Common use of Merger or Sale of Assets Clause in Contracts

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers or asset acquisitions.

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer directly or indirectly hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers mergers, or asset acquisitions.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Convertible Security then Outstanding shall have the right thereafter, during the period such Warrant Convertible Security shall remain outstandingbe convertible as specified in Section 1201, to exercise convert such Warrant Convertible Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of L Shares of the Company into which such Convertible Security might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company, or the Company shall cause the Trustee to give such notice, to the Holder of each Convertible Security as provided in Section 106 promptly upon such execution. Neither the Trustee, any Paying Agent nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Convertible Securities upon the conversion of their Convertible Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect be a party to any transaction (including any (i) recapitalization or reclassification of the Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination of the Common Stock), (ii) any consolidation of the Company with, or merger of the Company with or into into, any other person, any merger of another person into the Company (other than a merger which does not result in which those holding more than 50% a reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation or merger no longer hold more than 50% of the voting power of the surviving entityCompany), or (iiiii) the any sale or other disposition transfer of all or substantially all of the Company's assets of the Company or (iv) any compulsory share exchange) pursuant to any which the Common Stock is converted into the right to receive other personsecurities, in cash or other property, then lawful provision shall be made as part of the terms of such transaction whereby the Holder of each Security then Outstanding shall have the right thereafter to convert such Security only into (subject to funds being legally available for such purpose under applicable law at the time of such conversion) the kind and amount of securities, cash and other property receivable upon such transaction by a way that holder of the holders number of shares of Common Stock shall be entitled into which such Security might have been converted immediately prior to receive cash, securities, evidences of indebtedness such transaction. The Company or other property with respect to the person formed by such consolidation or in exchange for their resulting from such merger or which acquired such assets or which acquired the Company's shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period supplemental indenture establishing such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretorights. Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 13.11 shall similarly apply to successive consolidations, mergers or asset acquisitionstransactions of the foregoing type.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security of a series then Outstanding that is convertible into Common Stock of the Company shall have the right thereafterthereafter (which right shall be the exclusive conversion right thereafter available to said Holder), during the period such Warrant Security shall remain outstandingbe convertible, to exercise convert such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a "Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), 14.9 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article or in accordance with the terms of the supplemental indenture or Board Resolutions setting forth the terms of such adjustments. The foregoing above provisions of this Section 14.9 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security of a series that is convertible into Common Stock of the Company as provided in Section 1.6 promptly upon such execution. Neither the Trustee nor any conversion agent, if any, shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities of a series convertible into Common Stock of the Company upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's ’s assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's ’s choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers or asset acquisitions.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger that does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Warrant Security shall remain outstandingbe convertible as specified in Section 12.1, to exercise convert such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not (A) a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a "Constituent Person"), or (B) an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), 12.11 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments that, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 12.11 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 1.6 promptly upon such execution. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each % Debenture then Outstanding shall have the right thereafter, during the period such Warrant % Debenture shall remain outstandingbe convertible as specified in Section 1401, to exercise convert such Warrant % Debenture only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such % Debenture might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company, or the Company shall cause the Trustee to give such notice, to the Holder of each % Debenture as provided in Section 106 promptly upon such execution. Neither the Trustee, any Paying Agent nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of ____% Debentures upon the conversion of their ____% Debentures after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably unreasonbly withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers or asset acquisitions.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security of a series then Outstanding that is convertible or exchangeable into Common Stock of the Company shall have the right thereafterthereafter (which right shall be the exclusive conversion or exchange right thereafter available to said Holder), during the period such Warrant Security shall remain outstandingbe convertible or exchangeable, to exercise convert or exchange such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted or exchanged immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a “Constituent Person”), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised (“Non-electing Share”), then for the purpose of this Section 3(d)Section, the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article or in accordance with the terms of the supplemental indenture or Board Resolutions setting forth the terms of such adjustments. The foregoing above provisions of this Section 1409 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security of a series that is convertible or exchangeable into Common Stock of the Company as provided in Section 106 promptly upon such execution. Neither the Trustee nor any conversion or exchange agent, if any, shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities of a series convertible or exchangeable into Common Stock of the Company upon the conversion or exchange of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer directly or indirectly hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers or asset acquisitions.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or of the Parent with any other Person, any merger of the Company with Parent into another Person or of another Person into the Parent (other than a merger which does not result in any other person in which those holding more than 50% reclassification, conversion, exchange or cancellation of outstanding shares of common stock of the voting power of the Company prior to the consolidation Parent) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the Company's assets to any other personProperties of the Parent, whether or not the Notes become due and payable as provided in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereofthis Agreement, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such properties and assets, as the case may be, shall execute and deliver to you and the Holderother holders of the Notes a written agreement, without payment of any additional consideration therefor, a new Warrant (in form and substance approved by reasonably satisfactory you and the Holderother holders of the Notes, which approval shall not be unreasonably withheld or delayed) providing that you and the Holder other holders of the Notes shall have the right thereafter, during the period such Warrant the Notes shall remain outstandingbe convertible as specified in Section 7.4(a), to exercise such Warrant convert the Notes only into the kind and amount of cashSecurities, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease (including any Common Stock retainable) by a holder of the number of shares of Common Stock of the Parent into which the Notes might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Parent, (i) is not a Person with which the Parent consolidated, into which the Parent merged or which merged into the Parent or to which such conveyance, sale, transfer or lease was made, as the case may be (a "CONSTITUENT PERSON"), or an Affiliate of a Constituent Person and (ii) failed to exercise its rights of election, if any, as to the kind or amount of Securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of Securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease is not the same for purposes each share of Common Stock of the Parent held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("NON-ELECTING SHARE"), then for the purpose of this Section 3(d), 7.4(k) the kind and amount of cashSecurities, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant agreement shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantagreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 37.4. The foregoing above provisions of this Section 7.4(k) shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such an agreement shall be given by the Parent to you and the other holders of the Notes promptly upon such execution. In this paragraph, "securities of the kind receivable" upon such consolidation, merger, conveyance, transfer, sale or lease by a holder of Common Stock means Securities that, among other things, are registered and transferable under the Securities Act, and listed and approved for quotation in all Securities markets, in each case to the same extent as such Securities so receivable by a holder of Common Stock.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company Saks Incorporated with or into any other person Person, any merger of another Person with or into Saks Incorporated (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of the voting power outstanding shares of the Company prior to the consolidation Common Stock) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereofSaks Incorporated, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Warrant Security shall remain outstandingbe convertible as specified in Section 1301, to exercise convert such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock into which such Security might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock (i) is not a Person with which Saks Incorporated consolidated or merged with or into or which merged into or with Saks Incorporated or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), 1311 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 1311 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company, or the Company shall cause the Trustee to give such notice, to the Holder of each Security as provided in Section 106 promptly upon such execution. Neither the Trustee, any Paying Agent nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request. SECTION 1312.

