definiens: shall mean ( a ) in the case of a Change of Control transaction structured as an acquisition of securities of the Company or a merger of the Company, the total amount of cash consideration and the fair market value of all other consideration paid or payable to the Company 's security holders by the purchaser in a Change in Control transaction ( including, without limitation, amounts paid or payable in respect of preferred stock, common stock, convertible securities ( including convertible bonds, convertible debentures or other convertible debt ), warrants, options or similar rights but excluding any amounts paid in respect of the Company 's liabilities ( Company liabilities shall include, without limitation, accounts payable and non - convertible debt but not include convertible debt as aforementioned », or ( b ) in the case of a Change of Control structured as an acquisition of all or substantially all of the assets of the Company, the total amount of cash consideration and the fair market value of all other consideration paid or payable to the Company after deducting any amounts paid in respect of the Company 's liabilities ( including, without limitation, accounts payable and non - convertible debt but exclusive of convertible debt as aforementioned ), in the case of both ( a ) and ( b ) after deducting the Company 's transaction fees, including, without limitation, investment banking fees or commissions ) . In the case of a Change of Control structured as an acquisition of securities of the Company or a merger of the Company, ( x ) the fair market value of any outstanding securities of the Company not acquired by the purchaser in the Change in Control transaction also shall be included in the Transaction Value as if they were acquired in the Change in Control transaction, and ( y ) the fair market value of any outstanding securities of the Company previously acquired by the purchaser and held by the purchaser as of the closing of the Change in Control transaction also shall be included in the Transaction Value as if they were acquired in the Change in Control transaction . In the case of a Change in Control transaction structured as an acquisition of all or substantially all of the assets of the Company, the fair market value of any assets of the Company not acquired in the transaction also shall be included in the Transaction Value as if they were acquired in the Change in Control transaction . The fair market value of all consideration paid or payable at the closing shall be determined as of the closing and the fair market value of all consideration which is contingent upon the occurrence of some future event ( the ) shall be determined as of the date that such consideration is paid by the purchaser, and any 5 [ * * * * * ] CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION