Common use of Dissenting Shares Clause in Contracts

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock that are issued and outstanding immediately prior to the First Effective Time and that are held by any holder a stockholder who is entitled to demand demand, and properly demands demands, appraisal of such Dissenting Shares shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (such stockholders, the “Section 262Dissenting Stockholders” and, such shares of Company Common Stock, the “Dissenting Shares”) ), shall not be converted into or be exchangeable for the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At 262 of the DGCL (and, at the First Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding 262 of the foregoingDGCL), if any unless and until such holder shall fail have failed to perfect or otherwise shall waivehave effectively waived, withdraw withdrawn or lose lost rights to appraisal under the DGCL. If any Dissenting Stockholders shall have failed to perfect or shall have effectively waived, withdrawn or lost such rights, the Dissenting Shares held by such Dissenting Stockholder shall thereupon be deemed to have been converted into, as of the First Effective Time, and shall thereafter represent only the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have becomereceive, the right to receive the Mixed Merger Consideration as provided in Section 2.1(a)(i2.03(a) (and cash in lieu of this Agreementany fractional Parent ADSs and any dividends and distributions with respect thereto as contemplated by Section 2.05(f) and Section 2.09), without interest, and immediately following such cancellation shall be automatically cancelled and cease to exist. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any written demands for appraisal of any shares of Company Common Stock and any Stock, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to stockholders’ rights of appraisal in accordance with the provisions of Section 262 of the DGCL, and Parent shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to all such demands. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or offer or agree to settle, settle any such demands, or agree to do any . Any portion of the foregoingMerger Consideration made available to the Exchange Agent pursuant to Section 2.05 to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to Parent (or to Bidco if Parent so directs) on demand.

Dissenting Shares. Notwithstanding anything to the contrary contained in this Agreement to the contraryAgreement, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) shall not be converted into the right not be entitled to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement2.04(a), but instead such holder shall be entitled to payment of at the fair value of such Dissenting Shares in accordance with First Effective Time the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder holders of Dissenting Shares shall cease to have any rights with respect thereto, except the right be entitled to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262238 of the CICL and such Dissenting Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal dissent under Section 262, or a court 238 of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262CICL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 238 of the CICL shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the First Effective Time into, and shall have become, the right to receive the Mixed Merger Consideration as provided in Section 2.1(a)(i) of this Agreement2.04(a), without interest or any other payments. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any notices of objection, notices of dissent or demands for appraisal fair value under Section 238 of the CICL of any shares of Company Common Stock and any the Shares, attempted withdrawals of such demandsnotices or demands and any other instruments served pursuant to the CICL and received by the Company, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such notices and demands. Prior to the Effective Time, the The Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), voluntarily or as otherwise required under the CICL, make any payment with respect to, or settle or offer to settle, any such notices or demands, or agree to do or commit to do any of the foregoing. In the event that any written notices of objection to the First Merger are served by any Company Shareholder pursuant to Section 238(2) and in accordance with Section 238(3) of the CICL, the Company shall serve written notice of the authorization of the First Merger on such Company Shareholders pursuant to Section 238(4) of the CICL within twenty (20) days of the approval of this Agreement, the Mergers and the other transactions contemplated hereby by the Company Required Vote.

