SERIES
PREFERRED STOCK HAD BEEN CONVERTED INTO SHARES OF COMMON STOCK IN ACCORDANCE
WITH SECTION 3(C).
(C)
NOTWITHSTANDING PARAGRAPH (A), SOLELY FOR PURPOSES OF DETERMINING
THE AMOUNT EACH HOLDER OF SHARES OF SERIES PREFERRED STOCK IS ENTITLED TO
RECEIVE WITH RESPECT TO A LIQUIDATION EVENT, EACH SERIES OF SERIES PREFERRED
STOCK SHALL BE TREATED AS IF ALL HOLDERS OF SUCH SERIES HAD CONVERTED SUCH
HOLDERS' SHARES OF SUCH SERIES INTO SHARES OF COMMON STOCK IMMEDIATELY PRIOR TO
THE LIQUIDATION EVENT IF, AS A RESULT OF AN ACTUAL CONVERSION OF SUCH SERIES OF
SERIES PREFERRED STOCK (INCLUDING TAKING INTO ACCOUNT THE OPERATION OF THIS
PARAGRAPH (C) WITH RESPECT TO ALL SERIES OF SERIES PREFERRED STOCK), HOLDERS OF
SUCH SERIES WOULD RECEIVE (WITH RESPECT TO SUCH SERIES), IN THE AGGREGATE, AN
AMOUNT GREATER THAN THE AMOUNT THAT WOULD BE DISTRIBUTED TO HOLDERS OF SUCH
SERIES IF SUCH HOLDERS HAD NOT CONVERTED SUCH SERIES OF SERIES PREFERRED STOCK
INTO SHARES OF COMMON STOCK.
IF HOLDERS OF ANY SERIES ARE TREATED AS IF THEY
HAD CONVERTED SHARES OF SERIES PREFERRED STOCK INTO COMMON STOCK PURSUANT TO
THIS PARAGRAPH, THEN SUCH HOLDERS SHALL NOT BE ENTITLED TO RECEIVE ANY
DISTRIBUTION PURSUANT TO SECTION 3(A) THAT WOULD OTHERWISE BE MADE TO HOLDERS OF
SUCH SERIES OF SERIES PREFERRED STOCK.
4.
ASSET TRANSFER OR ACQUISITION RIGHTS.
(A)
IN THE EVENT THAT THE COMPANY IS A PARTY TO AN ACQUISITION OR ASSET
TRANSFER (AS HEREINAFTER DEFINED), THEN EACH HOLDER OF SERIES PREFERRED STOCK
SHALL BE ENTITLED TO RECEIVE, FOR EACH SHARE OF SERIES PREFERRED STOCK THEN
HELD, OUT OF THE PROCEEDS OF SUCH
4
ACQUISITION OR ASSET TRANSFER, GREATER OF THE AMOUNT OF CASH, SECURITIES OR
OTHER PROPERTY TO WHICH SUCH HOLDER WOULD BE ENTITLED TO RECEIVE IN A
LIQUIDATION EVENT PURSUANT TO SECTIONS 3(A) OR 3(C) ABOVE.
(B)
FOR THE PURPOSES OF THIS SECTION 4:
(I) "ACQUISITION" SHALL MEAN
(A) ANY CONSOLIDATION OR MERGER OF THE COMPANY WITH OR INTO ANY OTHER
CORPORATION OR OTHER ENTITY OR PERSON, OR ANY OTHER CORPORATE REORGANIZATION,
OTHER THAN ANY SUCH CONSOLIDATION, MERGER OR REORGANIZATION IN WHICH THE
STOCKHOLDERS OF THE COMPANY IMMEDIATELY PRIOR TO SUCH CONSOLIDATION, MERGER OR
REORGANIZATION, CONTINUE TO HOLD AT LEAST FIFTY PERCENT (50%) OF THE VOTING
POWER OF THE SURVIVING ENTITY (OR IF THE SURVIVING ENTITY IS A WHOLLY-OWNED
SUBSIDIARY, ITS PARENT) IMMEDIATELY AFTER SUCH CONSOLIDATION, MERGER OR
REORGANIZATION; OR (B) ANY TRANSACTION OR SERIES OF RELATED TRANSACTIONS TO
WHICH THE COMPANY IS A PARTY IN WHICH IN EXCESS OF FIFTY PERCENT (50%) OF THE
COMPANY'S VOTING POWER IS TRANSFERRED; PROVIDED THAT AN ACQUISITION SHALL NOT
INCLUDE (X) ANY CONSOLIDATION OR MERGER EFFECTED EXCLUSIVELY TO CHANGE THE
DOMICILE OF THE COMPANY, OR (Y) ANY TRANSACTION OR SERIES OF TRANSACTIONS
PRINCIPALLY FOR BONA FIDE EQUITY FINANCING PURPOSES IN WHICH CASH IS RECEIVED BY
THE COMPANY OR ANY SUCCESSOR OR INDEBTEDNESS OF THE COMPANY IS CANCELLED OR
CONVERTED OR A COMBINATION THEREOF; AND (II) "ASSET TRANSFER" SHALL MEAN A SALE,
LEASE OR OTHER DISPOSITION OF ALL OR