Common use of Merger Event Clause in Contracts

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

Merger Event. If at any time there shall be Merger Event, thenthis Warrant shall, as a on and after the closing thereof, automatically and without further action on the part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock any party or other person, represent the right to receive the consideration (including, without limitation, cash, securities or other property (collectively, “Reference Property”)) payable on or in respect of all shares of Preferred Stock that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement are issuable hereunder as of immediately prior to the closing of such Merger EventEvent less the Purchase Price for all such shares of Preferred Stock, and such Merger Event consideration shall be paid to Warrantholder as and when it is paid to the holders of the outstanding shares of Preferred Stock and this Warrant shall thereupon automatically terminate. In any such case, appropriate Appropriate adjustment (as determined in good faith by the Company’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price Price, the ability of the Warrantholder to elect the class and series of Preferred Stock as set forth in the definition thereof, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting To the foregoing, in connection with extent this Warrant or any Merger Event, upon the closing thereofportion thereof is deemed automatically exercised pursuant to this Section 8(a), the successor or surviving entity shall assume Company agrees to promptly notify the obligations Warrantholder of the Reference Property, if any, the Warrantholder is to receive by reason of such automatic exercise. Notwithstanding anything to the contrary in this Warrant, if the aggregate fair market value of the Reference Property payable under this Section 8(a) is less than the aggregate Exercise Price of this Agreement; provided that the foregoing assumption requirement Warrant, then this Warrant shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of automatically terminate immediately prior to the closing of such Merger Event. In connection with a Merger Event without and upon Warrantholder’s written election Reference Property or other consideration being paid to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger EventsWarrantholder.

Merger Event. If at any time there shall be In connection with a Merger EventEvent that is a Liquid Sale, thenthis Warrant shall, as a on and after the closing thereof, automatically and without further action on the part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock any party or other securities person, represent the right to receive the consideration payable on or property (collectively, “Reference Property”) in respect of all Common Shares that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement are issuable hereunder as of immediately prior to the Merger Event. In any closing of such caseLiquid Sale less the Purchase Price for all such Common Shares (such consideration to include both the consideration payable at the closing of such Liquid Sale and all deferred consideration payable thereafter, appropriate adjustment if any, including, but not limited to, payments of amounts deposited at such closing into escrow and payments in the nature of earn-outs, milestone payments or other performance-based payments (as determined in good faith by the Company’s Board of Directors) “Deferred Payments”)), and such Liquid Sale consideration shall be made in paid to Warrantholder as and when it is paid to the application holders of the provisions of this Agreement with respect to outstanding Common Shares. To the rights and interests of the Warrantholder after the Merger Event to the end extent that the provisions of maximum aggregate consideration per outstanding Common Share (including, without limitation, all Deferred Payments) in such Liquid Sale (assuming for such determination that all Common Shares for which this Agreement (including adjustments of the Exercise Price Warrant is then exercisable are issued and adjustments outstanding) that could, without discount to ensure that the provisions of this Section 8 shall thereafter be applicablepresent value, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for for, on or in respect of the each such outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing Share in accordance with the definitive executed transaction documents) documents therefor is equal to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times Exhibit 2.2 less than the Exercise Price in effect as of immediately prior to the initial closing thereof, then this Warrant shall, effective on and as of such Merger Eventinitial closing, terminate and be of no further force or effect. In connection with a Merger Event and upon Warrantholder’s written election to the Companythat is not a Liquid Sale, the Company shall cause the successor or surviving entity to assume this Warrant Agreement to and the obligations of the Company hereunder on the closing thereof, and thereafter this Warrant shall be exchanged exercisable for the consideration that same number and type of securities or other property as the Warrantholder would have received if Warrantholder in consideration for the Common Shares issuable hereunder had chosen it exercised this Warrant in full as of immediately prior to exercise its right such closing, at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to have shares issued pursuant such closing, and subject to further adjustment from time to time in accordance with the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such considerationWarrant. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

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

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock preferred stock or other securities or property (collectively, “Reference Property”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Common Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities and in connection with any such Merger Event in which consideration consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) Warrant will be deemed to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of immediately prior to exercised contingent upon the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares shares, and exchanging such shares for such consideration. The provisions If the successor or surviving entity in a Merger Event shall refuse to assume the obligations of the Company pursuant to this Section 8(aAgreement, the Company shall give the Warrantholder written notice of at least five (5) business days prior to the closing of the Merger Event of such fact and the Warrantholder shall similarly apply have the option to successive put this Warrant to the Company for a per share amount equal to the difference between the fair market value of the Merger EventsEvent consideration (as reasonably determined by the Company’s board) payable for one share of Preferred Stock and the Exercise Price.

