fifteen (15) days prior to the stockholders’ meeting called to approve such transaction or event, or fifteen (15) days prior to the closing of such transaction or event, whichever is earlier, and shall also notify such holders in writing of the final approval of such transaction or event. The first of such notices shall describe the material terms and conditions of the impending transaction or event and the provisions of this Section 3(a). The transaction or event shall not occur sooner than 15 days after the Corporation has given the first notice provided for herein.

Liquidation Payment. In Subject to the rights of any series of preferred stock which by its terms expressly ranks senior to the Series E Preferred Stock in respect of the right to receive payment of the distribution of assets upon liquidation of the Corporation which may from time to time come into existence, in the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (eachinvoluntary, a “Liquidation Event”), and prior and in preference to then out of the assets of the Corporation before any distribution or payment of any of the assets or surplus funds of the Corporation to the holders of Junior Stock (as to dividends or upon liquidation, dissolution or winding up), but subject to paragraph (b) below, the Common Stock or any other Convertible holders of the Series E Preferred Stock Junior Securities by reason of their ownership thereof, the Convertible Preferred Stockholders shall be entitled to be paid out of the assets of the Corporation an amount per legally available for distribution to stockholders, in respect of each share of Convertible Series E Preferred Stock (such amountStock, the “Liquidation Payment”) equal to the greater of (i) all accrued but unpaid Convertible Preferred Dividends in respect of such share of Convertible Preferred Stockthe Liquidation Preference, plus an amount equal accrued and unpaid dividends whether or not declared, if any (or a pro rata portion thereof with respect to fractional shares), to the Convertible Preferred Original Issue Price in respect date of such share final distribution and (ii) the per share amount of all cash, securities and other property (such securities or other property having a value equal to its fair market value as reasonably determined by the Board of Directors) to be distributed in respect of the Common Stock that such holder would have been entitled to receive in respect of its shares the Common Stock into which such share of Convertible Series E Preferred Stock had it could have been converted such shares of Convertible Preferred Stock assuming that, immediately prior to such event of liquidation, dissolution or winding up of the date fixed Corporation, all holders of Series E Preferred Stock had, pursuant to, and in accordance with, Section 6, converted all shares of Series E Preferred Stock into shares of Common Stock (but, for such Liquidation Eventpurposes of this clause (ii), without taking into account any limitations or restrictions on the convertibility of the shares of Series E Preferred Stock and without taking into account any adjustment to the Conversion Ratio pursuant to Section 6(g)). If, upon the occurrence of a Liquidation EventExcept as provided in this Section 5(a), the holders of the Series E Preferred Stock shall be entitled to no other or further distribution in connection with such liquidation, dissolution or winding up and shall have no further right or claim to any of the remaining assets and surplus funds of the Corporation. Absent an actual liquidation, dissolution or winding up of the Corporation, no merger or consolidation, share exchange, sale of all or substantially all of the assets of the Corporation or any other similar reorganization or change of control transaction involving the Corporation shall be insufficient deemed to make payment in full to all Convertible Preferred Stockholders and holders be a liquidation, dissolution or winding up of Convertible Preferred Stock Parity Securities, if any, of all Liquidation Payments, then such assets and surplus funds shall be distributed among the Convertible Preferred Stockholders ratably in proportion to the full accrued but unpaid Liquidation Payments to which they would otherwise be respectively entitled to receive pursuant to this Section 3(a). Prior to the occurrence of a Liquidation Event, the Corporation shall give each holder of record of Convertible Preferred Stock written notice (the “Liquidation Event Notice”) not later than fifteen (15) days prior to the stockholders’ meeting called to approve such transaction or event, or fifteen (15) days prior to the closing of such transaction or event, whichever is earlier, and shall also notify such holders in writing of the final approval of such transaction or event. The first of such notices shall describe the material terms and conditions of the impending transaction or event and the provisions for purposes of this Section 3(a). The transaction or event shall not occur sooner than 15 days after the Corporation has given the first notice provided for herein5.