Merger or Sale of Assets. In the event that case of any consolidation of the Company shall effect (i) with any consolidation or other Person, any merger of the Company with into another Person or of another Person into the Company (other than a merger which does not result in any other person in which those holding more than 50% reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the properties and assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such properties and assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Warrant Security shall remain outstandingbe convertible as specified in Section 12.1, to exercise convert such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease (including any Common Stock retainable) by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, (a) assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated, into which the Company merged or which merged into the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a "Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), 12.11 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company orNon-electing Shares), in the case of a and (b) further assuming that, if such consolidation, merger, conveyance, transfer, sale or dispositionlease occurs before the first date on which Securities may be converted as provided herein, such Security was convertible immediately prior to the other parties theretotime of such occurrence at the initial Conversion Rate as adjusted from the first original issue date of the Securities to such time as provided herein. Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 12.11 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 1.6 promptly upon such execution. In this paragraph, "securities of the kind receivable" upon such consolidation, merger, conveyance, transfer, sale or lease by a holder of Common Stock means securities that, among other things, are registered and transferable under the Securities Act, and listed and approved for quotation in all securities markets, in each case to the same extent as such securities so receivable by a holder of Common Stock. Neither the Trustee nor any Paying Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be fully protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the Company's assets to any other person, of the Company in such one transaction or a way that the holders series of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereofrelated transactions, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Warrant Security shall remain outstandingbe convertible as specified in Section 1301, to exercise convert such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Persons or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non- electing Share"), then for the purpose of this Section 3(d), 1311 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 1311 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 106 promptly upon such execution. Neither the Trustee, any Paying Agent, nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request. For purposes of preventing duplicative adjustments, if and to the extent Section 1311 applies to any event or occurrence, Section 1304 shall not apply.

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for For purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers or asset acquisitions.

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer directly or indirectly hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefortherefore, a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers mergers, or asset acquisitions.