Dissenting Shares. Notwithstanding anything in this Agreement Section 3.1(a) hereof, to the contraryextent that holders thereof are entitled to appraisal rights under Section 262 of the DGCL, shares (“Dissenting Shares”) of Company Common Stock Shares issued and outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to has properly exercised and perfected such holder’s demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of rights under Section 262 of the DGCL (the “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead the holders of such holder Dissenting Shares shall be entitled to payment receive such consideration as shall be determined pursuant to Section 262 of the fair value DGCL; provided, however, that if any such holder shall have failed to perfect or shall have effectively withdrawn or lost such holder’s right to appraisal and payment under the DGCL, such holder’s Shares shall thereupon be deemed to have been converted as of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except Time into the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoingMerger Consideration, if without any such holder shall fail to perfect or otherwise shall waiveinterest thereon, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall not be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementDissenting Shares. The Company shall serve prompt written promptly provide Parent with notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demandsShares, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing. Any payments required to be made with respect to the Dissenting Shares shall be made by Parent and the aggregate Merger Consideration shall be reduced, on a dollar-for-dollar basis, as if the holder of such Dissenting Shares had not been a stockholder of the Company immediately prior to the Effective Time.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Parties Common Stock issued and outstanding immediately prior to the Effective Time that are held and owned by any a holder who is entitled to demand and has properly demands demanded appraisal of such Dissenting Shares pursuant toshares in accordance with, and who complies in all respects with, the provisions of (i) with respect to VSee, Section 262 of the DGCL (the “VSee Dissenting Shares”), and (ii) with respect to iDoc, Section 26221.460 of the TBOC, (the “iDoc Dissenting Shares” and together with the VSee Dissenting Shares, the “Dissenting Shares”) shall not be converted into the right to receive Parent Common Stock, and shall instead represent the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL or Subchapter H, Chapter 10 of the TBOC, as applicable. At the Effective Time, (a) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (b) the holders of Dissenting Shares shall cease be entitled only to have any such rights with respect theretoas may be granted to them under the DGCL or the TBOC, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262as applicable. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such holder’s right to appraisal under Section 262262 of the DGCL, Subchapter H, Chapter 10 of the TBOC, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, and shall have become, into the right to receive Parent Common Stock upon the Mixed Consideration as provided terms and conditions set forth in Section 2.1(a)(i) of this AgreementAgreement applicable to holders that have not properly demanded appraisal rights. The A Company Party shall serve give Parent prompt written notice (but and in any event within 48 hoursthree (3) to Parent Business Days) of any demands received by such Company Party for appraisal of any shares of Company Parties Common Stock and any Stock, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL or the TBOC, as applicable, and received by such Company Party relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and and, following the Effective Time, direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the a Company Party shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL, Subchapter H, Chapter 10 of the TBOC, or agree or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement Section 2.1(b), to the contraryextent that holders thereof are entitled to appraisal rights under Section 262 of the DGCL, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to has properly exercised and perfected his or her demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of rights under Section 262 of the DGCL (the “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead the holders of such holder Dissenting Shares shall be entitled to payment receive such consideration as shall be determined pursuant to Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective TimeDGCL; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, that if any such holder shall fail have failed to perfect or otherwise shall waivehave effectively waived, withdraw withdrawn or lose the lost his or her right to appraisal and payment under Section 262the DGCL (including through entry into an Acceptable Confidentiality Agreement), or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shares of Company Common Stock shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Merger Consideration, without any interest thereon, and such shares shall not be deemed to be Dissenting Shares. Any payments required to be made with respect to the Dissenting Shares shall be made by the Surviving Corporation, and the Total Common Merger Consideration shall be reduced, on a dollar for dollar basis, as provided in if the holder of such Dissenting Shares had not been a stockholder on the date of the Merger Closing. Any portion of the Total Common Merger Consideration made available to the Paying Agent pursuant to Section 2.1(a)(i) of this Agreement2.2 to pay for Dissenting Shares will be returned to Parent upon demand. The Company shall serve give Parent (a) prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal or payment of the fair value of any shares of Company Common Stock and any Stock, attempted withdrawals of such demands, demands and Parent shall have any other instruments served pursuant to applicable Law that are received by the right Company relating to stockholders’ rights of appraisal and (b) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal under Section 262 of the DGCL. Prior to the Effective Time, the Company shall will not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make (or cause or permit to be made on its behalf) any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (the “Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of such Dissenting Shares shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL Delaware Law (“Section 262”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement2.02(a), but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares shares in accordance with the provisions of Section 262. At the Effective Time, all the Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate that immediately prior to the Effective Time represented Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, 262 or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Merger Consideration as provided in Section 2.1(a)(i) of this Agreement2.02(a). The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock Stock, withdrawals of any such demands and any withdrawals of such demandsother instruments served pursuant to Delaware Law received by the Company, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock Shares that are issued and outstanding immediately prior to the Effective Time and that are held by any holder stockholders who is entitled to demand and are properly demands demanding appraisal of such Dissenting Shares rights pursuant to, and who complies are complying in all respects with, the provisions of Section 262 of the DGCL Corporation Law (the “Section 262Dissenting Shares”) shall not be converted into or be exchangeable for the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except converted into the right to receive such consideration as may be determined to be due to the fair value holders of such Dissenting Shares pursuant to Section 262 of the Corporation Law, unless and until such holders shall have failed to perfect or shall have effectively withdrawn or lost their rights to appraisal under Section 262 of the Corporation Law. Dissenting Shares shall be treated in accordance with Section 262 of the provisions of Section 262Corporation Law. Notwithstanding the foregoing, if If any such holder shall fail have failed to perfect or otherwise shall waivehave effectively withdrawn or lost such right to appraisal, withdraw or lose such holder’s Shares shall thereupon be converted into and become exchangeable only for the right to appraisal under Section 262receive, or a court as of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right later of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and the time that such right to appraisal shall have becomebeen irrevocably lost, withdrawn or expired, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementMerger Consideration, without any interest thereon. The Company shall serve give Parent and Merger Sub (a) prompt written notice (but in any event within 48 hours) to Parent of any written demands for appraisal of any shares of Company Common Stock and any Shares (or written threats thereof), withdrawals of such demandsdemands and any other instruments served pursuant to the Corporation Law and received by the Company relating to rights to be paid the “fair value” of Dissenting Shares, and Parent shall have (b) the right to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal under the Corporation Law. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make or agree to make any payment with respect toto any demands for appraisals of capital stock of the Company, offer to settle or settle or offer to settleany such demands, approve any withdrawal of any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrarycontrary (but subject to the provisions of this Section 2.3), shares (“Dissenting Shares”) of Company Common Stock issued and Shares and/or Preferred Shares outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such shares, the “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration or the Series A Preferred Stock Consideration, as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262applicable. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled cancelled and retired and shall cease to exist, and each holder the holders of Dissenting Shares shall cease only be entitled to have any the rights with respect thereto, except granted to them under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses his right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Merger Consideration or the Series A Preferred Stock Consideration, as applicable, without interest and subject to any withholding of Taxes required by applicable Law as provided in Section 2.1(a)(i) of this Agreement2.5. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock Shares or Preferred Shares and any withdrawals other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of such demandsDissenting Shares, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, or settle or offer to settlecompromise, any such demands, demands or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such Shares, the “Section 262Dissenting Shares”) shall not be converted into the right to receive the applicable Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses his right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Consideration as provided applicable Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law in accordance with Section 2.1(a)(i) of this Agreement2.2(e). The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any Shares, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and direct to control all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demands, or approve any withdrawal of any such demands, or agree to do any of the foregoing. Notwithstanding anything to the contrary contained herein, each of Parent, Purchaser and the Company acknowledge and agree that in any appraisal proceeding under Section 262 of the DGCL with respect to Dissenting Shares and to the fullest extent permitted by applicable Law, the Surviving Corporation shall not assert that the Top-Up Option, the Top-Up Option Shares or any cash or Promissory Note delivered by Purchaser to the Company as payment for any Top-Up Option Shares should be considered in connection with the determination of the fair value of the Dissenting Shares in accordance with Section 262(h) of the DGCL.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares if required under the DGCL, but only to the extent required thereby, Shares (“Dissenting Shares”) of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by any holder stockholders (“Dissenting Stockholders”) who is entitled (a) have not voted in favor of or consented in writing to demand and properly demands appraisal of such Dissenting Shares pursuant tothe Merger, and who complies (b) in all respects with, the provisions of manner provided in Section 262 of the DGCL DGCL, shall have delivered a written demand for appraisal for such Shares, if the Merger is effectuated, in the time and manner provided in the DGCL, and (“Section 262”c) shall not have failed to perfect or shall not have effectively withdrawn or lost their rights to appraisal under the DGCL, shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementPrice, but instead such holder shall shall, in lieu thereof, be entitled to payment receive the consideration as shall be determined pursuant to Section 262 of the fair value of DGCL; provided, however, that any such Dissenting holder who shall have failed to perfect or shall have effectively withdrawn or lost his, her, or its right to appraisal and payment under the DGCL, if any, shall thereupon be deemed to have had such person’s Shares converted, at the Effective Time, into the right to receive the Merger Price in accordance with the provisions of Section 262. At 2.07, without any interest or dividends thereon, upon surrender of Share Certificates representing the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262Shares. Notwithstanding anything to the foregoingcontrary contained in this Section 2.12, if any such holder shall fail (i) the Merger is rescinded or abandoned or (ii) the stockholders of the Company revoke the authority to perfect or otherwise shall waive, withdraw or lose effect the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262Merger, then the right of such holder any Dissenting Stockholder to be paid the fair value of such holderDissenting Stockholder’s Dissenting Shares under pursuant to Section 262 of the DGCL shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) 10 262 of this Agreementthe DGCL. The Company shall serve give Parent prompt notice of any demands, withdrawals, or other notices received by the Company for or with respect to appraisals of Shares. The Company shall not, except with the prior written notice (but in consent of the Parent, make any event within 48 hours) payment with respect to Parent of any demands for appraisal of or offer to settle or settle any shares of Company Common Stock such demands and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company thereto shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoingdirected by Parent.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrarycontrary (but subject to the provisions of this Section 2.3), shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are (other than Company Shares cancelled in accordance with Section 2.1(b)) and held by any a holder who did not vote in favor of the adoption of this Agreement, and who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Company Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such Company Shares, the “Section 262Dissenting Shares”) shall not be converted into the right to receive the Per Share Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262Consideration. At the Effective Time, all Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder the holders of Dissenting Shares shall cease to have any rights with respect thereto, except the right rights granted to receive them under Section 262 of the fair value of such DGCL (the “Dissenting Shares in accordance with the provisions of Section 262Stockholder Consideration”). Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses his right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value Dissenting Stockholder Consideration in respect of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Consideration as provided Per Share Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law in Section 2.1(a)(i) of accordance with this AgreementArticle 2 and shall not thereafter be deemed to be Dissenting Shares. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of Company Shares, any shares waiver or withdrawal of Company Common Stock any such demand, and any withdrawals of other demands, notices or instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the Dissenting Stockholder Consideration for such demandsDissenting Shares, and Parent shall have the opportunity and right to participate in and direct control all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settlecompromise, any such demands, or approve any withdrawal of any such demands, or agree to do any of the foregoing, except to the extent required by applicable Law.

