Common use of Substantially Same Terms Clause in Contracts

Substantially Same Terms. The Investors agree that the provisions of this Agreement shall not cause the Merger to not be on substantially the same terms as set forth in the Draft Merger Agreement (including, without limitation, on terms no less favorable to the Investors than the terms set forth in Exhibit B to the Draft Merger Agreement). The parties agree that, unless waived in writing by each of the Investors, the Merger will not be deemed to be on substantially the same terms as set forth in the Draft Merger Agreement if the Triggering Event (as defined in the Series D Certificate of Designations) set forth in Section 3(b)(v) or 3(b)(vi) of the Series D Certificate of Designations shall be deemed to have occurred.