authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more class or series of stock that may be required by the terms of the Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.
(b) Class D Protective Provisions. At any time when at least seven hundred seventy-three thousand two hundred seventy-six (773,276) shares of Class D Common Stock are outstanding (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class D Common Stock), the Corporation shall not, either directly or indirectly, by amendment, merger, consolidation or otherwise, effect any of the following without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote (as the case may be) of the holders of more than fifty percent (50%) of the Corporations issued and outstanding Class D Common Stock, voting as a separate class:
(i) any Liquidation Event or any liquidation, dissolution, merger, or sale of any or all of the stock or assets of the Corporation in which the holders of Class D Common Stock (or any shares of capital stock issued upon conversion of Class D Common Stock) do not receive in cash at the closing of any such event or occurrence a price equal to or greater than the Class D Original Issue Price for each outstanding share of Class D Common Stock;
(ii) the payment of dividends or redemption or repurchase of stock or options by the Corporation (other than stock repurchases from former employees or consultants in connection with the cessation of their employment/services at the lower of fair market value or cost);
(i) any amendment of the Corporations Fourth Amended and Restated Certificate of Incorporation or By-laws;
(iii) any public offering of the Corporations debt or equity securities;
(iv) any action that authorizes, creates or issues shares of capital stock of the Corporation other than pursuant to the Corporations stock option or equity incentive plans existing as of the date hereof;
(v) increase the number of shares authorized under the Corporations stock option or equity incentive plans;
(vi) any action that authorizes, creates or issues shares of any class of stock having preferences superior to or on parity with the Class D Common Stock;
(vii) any action that alters, changes or waives the rights, preferences or privileges of any of terms the Class D Common Stock; or
(viii) any increase in the number of authorized shares of Class D Common Stock.