Dissenting Shares. Notwithstanding anything in any other provision of this Agreement to the contrary, to the extent that holders thereof are entitled to appraisal rights under Section 262 of the DGCL or similar appraisal or dissenters’ rights under any other applicable Law, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to has properly exercised and perfected his or her demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of or dissenters’ rights under Section 262 of the DGCL or such other applicable Law (the “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262Consideration. At the Effective Time, all the Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except but the holders of such Dissenting Shares shall be entitled to receive such consideration as shall be determined pursuant to Section 262 of the DGCL or such other applicable Law; provided, however, that if any such holder shall have failed to perfect or shall have effectively withdrawn or lost his or her right to appraisal or dissenters’ rights and payment under the DGCL or such other applicable Law, as applicable (whether occurring before, at or after the Effective Time), such holder’s shares of Company Common Stock shall thereupon be deemed to have been converted as of the Effective Time into the right to receive the fair value Merger Consideration, without any interest thereon, and such shares shall not be deemed to be Dissenting Shares. Any payments required to be made with respect to the Dissenting Shares shall be made by Parent (and not the Company or Acquisition Sub), and the Aggregate Merger Consideration shall be reduced, on a dollar-for-dollar basis, as if the holder of such Dissenting Shares in accordance with had not been a stockholder on the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementClosing Date. The Company shall serve give prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of or dissenters’ rights respecting any shares of Company Common Stock and any Stock, withdrawals of such demands and any other instruments served pursuant to the DGCL or such other applicable Law received by the Company relating to appraisal or dissenters’ demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and or Company Preferred Stock outstanding immediately prior to the Effective Time that are and held by any holder a Company Stockholder who is entitled to demand has not voted in favor of the Merger or consented thereto in writing or by electronic transmissions and has properly demands demanded appraisal of for such Dissenting Shares pursuant toshares in accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such shares, “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Closing Merger Consideration as provided in Section 2.1(a) of this Agreement, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, (i) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (ii) the holders of Dissenting Shares shall cease be entitled to have any only such rights with respect theretoas may be granted to him, except her or it under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail Company Stockholder fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such Company Stockholder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 of the DGCL shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, only represent the right to receive the Mixed Closing Merger Consideration as provided upon the surrender of such shares in Section 2.1(a)(i) of accordance with this AgreementArticle II. The Company shall serve give Parent reasonably prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any or Company Preferred Stock, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which such consent shall not to be unreasonably conditionedwithheld, withheld conditioned or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL, or agree or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such Shares, the “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses his right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementMerger Consideration, without interest. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any Shares, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demands, or approve any withdrawal of any such demands, or agree to do any of the foregoing. The parties hereby agree and acknowledge that in any appraisal proceeding with respect to the Dissenting Shares and to the fullest extent permitted by applicable Law in any appraisal proceeding under Section 262 of the DGCL with respect to Dissenting Shares, the Surviving Company shall not assert that the exercise of the Top-Up Option, any issuance of the Top-Up Option Shares or any delivery by the Purchaser of the Promissory Note to the Company in payment for the Top-Up Option Shares should be considered in connection with a determination of the fair value of the Dissenting Shares in accordance with Section 262(h) of the DGCL.

Dissenting Shares. Notwithstanding anything any other provision contained in this Agreement to the contraryAgreement, shares (“Dissenting Shares”) of Company Common Stock that are issued and outstanding immediately prior to as of the Effective Time and that are held by any holder a shareholder who is entitled has perfected his or her right to demand dissent under the BCA and properly demands appraisal of has not effectively withdrawn or lost such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of Section 262 right as of the DGCL Effective Date (any such shares being referred to herein as “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a2.7(b) and instead shall be entitled to such rights (but only such rights) as are granted by the BCA (unless and until such shareholder shall have failed to perfect, or shall have effectively withdrawn or lost, such shareholder’s right to dissent from the Merger under the BCA) and to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to and subject to the requirements of the BCA. If any such shareholder shall have failed to perfect or shall have effectively withdrawn or lost such right prior to the Election Deadline, each of such holder’s shares of Company Common Stock shall thereupon be deemed to be Non-Election Shares for all purposes of this Agreement, but instead unless such holder shareholder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262thereafter otherwise make a timely Election under this Agreement. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each If any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail so failed to perfect or otherwise shall waive, withdraw has effectively withdrawn or lose the lost such shareholder’s right to appraisal under Section 262dissent from the Merger after the Election Deadline, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value each of such holder’s Dissenting Shares under Section 262 shares of Company Common Stock shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at into and to have become, as of the Effective Time into, and shall have becomeTime, the right to receive the Mixed Stock Consideration or the Cash Consideration, or a combination thereof, as provided determined by Parent in its sole discretion (subject to Section 2.1(a)(i) of this Agreement2.7(g)). The Company shall serve give Parent (i) prompt written notice (but in any event within 48 hours) to Parent of any demands notice or demand for appraisal of any or payment for shares of Company Common Stock received by Company and any withdrawals of such demands, and Parent shall have (ii) the right opportunity to participate in and direct all negotiations and proceedings with respect to any such demandsdemand or notices. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle, offer for settle or offer to settle, otherwise negotiate any such demands, or agree to do any of the foregoing.