Merger or Sale of Assets. In the event that case of any consolidation of the Company shall effect (i) any consolidation with, or merger of the Company with or into into, any other person Person, any merger of another Person into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding Common Shares of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entity, or (ii) the any sale or other disposition transfer of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Warrant Security shall remain outstandingbe convertible as specified in Section 1201, to exercise convert such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes transfer by a holder of this Section 3(d), the kind and amount number of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders shares of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice shall be deemed to be whatever choice is made by a plurality Shares of the holders of Common Stock not affiliated with the Company or, in the case of a into which such Security might have been converted immediately prior to such consolidation, merger, sale or dispositiontransfer, and assuming such holder of Common Shares of the Company (i) is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be ("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other parties theretoproperty receivable upon such consolidation, merger, sale or transfer (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer is not the same for each Common Share of the Company held immediately prior to such consolidation, merger, sale or transfer by Persons other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 1211 the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by the holders of each Non-electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Non-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 1211 shall similarly apply to successive consolidations, mergers mergers, sales or asset acquisitionstransfers. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 106 promptly upon such execution.

Merger or Sale of Assets. In the event that Subject to any applicable right of each Holder of Securities to cause the Company shall effect (i) to purchase his Securities upon a Repurchase Event pursuant to the provisions of Article Fourteen of this Indenture, in case of any consolidation of the Company with, or merger of the Company with or into into, any other person in which those holding more than 50% Person, any merger of the voting power of another Person into the Company prior to the consolidation or (other than a merger no longer hold more than 50% of the voting power of the surviving entitywhich does not result in any reclassification, conversion, exchange, or (iicancellation of outstanding shares of Common Stock) the or any sale or other disposition transfer of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security then outstanding shall have the right thereafter, during the period such Warrant Security shall remain outstandingbe convertible as specified in Section 1201, to exercise convert such Warrant Security only into the kind and amount of securities, cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record ownerreceivable, at the time of if any, upon such consolidation, merger, sale sale, or disposition, transfer by a holder of that the number of shares of Common Stock issuable upon exercise of this Warrant in full into which such Security might have been converted immediately prior to the consummation of such consolidation, merger, sale, or transfer, assuming such holder of Common Stock (i) is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or disposition. If transfer was made, as the holders case may be (a "Constituent Person"), or an Affiliate of the Common Stock may elect from choices a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind and/or or amount of securities, cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale sale, or dispositiontransfer (provided that if the kind or amount of securities, thencash, and other property receivable upon such consolidation, merger, sale, or transfer is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, sale, or transfer by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section 3(d), the kind and amount of securities, cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holderconsolidation, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stockmerger, sale, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice transfer by each non-electing share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretonon-electing shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section shall similarly apply to successive consolidations, mergers mergers, sales, or asset acquisitionstransfers. Section 1212 Company to Cause Registration of Common Stock. The Company covenants that if any shares of Common Stock required to be reserved for purposes of conversion of Securities hereunder require registration with, or approval of, any governmental authority under any Federal or State law, or listing upon any national securities exchange, before such shares may be issued upon conversion, the Company will in good faith and as expeditiously as possible endeavor to cause such shares to be duly registered, approved or listed, as the case may be.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security of a series then Outstanding that is convertible or exchangeable into Common Stock of the Company shall have the right thereafterthereafter (which right shall be the exclusive conversion or exchange right thereafter available to said Holder), during the period such Warrant Security shall remain outstandingbe convertible or exchangeable, to exercise convert or exchange such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted or exchanged immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a “Constituent Person”), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised (“Non-electing Share”), then for the purpose of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article or in accordance with the terms of the supplemental indenture or Board Resolutions setting forth the terms of such adjustments. The foregoing above provisions of this Section 1409 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security of a series that is convertible or exchangeable into Common Stock of the Company as provided in Section 106 promptly upon such execution. Neither the Trustee nor any conversion or exchange agent, if any, shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities of a series convertible or exchangeable into Common Stock of the Company upon the conversion or exchange of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security of a series then Outstanding that is convertible or exchangeable into Common Stock of the Company shall have the right thereafterthereafter (which right shall be the exclusive conversion or exchange right thereafter available to said Holder), during the period such Warrant Security shall remain outstandingbe convertible or exchangeable, to exercise convert or exchange such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted or exchanged immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a "Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), 1409 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon- electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article or in accordance with the terms of the supplemental indenture or Board Resolutions setting forth the terms of such adjustments. The foregoing above provisions of this Section 1409 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security of a series that is convertible or exchangeable into Common Stock of the Company as provided in Section 106 promptly upon such execution. Neither the Trustee nor any conversion or exchange agent, if any, shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities of a series convertible or exchangeable into Common Stock of the Company upon the conversion or exchange of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Warrant Security shall remain outstandingbe convertible as specified in Section 11.1, to exercise convert such Warrant Security only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), 11.11 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 11.11 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 1.6 promptly upon such execution. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) any consolidation or merger of the Company with or into any other person in which those holding more than 50% of the voting power of the Company prior to the consolidation or merger no longer hold more than 50% of the voting power of the surviving entity, or (ii) the sale or other disposition of all or substantially all of the Company's ’s assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is formed by or survives such consolidation or merger or acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, a new new, Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) providing that the Holder shall have the right thereafter, during the period such Warrant shall remain outstanding, to exercise such Warrant into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness and other property receivable upon such consolidation, merger, sale or disposition, then, for purposes of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness and other property receivable by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's ’s choice shall be deemed to be whatever choice is made by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties thereto. Such new Warrant shall provide for adjustments that, for events subsequent to the effective date of such new Warrant, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3. The foregoing provisions shall similarly apply to successive consolidations, mergers or asset acquisitions.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger which does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, sale, transfer or (ii) the sale or other disposition lease of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each 4.50% Debenture then Outstanding shall have the right thereafter, during the period such Warrant 4.50% Debenture shall remain outstandingbe convertible as specified in Section 1401, to exercise convert such Warrant 4.50% Debenture only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, sale conveyance, sale, transfer or dispositionlease by a holder of the number of shares of Common Stock of the Company into which such 4.50% Debenture might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments thatwhich, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company, or the Company shall cause the Trustee to give such notice, to the Holder of each 4.50% Debenture as provided in Section 106 promptly upon such execution. Neither the Trustee, any Paying Agent nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of 4.50% Debentures upon the conversion of their 4.50% Debentures after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.