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

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

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this AgreementWarrant, the number of shares of Common Stock or other securities or property (collectively, “Reference Property”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement Warrant immediately prior to the Merger Event. In any such case, if the term of this Warrant has not expired pursuant to Section 2 hereof, appropriate adjustment (as determined in good faith by the Company’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement Warrant with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement Warrant (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement Warrant in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this AgreementWarrant; provided that if the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding Reference Property includes shares of Common Stock stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event consists solely Event, then such other entity shall assume the obligations under this Warrant and any such assumption shall contain such additional provisions to protect the interests of cash and/or readily marketable securities, and (ii) the value Warrantholder as reasonably necessary by reason of such consideration the foregoing (as determined at closing in accordance with good faith by the definitive executed transaction documents) to be paid for or in respect Company’s Board of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of immediately prior Directors and reasonably acceptable to the closing of such Merger EventWarrantholder). In connection with a Merger Event and upon Warrantholder’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

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

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

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock preferred stock or other securities or property (collectively, “Reference Property”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and the number and nature of the security issuable on exercise hereof, and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided provided, that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Common Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder’s written election to the Company, delivered not later than the later to occur of (i) five (5) days prior to the anticipated closing date thereof set forth in the Company’s written notice to the Warrantholder of such Merger Event pursuant to Section 8(g) below , or (ii) ten (10) days after the Warrantholder’s actual receipt of such Company notice, shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

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

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

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock preferred stock or other securities or property (collectively, “Reference Property”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that if the Reference Property includes shares of stock or other securities and assets of an entity other than the successor or purchasing company, as the case may be, in such Merger Event, then such other entity shall assume the obligations under this Agreement and any such assumption shall contain such additional provisions to protect the interests of the Warrantholder as reasonably necessary by reason of the foregoing (as determined in good faith by the Company’s Board of Directors); provided, further, that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Common Preferred Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Preferred Stock is at least three two (32) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event and upon Warrantholder’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock or other securities or property (collectively, “Reference Property”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, if the term of this Warrant has not expired pursuant to Section 2 hereof, appropriate adjustment (as determined in good faith by the Company’s Board of DirectorsDirectors and reasonably acceptable to the Warrantholder) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of immediately prior to the closing of such a Qualified Merger Event. In connection with a Merger Event and upon Warrantholder’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock or other securities or property (collectively, “Reference Property”) that of the Warrantholder would have received in connection with surviving or successor entity resulting from such Merger Event that would have been issuable if Warrantholder had exercised this Agreement in full immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that number of shares of the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rightsClass purchasable) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, (i) this Warrant shall terminate upon the closing of a Liquid Sale to the extent not previously exercised, and (ii) in connection with any a Merger EventEvent that is not a Liquid Sale, upon the closing thereof, Company shall cause the successor or surviving entity shall to assume this Warrant and the obligations of the Company hereunder on the closing thereof, and thereafter this Agreement; provided that Warrant shall be exercisable for the foregoing assumption requirement shall not apply if (i) same number and type of securities or other property as the Warrantholder would have received in consideration to be paid for or in respect the shares of the outstanding shares Class issuable hereunder had it exercised this Warrant in full as of Common Stock in immediately prior to such Merger Event consists solely of cash and/or readily marketable securitiesclosing, and (ii) at an aggregate Exercise Price no greater than the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the aggregate Exercise Price in effect as of immediately prior to such closing, and subject to further adjustment from time to time in accordance with the closing provisions of such Merger Eventthis Warrant. In connection with a Merger Event and upon Warrantholder’s written election to the Company, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

