Common use of Merger Event Clause in Contracts

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "Reference Property") that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred common stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors) . In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. Notwithstanding anything to the contrary contained herein, in the event of a Merger Event in which the consideration is (i) cash, (ii) freely tradable stock of a publicly traded acquirer or (iii) a combination thereof, either (A) Warrantholder shall exercise its purchase right under this Agreement and such exercise will be deemed effective immediately prior to the closing of such Merger Event or (B) if Warrantholder elects not to exercise this Agreement, this Agreement and the right to purchase Common Stock as granted herein will expire upon the closing of such Merger Event. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end ensure that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of the Company under this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations of cash and/or readily marketable securitiesthe Company under this Agreement and any such assumption shall contain such additional provisions to protect the interests of the Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors and reasonably acceptable to the Warrantholder). In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to shall be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of the Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors); notwithstanding the above, if the Reference property is cash or shares of stock of a publicly traded company with a value on the date of the closing of the Merger Event consists solely of cash and/or readily marketable securitiesnot less than two (2) times the aggregate Purchase Price, Warrantholder shall exercise its purchase right under this Agreement and such exercise will be deemed effective immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time Warrantholder agrees that if there shall be a Merger Event, either Warrantholder shall exercise its conversion or purchase right under this Agreement and such exercise will be deemed effective immediately prior to the consummation of such Merger Event, or (ii) if Warrantholder elects not to exercise this Agreement prior to the Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "Reference Property") that of the Warrantholder would have received in connection with successor corporation resulting from such Merger Event that would have been issuable if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such casethe case of (ii) above, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions number of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise shares of such purchase rightsSeries C Preferred Stock purchasable) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, and in connection with any Merger Eventsuch case, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and the case of (i) above, upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions Notwithstanding any of the foregoing, if there shall be a Merger Event in which the outstanding capital stock of the Company is acquired for either cash and/or unrestricted, freely-transferable shares of capital stock in a publicly-traded company, and Warrantholder elects not to exercise this Section 8(aAgreement in accordance with (i) shall similarly apply to successive above, this Warrant will expire upon the consummation of such Merger EventsEvent.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be In connection with a Merger EventEvent that is a Liquid Sale, thenthis Warrant shall, as a on and after the closing thereof, automatically and without further action on the part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock any party or other securities person, represent the right to receive the consideration payable on or property (collectively, "Reference Property") in respect of all Common Shares that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement are issuable hereunder as of immediately prior to the Merger Event. In any closing of such caseLiquid Sale less the Purchase Price for all such Common Shares (such consideration to include both the consideration payable at the closing of such Liquid Sale and all deferred consideration payable thereafter, appropriate adjustment if any, including, but not limited to, payments of amounts deposited at such closing into escrow and payments in the nature of earn-outs, milestone payments or other performance-based payments (as determined in good faith by the Company's Board of Directors) “Deferred Payments”)), and such Liquid Sale consideration shall be made in paid to Warrantholder as and when it is paid to the application holders of the provisions of this Agreement with respect to outstanding Common Shares. To the rights and interests of the Warrantholder after the Merger Event to the end extent that the provisions of maximum aggregate consideration per outstanding Common Share (including, without limitation, all Deferred Payments) in such Liquid Sale (assuming for such determination that all Common Shares for which this Agreement (including adjustments of the Exercise Price Warrant is then exercisable are issued and adjustments outstanding) that could, without discount to ensure that the provisions of this Section 8 shall thereafter be applicablepresent value, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for for, on or in respect of each such outstanding Common Share in accordance with the outstanding shares definitive transaction documents therefor is equal to or less than the Exercise Price in effect as of Preferred Stock in immediately prior to the initial closing thereof, then this Warrant shall, effective on and as of such Merger Event consists solely initial closing, terminate and be of cash and/or readily marketable securitiesno further force or effect. In connection with a Merger Event and upon Warrantholder's written election to the Companythat is not a Liquid Sale, the Company shall cause the successor or surviving entity to assume this Warrant Agreement to and the obligations of the Company hereunder on the closing thereof, and thereafter this Warrant shall be exchanged exercisable for the consideration that same number and type of securities or other property as the Warrantholder would have received if Warrantholder in consideration for the Common Shares issuable hereunder had chosen it exercised this Warrant in full as of immediately prior to exercise its right such closing, at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to have shares issued pursuant such closing, and subject to further adjustment from time to time in accordance with the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such considerationWarrant. