outstanding; provided, however, that a holder may, upon written notice to us, elect to increase or decrease the Beneficial Ownership Limitation (not to exceed the limits under Nasdaq Marketplace
Rule 5635(b), to the extent applicable), with any increase to be effective only after 61 days from delivery of such notice.
Liquidation Preference
. In the event of our liquidation, dissolution, or winding up, holders of the Series F
Preferred Stock will receive a payment equal to the amount that would be paid on the common stock underlying the Series F Preferred Stock, determined on an
as-converted
basis.
Voting Rights.
The shares of Series F Preferred Stock will generally have no voting rights, except as
required by law and except that the consent of holders of a majority of the outstanding Series F Preferred Stock will be required to amend the terms of the Series F Preferred Stock.
The shares of Series F Preferred Stock will not be entitled to receive any dividends, except to the extent that dividends are paid on our
common stock, in which case the holders of the Series F Preferred Stock shall be entitled to participate in such dividends on an
as-converted
basis.
Redemption
. We are not obligated to redeem or repurchase any shares of Series F Preferred Stock. The shares
of Series F Preferred Stock are not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous fund provisions.
Fundamental Transaction.
If a fundamental transaction (as defined below) occurs while any of the Series F Preferred Stock is outstanding, then upon any subsequent conversion
of this Series F Preferred Stock the holders shall have the right to receive, in lieu of the right to receive the shares of our common stock that would have been issuable upon such conversion immediately prior to the occurrence of such fundamental
transaction, the same kind and amount of securities, cash or property as such holder would have been entitled to receive upon the occurrence of such fundamental transaction if it had been, immediately prior to such fundamental transaction, the
holder of one share of our common stock, the Alternate Consideration. For purposes of any such subsequent conversion, the determination of the conversion ratio of the Series F Preferred Stock will be adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of our common stock in the fundamental transaction, and we will adjust the conversion ratio of the Series F Preferred Stock in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of our common stock are given any choice as to the securities, cash or property to be received in a fundamental transaction, then the holders of the Series F
Preferred Stock will be given the same choice as to the Alternate Consideration they receive upon any conversion of this Series F Preferred Stock.
To the extent the surviving corporation following a fundamental traction is not our company, any successor or surviving entity in the fundamental transaction is required to file a new certificate of
designations with the same terms and conditions and issue to the holders of the Series F Preferred Stock new preferred stock consistent with the foregoing provisions. The terms of any agreement to which we are a party and pursuant to which a
fundamental transaction is effected shall include terms requiring any such successor or surviving entity to assume all our obligations set forth in the certificate of designations of the Series F Preferred
Fundamental transaction means (A) we affect any merger or consolidation with or into another person (other than a merger
in which we are the surviving or continuing entity and our common stock is not exchanged for or converted into other securities, cash or property), (B) we effect any sale of all or substantially all of our assets in one transaction or a series of
related transactions, (C) any tender offer or exchange offer (whether by us or another person) is completed pursuant to which more than 60% of the common stock not held by us or such person is exchanged for or converted into other securities,
cash or property, or (D) we effect any reclassification of our common stock or any compulsory share exchange pursuant (other than as a result of specified dividends, subdivisions or combinations) to which our common stock is effectively
converted into or exchanged for other securities, cash or property.
Exchange Listing.
We do not
plan on making an application to list the Series F Preferred Stock on The Nasdaq Capital Market, any national securities exchange or other nationally recognized trading
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