Dissenting Shares. (a) Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) with respect to each share of Company Class A Common Stock issued and outstanding immediately prior to the Effective Time that are held by any a holder who is entitled neither voted in favor of adoption of this Agreement or consented thereto in writing with respect to demand such share and for which the holder or Beneficial Owner has properly demands and validly perfected its statutory rights of appraisal in respect of such Dissenting Shares pursuant to, and who complies shares in all respects with, the provisions of accordance with Section 262 of the DGCL and has not effectively withdrawn or lost its rights to appraisal (each such share, a “Section 262Dissenting Share”) ), if any, such Dissenting Shares shall not be converted into the or represent a right to receive any portion of the Public Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead and such holder holders and Beneficial Owner thereof shall be entitled to payment such rights as are granted by Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At DGCL, and at the Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding 262 of the foregoingDGCL; provided, however, that (i) if any such holder shall fail or Beneficial Owner of Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively and effectively withdraws or loses (through failure to perfect or otherwise shall waive, withdraw or lose otherwise) the right to dissent or its right for appraisal under Section 262of such Dissenting Shares, (ii) if any holder or Beneficial Owner of Dissenting Shares fails to establish his, her or its entitlement to appraisal rights as provided in the DGCL or (iii) if a court of competent jurisdiction shall determine that such holder or Beneficial Owner is not entitled to the relief provided by Section 262262 of the DGCL, then such holder(s) or Beneficial Owner(s) (as the case may be) shall forfeit the right to appraisal of such holder to be paid the fair value shares of such holder’s Dissenting Shares under Section 262 shall cease Company Class A Common Stock and such shares of Company Class A Common Stock shall thereupon cease to constitute Dissenting Shares shall Shares, and each such share of Company Class A Common Stock shall, to the fullest extent permitted by Applicable Law, thereafter be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, into and shall to have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall notright to receive, without interest thereon, the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoingPublic Merger Consideration.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and that are outstanding immediately prior to the First Effective Time and that are held by any holder Person who is entitled to demand has not voted in favor of, or consented to, the Mergers and properly demands appraisal of such Dissenting Shares shares of Company Common Stock pursuant to, to Section 262 of the DGCL and who otherwise complies in all respects with, the provisions of with Section 262 of the DGCL (“Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement3.1(b), but instead such holder rather the holders of Dissenting Shares shall be entitled to payment only those rights as are granted by Section 262 of the fair value of such Dissenting Shares in accordance with DGCL (it being understood and acknowledged that at the provisions of Section 262. At the First Effective Time, all such Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired cancelled and shall cease to exist, exist and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except thereto other than the right to receive the “fair value value” of such Dissenting Shares as determined in accordance with Section 262 of the provisions of Section 262. Notwithstanding the foregoingDGCL); provided, however, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court 262 of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the First Effective Time into, and shall have become, become exchangeable solely for the right to receive receive, the Mixed Merger Consideration as provided in Section 2.1(a)(i3.1(b) (without interest and less any amounts entitled to be deducted or withheld pursuant to Section 3.2(f)) upon the surrender of this Agreementthe Certificates or Book-Entry Shares previously representing such Dissenting Shares. The Company shall serve give prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsStock, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demandsdemands (it being understood that, subject to good faith consultation with Parent, the Company has the right to direct and control any such negotiations and proceedings). Prior to the First Effective Time, the Company shall not, without the prior written consent of Parent Parent, (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily i) make any payment with respect to, or settle or offer to settle, any such demands, (ii) waive any failure to timely deliver a written demand for appraisal or timely take any other action to perfect appraisal rights in accordance with the DGCL, or (iii) agree to do any of the foregoing.

Dissenting Shares. (a) Notwithstanding anything in this Agreement to the contrary, shares and to the extent available under the BVI Act, if a holder of Shares properly demands in writing, and does not withdraw or lose its dissenters’ rights for such Shares in accordance with Section 179 of the BVI Act (the “Dissenting Shares”) and otherwise complies with all provisions of Company Common Stock issued the BVI Act relevant to the exercise and outstanding immediately prior to perfection of dissenters’ rights, (i) if such demand occurs before the Effective Time, the Dissenting Shares will automatically convert at the Effective Time that are held by into a right to receive an amount for such Dissenting Shares calculated in accordance with Section 179 of the BVI Act (the “Dissenter Consideration”), and (ii) if such demand occurs at or after the Effective Time, any holder who is entitled right to demand and properly demands appraisal receive the Merger Consideration in respect of such Dissenting Shares pursuant to, will immediately and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) shall not be converted automatically convert into the right to receive the Dissenter Consideration. For the avoidance of doubt, from and after the Effective Time, the Dissenting Shares will automatically be cancelled and will cease to exist or be outstanding and each shareholder who has properly exercised such dissenters’ rights will cease to be a member of the Company (and will not be a member of the Surviving Company) and will not have any rights of a shareholder of the Company or the Surviving Company with respect to the Dissenting Shares (including any right to receive such holder’s portion of the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration), but instead such holder shall be entitled except the right to receive payment of the fair value of such the Dissenting Shares held by such holder as determined in accordance with Section 179 of the provisions of Section 262. At BVI Act, unless, after the Effective Time, all such holder fails to perfect or withdraws or otherwise loses his, her or its right to dissent, in which case the Dissenting Shares shall no longer will be outstanding, shall automatically be canceled converted into and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except represent only the right to receive the fair value Merger Consideration, without interest thereon, upon surrender of such Dissenting Shares the Certificates or Book-Entry Shares, in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing2.2.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held and owned by any holder a Company Stockholder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toshares in accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such shares, “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Per Share Merger Consideration as provided in Section 2.1(a) of this Agreement, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, (i) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (ii) the holders of Dissenting Shares shall cease be entitled to have any only such rights with respect theretoas may be granted to him, except her or it under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail Company Stockholder fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such Company Stockholder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Legal Requirements, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Per Share Merger Consideration as provided in Section 2.1(a)(i) of accordance with this Agreement. Article I. The Company shall serve give BRPA prompt written notice (but and in any event within 48 hourstwo (2) to Parent Business Days) of any demands received by the Company for appraisal of any shares of Company Common Stock and any Stock, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent BRPA shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedBRPA, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL, or agree or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in any provision of this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares that are outstanding immediately prior to the Effective Time and that are held by any holder who is entitled to demand and who demands properly demands in writing appraisal of for such Dissenting Common Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (any such Common Shares being referred to as “Section 262”) Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s appraisal rights under the DGCL with respect to such Common Shares), shall not be converted into into, or represent the right to receive receive, the Merger Consideration as provided consideration payable in respect of such Common Shares in accordance with Section 2.1(a) of this Agreement1.09, but instead such holder of Dissenting Shares shall instead be entitled only to receive payment of the fair appraised value of such Dissenting Common Shares in accordance with the provisions of Section 262262 of the DGCL. At the Effective Time, all the Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair appraised value of such Dissenting Common Shares in accordance with the provisions of Section 262262 of the DGCL. Notwithstanding the foregoing, if all Dissenting Shares held by any such holder who shall fail have failed to perfect or who effectively shall have withdrawn or otherwise shall waive, withdraw or lose the right lost its rights to appraisal of such Dissenting Shares under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine have determined that such holder is not entitled to the relief provided by Section 262262 of the DGCL shall thereupon be deemed to have been automatically converted into, then and to have become exchangeable for, and shall represent only the right to receive the consideration payable in respect of such Common Shares in accordance with Section 1.09, without any interest thereon, upon surrender in the manner provided in Section 1.16 and the right of such holder to be paid payment of the fair appraised value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoingcease.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, any issued and outstanding shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior held by a Person (a “Dissenting Stockholder”) who has not voted in favor of or consented to the Effective Time that are held by any holder who is entitled to demand adoption of this Agreement and has properly demands appraisal of such Dissenting Shares pursuant to, and who complies perfected dissenter’s rights in all respects with, accordance with the provisions of Section 262 of the DGCL (each, a “Section 262Dissenting Share”) ), if any, shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead shall become the right to receive such holder shall consideration as may be entitled determined to payment of the fair value of be due to such Dissenting Shares Stockholder to the extent permitted by, and in accordance with the provisions and pursuant to the procedures of, Section 262 of the DGCL; provided, however, that (i) if any Dissenting Stockholder, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws such holder’s demand for appraisal of such Dissenting Shares, (ii) if any Dissenting Stockholder fails to establish such holder’s entitlement to dissenters’ rights as provided in the DGCL or (iii) if any Dissenting Stockholder takes or fails to take any action the consequence of which is that such holder is not entitled to payment under Section 262262 of the DGCL for such holder’s shares, such holder or holders (as the case may be) shall forfeit the right to appraisal of such shares of Company Common Stock and such shares of Company Common Stock shall thereupon be deemed to have been converted, as of the Effective Time, into and represent the right to receive the Merger Consideration (without interest) payable in respect of such shares of Company Common Stock. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares rights set forth in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease of the DGCL and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreementthe previous sentence. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsStock, and Parent shall have the right to participate in (and direct the Company shall provide Parent the opportunity to participate in) all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall notnot settle, make any payments with respect to, or offer to settle, any claim with respect to Dissenting Shares without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoingParent.