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

Merger Event. If at any time there shall be In connection with a Merger EventEvent that is a Liquid Sale, thenthis Warrant shall, as a on and after the closing thereof, automatically and without further action on the part of such Merger Eventany party or other person, lawful provision shall be made so that represent the Warrantholder shall thereafter be entitled right to receive, upon exercise receive the consideration payable on or in respect of this Agreement, the number of all shares of Common Stock or other securities or property (collectively, “Reference Property”) that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect are issuable hereunder as of immediately prior to the closing of such Merger Event less the Purchase Price for all such shares of Common Stock (such consideration to include both the consideration payable at the closing of such Merger Event and all deferred consideration payable thereafter, if any, including, but not limited to, payments of amounts deposited at such closing into escrow and payments in the nature of earn-outs, milestone payments or other performance-based payments, subject to the terms of the definitive agreements governing the Merger Event), and such Merger Event consideration shall be paid to Warrantholder as and when it is paid to the holders of the outstanding shares of Common Stock. In connection with a Merger Event and upon Warrantholder’s written election to the Companythat is not a Liquid Sale, the Company shall cause the successor or surviving entity to assume this Warrant Agreement to and the obligations of the Company hereunder on the closing thereof, and, thereafter this Warrant shall be exchanged exercisable for the consideration that same number and type of securities or other property as the Warrantholder would have received if Warrantholder in consideration for the shares of Common Stock issuable hereunder had chosen it exercised this Warrant in full as of immediately prior to exercise its right such closing, at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to have shares issued pursuant such closing, and subject to further adjustment from time to time in accordance with the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such considerationWarrant. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time there shall be a reorganization, recapitalization, reclassification, consolidation or merger involving the Company in which the Common Stock is converted into or exchanged for securities, cash or other property or a Merger EventEvent (collectively, a “Reorganization”), then, as a part of such Merger EventReorganization, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number kind and amount of shares of Common Stock securities, cash or other securities or property (collectively, “Reference Property”) resulting from such Reorganization that the Warrantholder would have received in connection with such Merger Event been issuable if Warrantholder had exercised this Agreement immediately prior to the Merger EventReorganization. In any such case, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Agreement with respect to the rights and interests of the Warrantholder after the Merger Event Reorganization to the end that the provisions of this Agreement (including adjustments of the Exercise Price and adjustments to ensure that the provisions number of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise shares of such purchase rightsCommon Stock purchasable) shall continue to be applicable in their entirety, entirety and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger EventReorganization, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for or in respect of the outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing in accordance with the definitive executed transaction documents) to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of immediately prior to the closing of such Merger Event. In connection with a Merger Event Reorganization and upon Warrantholder’s written election to the CompanyCompany at least ten (10) days prior to the effectiveness of such Reorganization, the Company shall cause this Warrant Agreement to be exchanged for the consideration that Warrantholder would have received if Warrantholder had chosen chose to exercise its right to have shares issued pursuant to the Net Issuance provisions of this Warrant Agreement Agreement, without actually exercising such right, acquiring such shares shares, and exchanging such shares for such consideration. The In any such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions set forth herein with respect to the rights and interests thereafter of the Warrantholder, to the end that the provisions set forth in this Section 8 (including without limitation provisions with respect to changes in and other adjustments of the Exercise Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities, cash or other property thereafter deliverable upon the exercise of this Section 8(a) shall similarly apply to successive Merger EventsWarrant.

Merger Event. If at any time there shall be In connection with a Merger EventEvent that is a Liquid Sale, thenthis Warrant shall, as a on and after the closing thereof, automatically and without further action on the part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this Agreement, the number of shares of Common Stock any party or other securities person, represent the right to receive the consideration payable on or property (collectively, “Reference Property”) in respect of all Common Shares that the Warrantholder would have received in connection with such Merger Event if Warrantholder had exercised this Agreement are issuable hereunder as of immediately prior to the Merger Event. In any closing of such caseLiquid Sale less the Purchase Price for all such Common Shares (such consideration to include both the consideration payable at the closing of such Liquid Sale and all deferred consideration payable thereafter, appropriate adjustment if any, including, but not limited to, payments of amounts deposited at such closing into escrow and payments in the nature of earn-outs, milestone payments or other performance-based payments (as determined in good faith by the Company’s Board of Directors) “Deferred Payments”)), and such Liquid Sale consideration shall be made in paid to Warrantholder as and when it is paid to the application holders of the provisions of this Agreement with respect to outstanding Common Shares. To the rights and interests of the Warrantholder after the Merger Event to the end extent that the provisions of maximum aggregate consideration per outstanding Common Share (including, without limitation, all Deferred Payments) in such Liquid Sale (assuming for such determination that all Common Shares for which this Agreement (including adjustments of the Exercise Price Warrant is then exercisable are issued and adjustments outstanding) that could, without discount to ensure that the provisions of this Section 8 shall thereafter be applicablepresent value, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise of such purchase rights) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the successor or surviving entity shall assume the obligations of this Agreement; provided that the foregoing assumption requirement shall not apply if (i) the consideration to be paid for for, on or in respect of the each such outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at closing Share in accordance with the definitive executed transaction documents) documents therefor is equal to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times less than the Exercise Price in effect as of immediately prior to the initial closing thereof, then this Warrant shall, effective on and as of such Merger Eventinitial closing, terminate and be of no further force or effect. In connection with a Merger Event and upon Warrantholder’s written election to the Companythat is not a Liquid Sale, the Company shall cause the successor or surviving entity to assume this Warrant Agreement to and the obligations of the Company hereunder on the closing thereof, and thereafter this Warrant shall be exchanged exercisable for the consideration that same number and type of securities or other property as the Warrantholder would have received if Warrantholder in consideration for the Common Shares issuable hereunder had chosen it exercised this Warrant in full as of immediately prior to exercise its right such closing, at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to have shares issued pursuant such closing, and subject to further adjustment from time to time in accordance with the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such considerationWarrant. The provisions of this Section 8(a) shall similarly apply to successive Merger Events.

Merger Event. If at any time prior to the exercise of this Warrant there shall be Merger Event, then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of this AgreementWarrant, the number of shares of Common Stock stock or other securities or property (collectively, “Reference Property”) that of the Warrantholder would have received in connection with successor corporation resulting from such Merger Event that would have been issuable if Warrantholder had exercised this Agreement Warrant immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company’s Board of Directors) shall be made in the application of the provisions of this Agreement Warrant with respect to the rights and interests of the Warrantholder after the Merger Event to the end that the provisions of this Agreement Warrant (including adjustments of the Exercise Price and adjustments to ensure that the provisions number of this Section 8 shall thereafter be applicable, as nearly as possible, to the purchase rights under this Agreement in relation to any Reference Property thereafter acquirable upon exercise shares of such purchase rightsstock purchasable) shall continue to be applicable in their entirety, and to the greatest extent possible. Without limiting the foregoing, in connection with any Merger Event, upon the closing thereof, the Company will use reasonable efforts (as determined by the Company in its sole discretion) to cause the successor or surviving entity shall to assume the obligations of this Agreement; provided that Warrant. If the foregoing assumption requirement obligations of this Warrant are not assumed in connection with the Merger Event, the Company shall not apply if give Warrantholder written notice at least five (i5) days prior to the consideration to be paid for or in respect closing of the outstanding shares of Common Stock in such Merger Event consists solely of cash and/or readily marketable securities, and (ii) the value of such consideration (as determined at fact. In such event, notwithstanding any other provision of this Agreement to the contrary, Warrantholder may immediately exercise this Warrant in the manner specified in this Agreement with such exercise effective immediately prior to closing in accordance with of the definitive executed transaction documents) Merger Event. If Warrantholder elects not to be paid for or in respect of each outstanding share of Common Stock is at least three (3) times the Exercise Price in effect as of exercise this Warrant, then this Warrant will terminate immediately prior to the closing of such the Merger Event. In connection with If a Merger Event occurs at any time before the shares of Common Stock subject to this Warrant are listed for trading on the American Stock Exchange and upon Warrantholder’s written election the successor or surviving entity does not agree to assume the obligations of this Warrant, then the Warrantholder shall receive liquidated damages in an amount equal to the Company, difference between the Company shall cause this Exercise Price of the Warrant Agreement to be exchanged for as then in effect and the consideration that Warrantholder would have received if Warrantholder had chosen per share payable to exercise its right to have shares issued the holders of the Common Stock in the transaction pursuant to which the Net Issuance provisions of this Warrant Agreement without actually exercising such right, acquiring such shares and exchanging such shares for such consideration. The provisions of this Section 8(a) shall similarly apply to successive Merger EventsEvent occurs.

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