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, thenthis Warrant shall, as a on and after the closing thereof, automatically and without further action on the part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock any party or other person, represent the right to receive the consideration (including, without limitation, cash, securities or other property (collectively, "“Reference Property"”)) payable on or in respect of all shares of Common Stock that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement are issuable hereunder as of immediately prior to the closing of such Merger EventEvent less the Purchase Price for all such shares of Common Stock, and such Merger Event consideration shall be paid to Warrantholder as and when it is paid to the holders of the outstanding shares of Common Stock and this Warrant shall thereupon automatically terminate. In any such case, appropriate Appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price Price, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting To the foregoing, in connection with extent this Warrant or any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of portion thereof is deemed automatically exercised pursuant to this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's written election to the CompanySection 8(a), the Company shall cause this Warrant Agreement agrees to be exchanged for promptly notify the consideration that Warrantholder would have received of the Reference Property, if any, the Warrantholder had chosen is to exercise its right to have shares issued pursuant receive by reason of such automatic exercise. Notwithstanding anything to the Net Issuance provisions contrary in this Warrant, if the aggregate fair market value of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of the Reference Property payable under this Section 8(a) is less than the aggregate Exercise Price of this Warrant, then this Warrant shall similarly apply automatically terminate immediately prior to successive the closing of such Merger EventsEvent without and Reference Property or other consideration being paid to the Warrantholder.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred Common stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors and reasonably acceptable to the Warrantholder) . In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this AgreementWarrant, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement Warrant immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price Price, the ability of the Warrantholder to elect the class and series of Preferred Stock as set forth in the definition thereof, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securitiesMarketable Securities (a “Liquid Sale”), in which case this Warrant shall, upon the closing of such Liquid Sale, automatically and without further action on the part of any party or other person, represent the right to receive, in lieu of the shares of Preferred Stock, or other capital stock of the Company for which this Warrant is then exercisable, that are issuable hereunder as of immediately prior to the closing of such Liquid Sale, the consideration payable on or in respect of such shares of Preferred Stock, or other capital stock of the Company for which this Warrant is then exercisable, in such Liquid Sale less the Purchase Price for all such shares of Preferred Stock (or other capital stock of the Company for which this Warrant is then exercisable), such consideration to include both the consideration payable at the closing of such Liquid Sale and any deferred consideration payable on or in respect of such shares of Preferred Stock, or other capital stock of the Company for which this Warrant is then exercisable, thereafter, if any, including, but not limited to, payments of amounts deposited at such closing into escrow and payments in the nature of earn-outs, milestone payments or other performance-based payments, and such consideration shall become payable to the Warrantholder as and when it is paid to the holders of the outstanding shares of Preferred Stock, or other capital stock of the Company for which this Warrant is then exercisable (such aggregate consideration, the “Aggregate Liquid Sale Consideration”); provided, further, that in connection with a Liquid Sale where the Aggregate Liquid Sale Consideration would be less than the aggregate Exercise Price in effect immediately prior to the consummation of such Liquid Sale, then this Agreement will automatically expire effective as of immediately prior to the consummation of such Liquid Sale. In connection with a Merger Event and upon the Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that the Warrantholder would have received if the Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event as referred in Section 1 under (ii) of the definition of Merger Event, then, as a part of such Merger Event, lawful provision appropriate adjustments shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock shares, or other securities or property monetary compensation (collectively, "“Reference Property") ”), that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement the Warrants immediately prior to the Merger Event. In any such case, appropriate adjustment adjustments (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 7 shall thereafter be applicable, as nearly as possible, to the purchase subscription rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase subscription rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for Reference Property includes shares or in respect other securities and assets of an entity other than the outstanding shares of Preferred Stock successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's written election to the Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions ’s Board of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such considerationDirectors). The provisions of this Section 8(a7(a) shall similarly apply to successive Merger Events.