Dissenting Shares. Notwithstanding anything in this Agreement Section 3.1(b) hereof, to the contraryextent that holders thereof are entitled to appraisal rights under Section 262 of Delaware Law, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to has properly exercised and perfected his or her demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of rights under Section 262 of Delaware Law (the DGCL (“Section 262Dissenting Shares”) shall not be converted into the right to receive the applicable Merger Consideration as provided in Section 2.1(a) Consideration, but, instead, the holders of this Agreement, but instead such holder Dissenting Shares shall be entitled to receive such consideration as shall be determined pursuant to Section 262 of Delaware Law; provided, however, that if any such holder shall have failed to perfect or shall have effectively withdrawn or lost his or her right to appraisal and payment under Delaware Law, such holder’s shares of Company Common Stock shall thereupon be deemed to have been converted as of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except Time into the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoingapplicable Merger Consideration, if without any such holder shall fail to perfect or otherwise shall waiveinterest thereon, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shares shall not be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementDissenting Shares. The Company shall serve give Buyer (i) prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal filed pursuant to Section 262 of any shares of Company Common Stock and any Delaware Law received by the Company, withdrawals of such demands, demands and Parent shall have any other instruments served or delivered in connection with such demands pursuant to Delaware Law and received by the right Company and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands made pursuant to Section 262 of Delaware Law. Prior to the Effective Time, the The Company shall notnot (x) make any payment with respect to any such demand, without (y) offer to settle, settle or approve any withdrawal or other treatment of, any such demand or (z) waive any failure to timely deliver a written demand for appraisal or timely take any other action to perfect appraisal rights in accordance with Delaware Law, except in each case with the prior written consent of Parent (Buyer, which consent shall not be unreasonably withheld, delayed or conditioned, withheld ; provided that no such consent shall be required if such actions are required by Delaware Law or delayed), voluntarily make any payment court order. Any payments required to be made with respect toto the Dissenting Shares shall be made by Buyer (and not the Company or Acquisition Sub) and the Merger Consideration shall be reduced, or settle or offer to settleon a dollar for dollar basis, any as if the holder of such demands, or agree to do any of Dissenting Shares had not been a stockholder on the foregoingClosing Date.

Dissenting Shares. Notwithstanding anything to the contrary set forth in this Agreement to the contraryAgreement, no shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands in respect of which appraisal of such Dissenting Shares pursuant to, and who complies rights shall have been perfected in all respects with, the provisions of accordance with Section 262 of the DGCL in connection with the Merger (collectively, “Section 262Dissenting Shares”) shall not be converted into a right to receive that portion of the Merger Consideration otherwise payable to the holder of such Dissenting Shares as provided in Section 2.1(a), but shall instead be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to the DGCL. Each holder of Dissenting Shares who, pursuant to the provisions of the DGCL, becomes entitled to payment of the fair value of such shares shall receive payment therefor in accordance with the DGCL (but only after the value therefor shall have been agreed upon or finally determined pursuant to the DGCL). In the event that any holder of Company Common Stock fails to make an effective demand for payment or fails to perfect its appraisal rights as to its shares of Company Common Stock or any Dissenting Shares shall otherwise lose their status as Dissenting Shares, then any such shares shall be converted into the right to receive the Merger Consideration as provided in issuable pursuant to Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value in respect of such shares as if such shares had never been Dissenting Shares Shares, in accordance with and following the provisions satisfaction of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled applicable requirements and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided conditions set forth in Section 2.1(a)(i) of this Agreement2.2. The Company shall serve give Parent prompt written notice (but and in no event more than two Business Days) of (i) any event within 48 hours) to Parent of any demands demand received by the Company for appraisal of any shares of Company Common Stock (and any withdrawals of such demands, and shall give Parent shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to any such demandsdemand) or (ii) any notice of exercise by any holder of Company Common Stock of appraisal rights in accordance with the DGCL. Prior to the Effective TimeThe Company agrees that, the Company shall not, without the except with Parent’s prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned, withheld or delayed), it shall not voluntarily make any payment or offer to make any payment with respect to, or settle or offer to settle, any such demands, demand for appraisal or agree to do any exercise of the foregoingappraisal rights.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are (other than Shares to be cancelled in accordance with Section 2.1(b)) and held by any a holder who is entitled has perfected such holder’s right to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of dissent under Section 262 13.01 et seq. of the DGCL VBCA and has not effectively withdrawn or lost such right as of the Effective Time (such Shares, “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) ), and shall instead represent the right to receive payment of the consideration due to the holder of Dissenting Shares in accordance with Sections 13.02 and 13.25 of the VBCA. If any such holder fails to perfect or otherwise waives, withdraws or loses such holder’s right to dissent under the VBCA or other applicable Law, then such Dissenting Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for, the right to receive the Merger Consideration as provided in Section 2.1(a), without interest. The Company will submit the transactions contemplated by this Agreement, but instead such holder shall including the Merger, for the Company Shareholder Approval (as set forth in Section 3.22 hereof) pursuant to Section 13.20(a) of the VBCA at the Company Shareholder Meeting, the notice of which will include a copy of Chapter 13 of the VBCA and will state that the shareholders are or may be entitled to assert dissenters’ rights thereunder. In accordance with Section 13.22 of the VBCA, the Company will deliver a written dissenters’ notice to all shareholders who timely submit an intent to demand payment for their shares, and who otherwise comply with Section 13.21 of the VBCA. The Company shall serve prompt notice to Parent of any demands received by the Company for payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease the VBCA and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demandsnotice and any other instruments provided pursuant to applicable Law, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settlecompromise, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares that are outstanding immediately prior to the First Effective Time and that are held by any holder Person who is entitled to demand and properly demands appraisal of dissenters’ rights with respect to such shares (“Dissenting Shares Shares”) pursuant to, and who complies in all respects with, the provisions of Section 262 Sections 471 and 473 of the DGCL MBCA (“Section 262Sections 471 and 473”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement2.05, but instead such holder rather the holders of Dissenting Shares shall be entitled to payment by the Surviving Company of the “fair value value” of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective TimeSections 471 and 473; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right dissenters’ rights pursuant to appraisal under Section 262, (or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262receive fair value pursuant to) Sections 471 and 473, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the First Effective Time into, and shall to have becomebecome exchangeable solely for, the right to receive the Mixed Merger Consideration as provided in Section 2.1(a)(i) of this Agreement2.05. The Company shall serve provide prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal dissenters’ rights with respect to any Company Shares, written notices of any shares of Company Common Stock and any intent to demand, written withdrawals of such demands, demands and any other instruments served pursuant to Sections 471 and 473 received by the Company and any other documents related thereto received from any Person purporting to seek to exercise dissenters’ rights. Parent shall have the right to participate in and direct all negotiations and proceedings Proceedings with respect to such demands. Prior to the First Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing. Prior to the First Effective Time, Parent shall not, except with the prior written consent of the Company, require the Company to make any payment with respect to any demands for appraisal, or offer to settle or settle any such demands if such settlement would involve payment prior to the Closing or would otherwise not be contingent upon the Closing.