Merger or Sale of Assets. In the event that the Company shall effect (i) case of any consolidation or merger of the Company with or into any other person Person, any merger of another Person with or into the Company (other than a merger that does not result in which those holding more than 50% any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the voting power of the Company prior to the consolidation Company) or merger no longer hold more than 50% of the voting power of the surviving entityany conveyance, or (ii) the sale or other disposition transfer of all or substantially all of the assets of the Company's assets to any other person, in such a way that the holders of Common Stock shall be entitled to receive cash, securities, evidences of indebtedness or other property with respect to or in exchange for their shares of Common Stock, then, in each such event and as a condition precedent to the consummation thereof, the Company or such other person as is Person formed by or survives such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Holder, without payment of any additional consideration therefor, Trustee a new Warrant (in form and substance approved by the Holder, which approval shall not be unreasonably withheld or delayed) supplemental indenture providing that the Holder of each Debenture then outstanding shall have the right thereafter, during the period such Warrant Debenture shall remain outstandingbe convertible as specified in Section 8.01, to exercise convert such Warrant Debenture only into the kind and amount of cash, securities, evidences of indebtedness and other property as the Holder would have received had the Holder been the record owner, at the time of such consolidation, merger, sale or disposition, of that number of shares of Common Stock issuable upon exercise of this Warrant in full immediately prior to the consummation of such consolidation, merger, sale or disposition. If the holders of the Common Stock may elect from choices the kind and/or amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale or dispositiontransfer by a holder of the number of shares of Common Stock of the Company into which such Debenture might have been converted immediately prior to such consolidation, thenmerger, conveyance, sale or transfer assuming such holder of Common Stock of the Company (i) is not (A) a Person with which the Company consolidated or merged with or into or which merged into or with the Company or to which such conveyance, sale or transfer was made, as the case may be (a "Constituent Person"), or (B) an Affiliate of a Constituent Person and (ii) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale or transfer (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale or transfer is not the same for purposes each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale or transfer by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 3(d), 8.08 the kind and amount of cash, securities, evidences of indebtedness cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the Holder upon exercise of such new Warrant shall be specified by the Holder, which specification shall be made by the Holder by the later of (I) ten (10) business days after the Holder is provided with a final version of all material information concerning such choice as is provided to the holders of Common Stock, or (II) the last time at which the holders of Common Stock are permitted to make their specifications known to the Company; provided, however, that if the Holder fails to make any specification within such time period, the Holder's choice each Non-electing Share shall be deemed to be whatever choice is made the kind and amount so receivable per share by a plurality of the holders of Common Stock not affiliated with the Company or, in the case of a consolidation, merger, sale or disposition, the other parties theretoNon-electing Shares). Such new Warrant supplemental indenture shall provide for adjustments that, for events subsequent to the effective date of such new Warrantsupplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3Article. The foregoing above provisions of this Section 8.08 shall similarly apply to successive consolidations, mergers mergers, conveyances, sales, transfers or asset acquisitionsleases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Debenture as provided in Section 13.02 promptly upon such execution. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Debentures upon the conversion of their Debentures after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request.