Merger Event. If Except as provided in Section 2, if at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred capital stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and number of shares of Common Stock purchasable and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If (i) Subject to other provisions of this Section 8, if at any time during the term of this Agreement there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred capital stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price , and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that , subject to the foregoing assumption requirement shall not apply if following subsections (ii) and (iii). (ii) If, with respect to any Merger Event, the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is greater than the outstanding shares Exercise Price in effect as of Preferred Stock in immediately prior to the closing of such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's written election to the CompanyEvent, then the Company shall cause this Warrant Agreement to be exchanged for the consideration that the Warrantholder would have received in accordance with the definitive transaction documents, if the Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement prior to the consummation of such Merger Event (without having to actually exercising exercise such right, acquiring such shares and exchanging such shares for ). Upon payment to Warrantholder of such consideration. , the Agreement will automatically terminate and be of no further force or effect. (iii) If, with respect to any Merger Event, the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock issuable hereunder is less than or equal to the Exercise Price in effect as of immediately prior to the closing of such Merger Event, and (A) the consideration to be paid for or in respect of the outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities (a “Cash/Public Stock Acquisition”), this Agreement shall automatically terminate and be of no further force or effect upon the closing of such Cash/Public Stock Acquisition; or (B) such Merger Event is not a Cash/Public Stock Acquisition (“Non-Qualified Acquisition”), then the successor or surviving entity shall assume the obligations of this Agreement in accordance with clause (i) above; provided however, that the assumption of this Warrant is not required in the event of a Non-Qualified Acquisition if the Warrantholder receives a cash amount equal to the product of the number of shares of Common Stock issuable hereunder times the Exercise Price immediately prior to or concurrently with the closing of such Non-Qualified Acquisition, and upon Warrantholder’s receipt of such payment, this Agreement shall automatically terminate and be of no further force or effect. (iv) The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that if the Reference Property includes shares of stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of the Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors); provided, further, that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Preferred Stock is at least two (2) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this AgreementWarrant, the number of shares of preferred stock Common Stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement Warrant immediately prior to the Merger Event. In any such case, if the term of this Warrant has not expired pursuant to Section 2 hereof, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement Warrant with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement Warrant (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement Warrant in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this AgreementWarrant; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Warrant and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors and reasonably acceptable to the Warrantholder). In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there a Merger Event shall be Merger Eventoccur, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder Hercules shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred capital stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder Hercules would have received in connection with such Merger Event if Warrantholder Hercules had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to Hercules) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder Hercules after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesHercules as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors and reasonably acceptable to Hercules). In connection with a Merger Event and upon Warrantholder's Hercules’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder Hercules would have received if Warrantholder Hercules had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred common stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end extent that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Preferred Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities securities, cash or other property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger EventEvent in which the consideration received or to be received by the Company’s stockholders consists of other than cash and/or readily tradable securities, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors) . In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors). In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at (a) Following the occurrence of any time there shall be Merger Event, thenthe Issuer will, in its sole and duly executed discretion (billiges Ermessen) but in accordance with established market practice, determine whether or not the relevant Products shall continue. (b) If the Issuer determines that the relevant Products shall continue, the Calculation Agent may make such adjustment, in its sole and duly executed discretion (billiges Ermessen), but in accordance with established market practice, as a part of such Merger Eventit considers appropriate, lawful provision shall be made so that if any, to the Warrantholder shall thereafter be entitled to receiveStrike Level, upon exercise of this Agreementthe Barrier, the formula for the Redemption Amount and/or the Redemption Amount set out in the Final Termsheet, the number of shares