Dissenting Shares. Notwithstanding anything to the contrary set forth in this Agreement to the contraryAgreement, no shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time and in respect of which appraisal rights shall have been perfected in accordance with Section 262 of the DGCL in connection with the Merger (collectively, “Dissenting Shares”) shall be converted into a right to receive that are held by portion of the Merger Consideration otherwise payable to the holder of such Dissenting Shares as provided in Section 2.1(a), but shall instead be cancelled and represent the right to receive the “fair value” of such Dissenting Shares as determined pursuant to the DGCL. Each holder of Dissenting Shares who, pursuant to the provisions of the DGCL, becomes and remains entitled to payment of the fair value of such shares shall receive payment therefor in accordance with the DGCL (but only after the value therefor shall have been finally determined pursuant to the DGCL). In the event that any holder who is entitled of Company Common Stock fails to make an effective demand and for, or properly demands withdraws its demand for, appraisal of such Dissenting Shares pursuant toor fails to perfect its appraisal rights as to its shares of Company Common Stock or otherwise lose their status as Dissenting Shares, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) then any such shares shall not be converted into the right to receive the Merger Consideration as provided in issuable pursuant to Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value in respect of such shares as if such shares had never been Dissenting Shares Shares, in accordance with and following the provisions satisfaction of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled applicable requirements and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided conditions set forth in Section 2.1(a)(i) of this Agreement2.2. The Company shall serve give Parent prompt written notice of (but and in any no event within 48 hoursmore than two (2) to Parent Business Days after) (i) receipt of any demands demand by the Company for appraisal of any shares of Company Common Stock (and any withdrawals of such demands, and the Company shall give Parent shall have the right to participate in and direct all negotiations and proceedings with respect to any such demandsdemand) or (ii) any notice of exercise by any holder of Company Common Stock of appraisal rights in accordance with the DGCL. Prior to the Effective TimeThe Company agrees that, the Company shall not, without the except with Parent’s prior written consent of Parent (which consent consent, it shall not be unreasonably conditioned, withheld voluntarily make any payment or delayed), voluntarily offer to make any payment with respect to, or settle or offer to settle, any such demands, demand for appraisal or agree to do any exercise of the foregoingappraisal rights.

Dissenting Shares. (a) Notwithstanding anything to the contrary contained in this Agreement to the contraryAgreement, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal rights under Section 302A.471 of such Dissenting Shares pursuant tothe MBCA, and who complies in all respects with, the provisions of has properly exercised and perfected his or her demand for appraisal rights under Section 262 302A.473 of the DGCL MBCA (the “Section 262Dissenter’s Rights”) ), shall not be converted into the or represent a right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement3.1(b), but instead the holders of such holder Dissenting Shares shall be entitled to the payment of the fair value (including interest determined in accordance with Section 302A.473 of the MBCA) of such Dissenting Shares in accordance with the provisions of Section 262its Dissenter’s Rights. At In such case, at the Effective Time, all the Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except with respect to Dissenter’s Rights and as provided in the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262following sentence. Notwithstanding the foregoing, if any such holder shall fail have failed to perfect or shall have otherwise shall waivewaived, withdraw effectively withdrawn or lose the lost his or her right to appraisal under Section 262, the Dissenter’s Rights or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262the Dissenter’s Rights, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 the Dissenter’s Rights shall cease and such shares shall no longer be considered Dissenting Shares for purposes hereof and such holder’s shares of Company Common Stock shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Consideration Merger Consideration, without any interest thereon, as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed3.1(b), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) except the last sentence of Company this Section 3.03, Target Common Stock Shares that are issued and outstanding immediately prior to the Effective Time that and which are held by any holder shareholders who is entitled shall not have voted such shares in favor of the Merger and who shall have timely filed with Target a written objection to the Merger and timely delivered to Target a written demand and properly demands appraisal for the payment of the fair value of such Target Common Shares (“Dissenting Shares pursuant to, and who complies Shares”) in all respects with, the provisions of Section 262 manner provided in Chapter 92A of the DGCL (“Section 262”) NRS shall not be converted into the right to receive receive, or be exchangeable for, the Merger Consideration as provided in applicable consideration to be paid to the holders of such shares pursuant to Section 2.1(a) of this Agreement3.01 above, but instead such holder the holders thereof shall be entitled to payment of the fair value of such Dissenting Shares shares as determined in accordance with the provisions of Section 262. At Chapter 92A of the Effective TimeNRS; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each that if (i) any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value subsequently deliver a written withdrawal of such Dissenting Shares in accordance demand with the provisions written consent of Section 262. Notwithstanding Target, or (ii) the foregoingMerger shall be abandoned, if any such holder terminated or rescinded, or (iii) the shareholders of Target or Parent shall fail to perfect or otherwise shall waive, withdraw or lose approve the right to appraisal under Section 262Merger, or (iv) no demand or petition for the determination of fair value by a court shall have been made or filed within the time provided in Chapter 92A of the NRS, or (v) a court of competent jurisdiction shall determine that such holder shareholder is not entitled to the relief provided by Section 262Chapter 92A of the NRS, then the right of such holder shareholder to be paid the fair value of such holder’s Dissenting Shares under Section 262 his shares shall cease and such Dissenting Shares his status as a shareholder shall be deemed restored retroactively without prejudice to be Mixed Consideration Electing Shares that any corporate proceeding which may have been taken by Target during the interim, and, in cases (i), (iv) or (v), such shares shall thereupon be converted at the Effective Time into, and shall have become, into the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demandsreceive, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to be exchangeable for, as of the Effective Time, the Company shall notconsideration to be paid to the holders of such shares pursuant to Section 3.01 above. Target agrees that, prior to the Effective Time and without the prior written consent of Parent (which consent shall Parent, it will not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any objection by a holder of the foregoingDissenting Shares.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) Each share of Company Common Stock which is issued and outstanding immediately prior to the Effective Time that are and which is held by any a holder who is entitled to has not voted such share in favor of the Merger, who shall have delivered a written demand and properly demands for appraisal of such Dissenting Shares pursuant toshare in the manner provided by Delaware Law and who, and who complies in all respects with, the provisions of Section 262 as of the DGCL Effective Time, shall not have effectively withdrawn or lost such right to appraisal (each such share, a “Section 262Dissenting Share”) shall not be converted into the a right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder Consideration. The holders thereof shall be entitled only to such rights as are granted by Section 262 of the Delaware Law (“Section 262”). Each holder of Dissenting Shares who becomes entitled to payment of for such shares pursuant to Section 262 shall receive payment therefor from the fair value of such Dissenting Shares Surviving Corporation in accordance with the provisions of Section 262. At the Effective TimeDelaware Law; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each that (i) if any such holder of Dissenting Shares shall cease have failed to establish his or her entitlement to appraisal rights as provided in Section 262, (ii) if any such holder of Dissenting Shares shall have effectively withdrawn his or her demand for appraisal of such shares or lost his or her right to appraisal and payment for shares under Section 262 or (iii) if neither any rights with respect theretoholder of Dissenting Shares nor the Surviving Corporation shall have filed a petition demanding a determination of the value of all Dissenting Shares within the time provided in Section 262 of the Delaware Law, except such holder shall forfeit the right to appraisal of such shares and each such share shall be treated as if it had been converted, as of the Effective Time, into a right to receive the fair value of such Dissenting Shares in accordance with Merger Consideration, without interest thereon, from the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementSurviving Corporation. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsStock, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands. Any communication to be made by the Company to any holder of Company Common Stock with respect to such demands shall be submitted to Parent in advance and shall not be presented to any holder of Company Common Stock prior to the Company receiving Parent’s consent, which shall not be unreasonably delayed or agree to do any of the foregoingwithheld.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are and held by any a holder or beneficial holder that or who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toin accordance with, and that or who complies in all respects with, the provisions of Section 262 of the DGCL (such Shares, the “Section 262”Dissenting Shares” until such time as such holder fails to perfect or otherwise waives, withdraws, or loses such holder’s appraisal rights under the DGCL with respect to such Shares) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except instead represent the right to receive only the fair value payment provided by Section 262 of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail or beneficial holder fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses his, her or its right to appraisal under Section 262, 262 of the DGCL or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder or beneficial holder to be paid the fair value receive such payment in respect of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Merger Consideration as provided in Section 2.1(a)(i) of this Agreementand shall no longer be Dissenting Shares. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent and copies of any demands received by the Company for appraisal of any shares of Company Common Stock and any Shares, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and direct all negotiations and proceedings Actions with respect to such demands. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demands, approve any withdrawal of any such demands or agree to do any of the foregoing.

