Common use of Reorganization or Merger Clause in Contracts

Reorganization or Merger. (1) For the purposes of this Section 2, a liquidation, dissolution or winding up of the corporation shall be deemed to include (i) the acquisition of the corporation by another entity by means of any transaction or series of related transactions (including, without limitation, any sale of capital stock, reorganization, recapitalization, merger or consolidation but, excluding any merger effected exclusively for the purpose of changing the domicile of the corporation) unless the Corporation's stockholders of record as constituted immediately prior to such acquisition or sale will, immediately after such acquisition or sale (by virtue or securities issued as consideration for the corporation's acquisition or sale or otherwise) hold at least 50% of the voting power of the surviving or acquiring entity or (y) a sale of all or substantially all of the assets of the corporation. No stockholder of the corporation shall enter into any transaction or series of related transactions described above unless the terms of such transaction or transactions provide that the consideration to be paid to the stockholders of the corporation is to be allocated in accordance with the preferences and priorities set forth in this Section 2. (2) In any of such events, if the consideration received by the corporation is other than cash, its value will be deemed its fair market value. Any securities shall be valued as follows: (A) for securities not subject to investment letter or other similar restrictions on free marketability, (B) if traded on a securities exchange or the Nasdaq Stock Market, the value shall be deemed to be the average of the closing prices of the securities on such exchange or market over the 30-day period ending three (3) days prior to the closing of such transaction; (C) if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid prices over the 30-day period ending three (3) days prior to the closing of such transaction; and (D) if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the board of directors of the corporation. (3) The method of valuation of securities subject to investment letter or other restrictions on free marketability shall take into account an appropriate discount (as determined in good faith by the board of directors of the corporation) from the market value determined as pursuant to (2)(A), (B) or (C) above so as to reflect the approximate fair market value thereof.

Reorganization or Merger. (1) For the purposes of this Section 2, a liquidation, dissolution or winding up of the corporation shall be deemed to include (i) the acquisition of the corporation by another entity by means of any transaction or series of related transactions (including, without limitation, any sale of capital stock, reorganization, recapitalization, merger or consolidation but, excluding any merger effected exclusively for the purpose of changing the domicile of the corporation) unless the Corporation's stockholders of record as constituted immediately prior to such acquisition or sale will, immediately after such acquisition or sale (by virtue or securities issued as consideration for the corporation's acquisition or sale or otherwise) hold at least 50% of the voting power of the surviving or acquiring entity or (y) a sale of all or substantially all of the assets of the corporation. No stockholder of the corporation shall enter into any transaction or series of related transactions described above unless the terms of such transaction or transactions provide that the consideration to be paid to the stockholders of the corporation is to be allocated in accordance with the preferences and priorities set forth in this Section 2. (2) In any of such events, if the consideration received by the corporation is other than cash, its value will be deemed its fair market value. Any securities shall be valued as follows: (A) for securities not subject to investment letter or other similar restrictions on free marketability, (B) if traded on a securities exchange or the Nasdaq Stock Market, the value shall be deemed to be the average of the closing prices of the securities on such exchange or market over the 30-day period ending three (3) days prior to the closing of such transaction; (C) if actively traded over-the-the- counter, the value shall be deemed to be the average of the closing bid prices over the 30-day period ending three (3) days prior to the closing of such transaction; and (D) if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the board of directors of the corporation. (3) The method of valuation of securities subject to investment letter or other restrictions on free marketability shall take into account an appropriate discount (as determined in good faith by the board of directors of the corporation) from the market value determined as pursuant to (2)(A), (B) or (C) above so as to reflect the approximate fair market value thereof.