Underlyings to which each Product relates, the number of preferred stock Shares comprised in a Basket, the amount, the number of or type of Shares or other securities which may be delivered under such Products and, in any case, any other variable relevant to the exercise, redemption, settlement or property payment terms of the relevant Products and/or any other adjustment. Any such change or adjustment shall be effective as soon as practical after the date upon which all, or substantially all, holders of the Shares (collectivelyother than, "Reference Property"in the case of a takeover, Shares owned or controlled by the offeror) become bound to transfer the Shares held by them. (c) If the Issuer determines that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior relevant Products shall be terminated, then the relevant Products shall cease to be exercisable or redeemable as of the Merger Event. In Date (or, in the case of any Products which have been exercised or redeemed but remain unsettled, the entitlements of the respective Investors to receive Shares or the Redemption Amount, as the case may be, pursuant to such case, appropriate adjustment (as determined in good faith by exercise or redemption shall cease) and the CompanyIssuer's Board of Directors) obligations under the Products shall be made satisfied in the application full upon payment of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to Redemption Amount (as defined below). (d) For the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.purposes hereof:

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and the number and nature of the security issuable on exercise hereof, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided provided, that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, delivered not later than the later to occur of (i) five (5) days prior to the anticipated closing date thereof set forth in the Company’s written notice to the Warrantholder of such Merger Event pursuant to Section 8(g) below, or (ii) ten (10) days after the Warrantholder’s actual receipt of such Company notice, shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred Common stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors and reasonably acceptable to the Warrantholder). In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end extent that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Preferred Stock is at least three (3) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of common stock, preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if the Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price Price, the ability of the Warrantholder to elect the class and series of Warrant Shares as set forth in the definition thereof and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply with respect to a Merger Event (other than the Reorganization or similar internal reorganization) if (i) the consideration to be paid for or in respect of the outstanding shares of Preferred Stock Warrant Shares in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding Warrant Share is at least three (3) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon the Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that the Warrantholder would have received if the Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and the number and nature of the security issuable on exercise hereof, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided provided, that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, delivered not later than the later to occur of (i) five (5) days prior to the anticipated closing date thereof set forth in the Company’s written notice to the Warrantholder of such Merger Event pursuant to Section 8(g) below , or (ii) ten (10) days after the Warrantholder’s actual receipt of such Company notice, shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors, or other governing body of the successor entity, and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foreogoing (as determined in good faith by the Company’s Board of Directors) . In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock Common Stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Preferred Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time prior to the exercise of this Warrant there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this AgreementWarrant, the number of shares of preferred stock or other securities or property (collectively, "Reference Property") that of the Warrantholder would have received in connection with successor corporation resulting from such Merger Event that would have been issuable if Warrantholder had exercised this Agreement Warrant immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement Warrant with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement Warrant (including adjustments of the Exercise Price and adjustments to ensure that the provisions number of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise shares of such purchase rightsstock purchasable) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the Company will use reasonable efforts (as determined by the Company in its sole discretion) to cause the successor or surviving entity shall to assume the obligations of this Agreement; provided that Warrant. If the foregoing assumption requirement shall obligations of this Warrant are not apply if the consideration to be paid for or assumed in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a the Merger Event and upon Warrantholder's written election to the CompanyEvent, the Company shall cause give Warrantholder written notice at least five (5) days prior to the closing of the Merger Event of such fact. In such event, notwithstanding any other provision of this Agreement to the contrary, Warrantholder may immediately exercise this Warrant in the manner specified in this Agreement with such exercise effective immediately prior to be exchanged closing of the Merger Event. If Warrantholder elects not to exercise this Warrant, then this Warrant will terminate immediately prior to the closing of the Merger Event. If a Merger Event occurs at any time before the shares of Common Stock subject to this Warrant are listed for trading on the American Stock Exchange and the successor or surviving entity does not agree to assume the obligations of this Warrant, then the Warrantholder shall receive liquidated damages in an amount equal to the difference between the Exercise Price of the Warrant as then in effect and the consideration that Warrantholder would have received if Warrantholder had chosen per share payable to exercise its right to have shares issued the holders of the Common Stock in the transaction pursuant to which the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger EventsEvent occurs.