Dissenting Shares. The Owner hereby waives notice of and agrees not to seek or assert any dissenter's or appraisal rights, or any similar rights, to which the Owner would otherwise be entitled. Notwithstanding anything in this Agreement to the contrary, but only in the circumstances and to the extent provided by the DGCL, shares (“Dissenting Shares”) of Company Common Stock issued and that are outstanding immediately prior to the Effective Time and that are held by any holder Stockholders who is entitled did not vote such shares in favor of the Merger or consent to the Merger in writing prior to the Effective Time and who shall have properly and timely delivered to the Company, as the case may be, a written demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies their shares of the Company Common Stock in all respects with, the provisions of accordance with Section 262 of the DGCL (“Section 262Dissenting Shares”) shall not be converted into the right to receive receive, or be exchangeable for, the Effective Time Per Share Merger Consideration as provided in Section 2.1(a) or the contingent right to receive a proportionate percentage of this Agreementthe Escrow Amount or the Earn Out Payment, but instead such holder if any. Instead, the holders of Dissenting Shares shall be entitled to payment of the fair value of such Dissenting Shares shares in accordance with the provisions of Section 262. At 262 of the Effective TimeDGCL; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each that (i) if any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive subsequently withdraw such holder’s demand for payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoingShares, or (ii) if any holder fails to establish and perfect such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled holder’s entitlement to the relief provided by in Section 262262 of the DGCL, then the right rights and obligations of such holder to be paid the receive such fair value of such holder’s Dissenting Shares under Section 262 shall cease terminate, and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time, into the right to receive, and to have become exchangeable for, the Effective Time into, Per Share Merger Consideration and shall have become, the a contingent right to receive a proportionate percentage of the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementEscrow Amount or the Earn Out Payment, if any. The Company shall serve give Parent (i) prompt written notice (but in any event within 48 hours) to Parent of any all demands for appraisal payment under Section 262 of any shares of Company Common Stock and any withdrawals of such demandsthe DGCL, and Parent shall have (ii) the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for payment under Section 262 of the DGCL. Prior to the Effective Time, the The Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemands for payment under Section 262 of the DGCL, or agree to do any of the foregoing. If a holder of Company Common Stock demands appraisal of the fair value of shares of Company Common Stock under Section 262 of the DGCL after Closing and such shares become Dissenting Shares, and subsequently such holder receives payment for the fair value of such Dissenting Shares in lieu of the Effective Time Merger Consideration and the contingent right to receive a proportionate percentage of the Escrow Amount or the Earn Out Payment, if any, Parent shall be entitled to withdraw from the Effective Time Merger Consideration supplied to the Agent in accordance with Section 3.02(c) any portion of such Effective Time Merger Consideration with respect to such Dissenting Shares.

Dissenting Shares. Notwithstanding anything in any provision of this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any holder a Stockholder who is has demanded appraisal for such shares of Company Common Stock in accordance with the DRS (“Dissenting Shares”) shall not be entitled to demand and properly demands appraisal of such Dissenting Shares pursuant tovote for any purpose or receive dividends, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) shall not be converted into the right to receive the Merger Consideration as provided Parent Common Stock in accordance with Section 2.1(a) of this Agreement3.1 hereof, but instead such holder and shall only be entitled to payment of receive such consideration as shall be determined pursuant to the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At DRS; provided, however, that if, after the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail Stockholder fails to perfect or otherwise shall waive, withdraw withdraws or lose the loses his or her right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled otherwise fails to the relief provided by Section 262, then establish the right of such holder to be paid the fair value of such holderStockholder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals under the DRS, such shares of such demands, and Parent Company Common Stock shall have be treated as if they had converted as of the Effective Time into the right to participate receive Parent Common Stock in accordance with Section 3.1 hereof, and direct all such shares of Company Common Stock shall no longer be Dissenting Shares. All negotiations and proceedings with respect to such demands. Prior payment for Dissenting Shares shall be handled jointly by Parent and the Company prior to the Effective Time, Closing Date and exclusively by the Company thereafter. In the event that more than 35% of the outstanding shares of the Company are Dissenting Shares, either the Company or Parent may elect to terminate this Agreement, which shall notforthwith become void and of no further force and effect and the parties hereto shall be released from any and all obligations hereunder; provided, without however, that nothing herein shall relieve any party hereto from liability for the prior written consent breach of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of its representations, warranties, covenants or agreements set forth in this Agreement. In the foregoingevent the Company is unable to pay the Dissenting Shareholders the consideration required by DRS, then Parent or the Company may elect to terminate this Agreement, which shall forthwith become void and of no further force and effect and the parties hereto shall be released from any and all obligations hereunder; provided, however, that nothing herein shall relieve any party hereto from liability for the breach of any of its representations, warranties, covenants or agreements set forth in this Agreement.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares which are outstanding immediately prior to the Effective Time that and which are held by any a holder who is entitled to demand and properly demands appraisal has not voted in favor of such Dissenting Shares pursuant to, the Merger or consented thereto in writing and who complies has demanded appraisal for such Shares in all respects with, the provisions of accordance with Section 262 of the DGCL (“Section 262”"DISSENTING SHARES") shall not be converted into a right to receive the Merger Consideration pursuant to Section 2.8, but the holders of Dissenting Shares shall instead be entitled to receive such consideration as shall be determined pursuant to Section 262 of the DGCL; provided, however, that if any such holder shall have failed to perfect or shall withdraw or lose such holder's right of appraisal and payment under the DGCL, such holder's Shares shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger Consideration Consideration, without interest thereon, as provided in Section 2.1(a) of this Agreement2.8, but instead and such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementShares. The Company shall serve give Parent and Purchaser prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares Shares, and of Company Common Stock and any withdrawals of such demandsdemands for appraisal, or of any other instruments served pursuant to Section 262 of the DGCL and received by the Company. Prior to the Effective Time, Parent and Purchaser shall have the right to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedXxxxxx and Purchaser, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree . Each holder of Dissenting Shares shall have only such rights and remedies as are granted to do any such holder under Section 262 of the foregoing.DGCL. 2.10