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock Preferred Units or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price Price, the ability of the Warrantholder to elect the class and series of Preferred Units as set forth in the definition thereof, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Preferred Stock Units in such Merger Event consists solely of cash and/or readily marketable securitiessecurities and (ii) such Merger Event is not an Alternative Merger Event. In connection with a Merger Event and upon the Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that the Warrantholder would have received if the Warrantholder had chosen to exercise its right to have shares units issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares units and exchanging such shares units for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events. In the event the Warrantholder elects not to exercise its right to purchase units pursuant to this Agreement in connection with a Merger Event consisting solely of cash and/or readily marketable securities and that is not an Alternative Merger Event, then this Agreement will expire immediately upon the consummation of such Merger Event.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock Common Stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, if the term of this Warrant has not expired pursuant to Section 2 hereof, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securitiesis a Qualified Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. For the avoidance of doubt, the terms of this Section 8(a) shall be inapplicable to a Merger Event that is a Public Acquisition. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this AgreementWarrant, the number kind, amount and value of shares of preferred stock Common Stock or other securities or property (collectivelyof the successor, "Reference Property") that the Warrantholder would have received in connection with surviving or purchasing corporation resulting from, or participating in, such Merger Event that would have been issuable if Warrantholder had exercised this Agreement Warrant immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement Warrant with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement Warrant (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rightsPrice) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor successor, surviving or surviving purchasing entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement Warrant. The provisions of this Section 8(a) shall not similarly apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such successive Merger Event consists solely of cash and/or readily marketable securitiesEvents. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred capital stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end ensure that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of the Company under this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations of cash and/or readily marketable securitiesthe Company under this Agreement and any such assumption shall contain such additional provisions to protect the interests of the Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors and reasonably acceptable to the Warrantholder). In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to shall be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities and in connection with any such Merger Event in which consideration consists solely of cash and/or readily marketable securities, the Warrant will be deemed to be exercised contingent upon the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares shares, and exchanging such shares for such consideration. The provisions If the successor or surviving entity in a Merger Event shall refuse to assume the obligations of the Company pursuant to this Section 8(aAgreement, the Company shall give the Warrantholder written notice of at least five (5) business days prior to the closing of the Merger Event of such fact and the Warrantholder shall similarly apply have the option to successive put this Warrant to the Company for a per share amount equal to the difference between the fair market value of the Merger EventsEvent consideration (as reasonably determined by the Company’s board) payable for one share of Preferred Stock and the Exercise Price.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise surrender of this Agreement, either (i) the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger EventEvent net of such Exercise Price; or (ii) the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration (“Warrant Surrender”). In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities, in which case, such Warrant (subject to Section 3(c)) will expire immediately prior to the consummation of such Merger Event unless otherwise exercised or exchanged for such cash and/or readily marketable securities as set forth herein. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock Common Stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Preferred Common Stock in such Merger Event consists solely of cash and/or readily marketable securitiessecurities and (ii) such Merger Event is not an Alternative Merger Event. In connection with a Merger Event and upon the Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that the Warrantholder would have received if the Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events. In the event the Warrantholder elects not to exercise its right to purchase shares pursuant to this Agreement in connection with a Merger Event consisting solely of cash and/or readily marketable securities and that is not an Alternative Merger Event, then this Agreement will expire immediately upon the consummation of such Merger Event.

Merger Event. If at any time there (i) In connection with a Merger Event that is not a Public Acquisition, the Company shall cause the successor or surviving entity to assume this Warrant and the obligations of the Company hereunder on the closing thereof, and thereafter this Warrant shall be Merger Event, then, as a part exercisable for the same number and type of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock securities or other securities or property (collectively, "Reference Property") that as the Warrantholder would have received in connection with such Merger Event if Warrantholder consideration for the shares of Common Stock issuable hereunder had it exercised this Agreement Warrant in full as of immediately prior to such closing, at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to such closing, and subject to further adjustment from time to time in accordance with the provisions of this Warrant. (ii) In the event of a Public Acquisition in which the fair market value of one share of Common Stock as determined in accordance with Section 3(a) above would be greater than the Exercise Price in effect as of immediately prior to the Merger Event. In any closing of such casePublic Acquisition, appropriate adjustment (as determined and the Warrantholder has not previously exercised this Warrant in good faith by the Company's Board full, then, in lieu of Directors) shall be made in the application Holder’s exercise of the provisions unexercised portion of this Agreement with respect Warrant, this Warrant shall, as of immediately prior to such closing (but subject to the rights occurrence thereof) automatically cease to represent the right to purchase shares of Common Stock and interests shall, from and after such closing, represent solely the right to receive the aggregate consideration that would have been payable in such Public Acquisition on and in respect of the Warrantholder after the Merger Event all shares of Common Stock for which this Warrant was exercisable as of immediately prior to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, net of the successor or surviving entity shall assume Purchase Price therefor, as if such shares had been issued and outstanding to the obligations Warrantholder as of this Agreement; provided that immediately prior to such closing, as and when such consideration is paid to the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect holders of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securitiesCommon Stock. In connection the event of a Public Acquisition in which the fair market value of one share of Common Stock as determined in accordance with a Merger Event and upon Warrantholder's written election Section 3(a) above would be equal to or less than the Exercise Price in effect as of immediately prior to the Companyclosing of such Public Acquisition, the Company shall cause this Warrant Agreement will automatically and without further action of any party terminate as of immediately prior to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.closing

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger EventEvent in which the consideration received or to be received by the Company’s stockholders consists of other than cash and/or readily tradeable securities, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foreogoing (as determined in good faith by the Company’s Board of Directors) . In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there a Merger Event shall be Merger Eventoccur, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder Hercules shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred capital stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder Hercules would have received in connection with such Merger Event if Warrantholder Hercules had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder Hercules after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesHercules as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors). In connection with a Merger Event and upon Warrantholder's Hercules’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder Hercules would have received if Warrantholder Hercules had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Common Stock in such Merger Event consists solely of cash and/or readily marketable securitiessecurities (including, for the avoidance of doubt, freely tradable stock of a publicly traded acquirer). In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. Notwithstanding anything to the contrary contained herein, but subject to the automatic exercise provisions contained in Section 3(b), above, in the event of a Merger Event in which the consideration to be paid for or in respect of the outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, either (A) Warrantholder shall exercise its purchase right under this Agreement and such exercise will be deemed effective immediately prior to the closing of such Merger Event or (B) if Warrantholder elects not to exercise this Agreement, this Agreement and the right to purchase Common Stock as granted herein will expire upon the closing of such Merger Event. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred capital stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's Board of Disinterested Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger EventEvent in which the consideration received or to be received by the Company’s stockholders consists of other than cash and/or readily tradeable securities, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Preferred Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securitiesthe Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Disinterested Directors). In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "“Reference Property"”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided provided, that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securitiesMarketable Securities, which, for the avoidance of doubt, includes any right to receive cash and/or Marketable Securities following the closing of such Merger Event pursuant to an escrow, earn-out, milestone, royalty or other similar arrangement. “Marketable Securities” means securities that are freely traded on The OTC Bulletin Board, The NASDAQ Global Market, The NASDAQ Global Select Market, The NASDAQ Capital Market, the New York Stock Exchange, NYSE Area, the NYSE MKT, or the OTCQX Marketplace or the OTCQB Marketplace operated by OTC Markets Group Inc. (or any successor to any of the foregoing) or any other similar exchanges worldwide. Marketable Securities shall include any such securities issued in a Merger Event regardless of whether such securities are subject to a lock-up agreement, provided that any such lock-up agreement applicable to the Warrantholder shall only be on the same terms as (or more favorable to the Warrantholder) and no more restrictive than the lock-up agreed to and in full force effect with respect to all holders of Preferred Stock and by all executive officers, directors and holders of at least three (3%) of the outstanding equity securities of the Company (any waiver of such lock-up for any of the foregoing shall automatically result in a waiver of the same for the Warrantholder); and the Company shall confirm the same in writing to the Warrantholder as of the date of the Merger Event. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a reorganization, recapitalization, reclassification, consolidation or merger involving the Company in which the Common Stock is converted into or exchanged for securities, cash or other property or a Merger EventEvent (collectively, a “Reorganization”), then, as a part of such Merger EventReorganization, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number kind and amount of shares of preferred stock securities, cash or other securities or property (collectively, "Reference Property") resulting from such Reorganization that the Warrantholder would have received in connection with such Merger Event been issuable if Warrantholder had exercised this Agreement immediately prior to the Merger EventReorganization. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event Reorganization to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions number of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise shares of such purchase rightsCommon Stock purchasable) shall continue to be applicable in their entirety, entirety and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger EventReorganization, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event Reorganization and upon Warrantholder's ’s written election to the CompanyCompany at least ten (10) days prior to the effectiveness of such Reorganization, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement Agreement, without actually exercising such right, acquiring such shares shares, and exchanging such shares for such consideration. The In any such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions set forth herein with respect to the rights and interests thereafter of the Warrantholder, to the end that the provisions set forth in this Section 8 (including without limitation provisions with respect to changes in and other adjustments of the Exercise Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities, cash or other property thereafter deliverable upon the exercise of this Section 8(a) shall similarly apply to successive Merger EventsWarrant.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock or other securities or property (collectively, "Reference Property") that of the Warrantholder would have received in connection with surviving or successor entity resulting from such Merger Event that would have been issuable if Warrantholder had exercised this Agreement in full immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's ’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that number of shares of the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rightsClass purchasable) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, (i) this Warrant shall terminate upon the closing of a Liquid Sale to the extent not previously exercised, and (ii) in connection with any a Merger EventEvent that is not a Liquid Sale, upon the closing thereof, Company shall cause the successor or surviving entity shall to assume this Warrant and the obligations of the Company hereunder on the closing thereof, and thereafter this Agreement; provided that Warrant shall be exercisable for the foregoing assumption requirement shall not apply if same number and type of securities or other property as the Warrantholder would have received in consideration to be paid for or in respect the shares of the outstanding shares Class issuable hereunder had it exercised this Warrant in full as of Preferred Stock immediately prior to such closing, at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to such Merger Event consists solely closing, and subject to further adjustment from time to time in accordance with the provisions of cash and/or readily marketable securitiesthis Warrant. In connection with a Merger Event and upon Warrantholder's ’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, thenthis Warrant shall, as a on and after the closing thereof, automatically and without further action on the part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of preferred stock any party or other person, represent the right to receive the consideration (including, without limitation, cash, securities or other property (collectively, "“Reference Property"”)) payable on or in respect of all shares of Preferred Stock that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement are issuable hereunder as of immediately prior to the closing of such Merger EventEvent less the Purchase Price for all such shares of Preferred Stock, and such Merger Event consideration shall be paid to Warrantholder as and when it is paid to the holders of the outstanding shares of Preferred Stock and this Warrant shall thereupon automatically terminate. In any such case, appropriate Appropriate adjustment (as determined in good faith by the Company's ’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price Price, the ability of the Warrantholder to elect the class and series of Preferred Stock as set forth in the definition thereof, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting To the foregoing, in connection with extent this Warrant or any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of portion thereof is deemed automatically exercised pursuant to this Agreement; provided that the foregoing assumption requirement shall not apply if the consideration to be paid for or in respect of the outstanding shares of Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities. In connection with a Merger Event and upon Warrantholder's written election to the CompanySection 8(a), the Company shall cause this Warrant Agreement agrees to be exchanged for promptly notify the consideration that Warrantholder would have received of the Reference Property, if any, the Warrantholder had chosen is to exercise its right to have shares issued pursuant receive by reason of such automatic exercise. Notwithstanding anything to the Net Issuance provisions contrary in this Warrant, if the aggregate fair market value of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of the Reference Property payable under this Section 8(a) is less than the aggregate Exercise Price of this Warrant, then this Warrant shall similarly apply automatically terminate immediately prior to successive the closing of such Merger EventsEvent without and Reference Property or other consideration being paid to the Warrantholder.