Dissenting Shares. Notwithstanding anything (a) Anything to the contrary in this Agreement to the contrarynotwithstanding, shares (“Dissenting Shares”) of Company Common Stock which are issued and outstanding immediately prior to the Effective Time that and which are held by any holder shareholders who is have not voted such shares in favor of the Merger and who (i) shall be entitled to demand and properly demands shall have validly exercised rights of appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of Section 262 manner provided in the Sections 1300 through 1312 of the DGCL GCL (“Section 262”the "Dissenters' Rights Provisions") and (ii) as of the Effective Time, shall not have effectively withdrawn or lost such right to appraisal ("Dissenting Shares"), shall not be converted into or represent a right to receive Parent Common Stock pursuant to Section 3.1 hereof, but the holders thereof shall be entitled only to such rights as are granted by the Dissenters' Rights Provisions. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to the Dissenters' Rights Provisions shall receive payment therefor from the Company in accordance therewith; provided, however, that if (A) any such Dissenting Shares shall not become "dissenting shares" pursuant to Sections 1300 (b) of the GCL, (B) any such Dissenting Shares shall lose their status as "dissenting shares" pursuant to Section 1309 thereof, or (C) any holder of Dissenting Shares shall have lost his, her or its status as a "dissenting shareholder" pursuant to Section 1309, then the right to appraisal with respect to such shares shall be lost and each such share shall thereupon be deemed to have been converted, as of the Effective Time, into and shall thereupon represent only the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights consideration otherwise payable with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been Company Stock converted at the Effective Time into, and shall have become, the right pursuant to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement3.1 hereof. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for If appraisal of any shares of Company Common Stock and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings rights with respect to such demands. Prior to the Effective TimeMerger are available, the Company shall not, without provide to holders of Dissenting Shares the prior written consent of Parent notice and other materials required by Section 1301 (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any a) of the foregoingGCL.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares which are outstanding immediately prior to the Effective Time that and which are held by any a holder who is entitled to demand and properly demands appraisal has not voted in favor of such Dissenting Shares pursuant to, the Merger or consented thereto in writing and who complies has demanded appraisal for such Shares in all respects with, the provisions of accordance with Section 262 of the DGCL (“Section 262”"DISSENTING SHARES") shall not be converted into a right to receive the Merger Consideration pursuant to Section 2.8, but the holders of Dissenting Shares shall instead be entitled to receive such consideration as shall be determined pursuant to Section 262 of the DGCL; provided, however, that if any such holder shall have failed to perfect or shall withdraw or lose such holder's right of appraisal and payment under the DGCL, such holder's Shares shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger Consideration Consideration, without interest thereon, as provided in Section 2.1(a) of this Agreement2.8, but instead and such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementShares. The Company shall serve give Parent and Purchaser prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares Shares, and of Company Common Stock and any withdrawals of such demandsdemands for appraisal, or of any other instruments served pursuant to Section 262 of the DGCL and received by the Company. Prior to the Effective Time, Parent and Purchaser shall have the right to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedand Purchaser, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree . Each holder of Dissenting Shares shall have only such rights and remedies as are granted to do any such holder under Section 262 of the foregoingDGCL.

Dissenting Shares. Notwithstanding anything in any provision of this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock including Section 3.01, Shares issued and outstanding immediately prior to the Effective Time that are (other than shares cancelled in accordance with Section 3.01(a)) and held by any a holder who is entitled to demand has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly demands demanded appraisal of such Dissenting Shares pursuant to, and who complies shares in all respects with, the provisions of accordance with Section 262 of the DGCL (such Shares being referred to collectively as the “Section 262”Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s appraisal rights under the DGCL with respect to such Shares) shall not be converted into the or represent a right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment only such rights as are granted by Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At DGCL; provided, however, that if, after the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail fails to perfect perfect, withdraws or otherwise shall waive, withdraw or lose the loses such holder’s right to appraisal under pursuant to Section 262, 262 of the DGCL or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Merger Consideration in accordance with Section 3.01(b), without interest thereon, upon surrender of such Certificate formerly representing such share or transfer of such Book-Entry Share, as provided in Section 2.1(a)(i) of this Agreementthe case may be. The Company shall serve provide Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of Shares, any shares withdrawal of Company Common Stock any such demand and any withdrawals of other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the DGCL that relates to such demandsdemand, and Parent shall have the opportunity and right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without Except with the prior written consent of Parent (which consent Parent, the Company shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands. Any payments to be made in respect of Dissenting Shares shall be made by Parent and/or the Surviving Corporation and not by the Company, Merger Sub or agree to do any by the Exchange Agent, and the Merger Consideration (and the Payment Fund) shall be reduced on a dollar-for-dollar basis, as if the holder of such Dissenting Shares had not been a stockholder on the foregoingClosing Date.

Dissenting Shares. Notwithstanding anything in any provision of this Agreement to the contrarycontrary and to the extent available under the DGCL, shares (“Dissenting Shares”) of Company Common Stock issued and any Shares outstanding immediately prior to the Effective Time that are held by any holder a stockholder (a “Dissenting Stockholder”) who has neither voted in favor of the adoption of this Agreement or the Merger nor consented thereto in writing or is otherwise entitled to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of dissenters’ rights under Section 262 of the DGCL and who has validly asserted dissenters’ rights with respect to the Merger in accordance with the DGCL for such Shares and otherwise not withdrawn or lost such rights (the “Section 262Dissenting Shares”) shall ), will not be converted into into, or represent the right to receive receive, the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead Consideration. Instead such holder stockholder shall be entitled to payment of the fair value of such the Dissenting Shares in accordance with the provisions of Section 262. At 262 of the DGCL (and at the Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding 262 of the foregoingDGCL), if any unless and until such holder shall fail have failed to perfect or shall have effectively withdrawn or lost his or her dissenters’ rights, in which instance such holder’s Shares shall not be deemed Dissenting Shares but shall be entitled to receive the applicable Merger Consideration in accordance with this Article III. Dissenting Stockholders will be entitled to the rights with respect to the Dissenting Shares held by them in accordance with the provisions of the DGCL, including Section 262 of the DGCL, except that all Dissenting Shares held by stockholders who have failed to perfect or who effectively have withdrawn or otherwise shall waivelose their dissenters’ rights pursuant to the provisions of the DGCL will thereupon be deemed to have been converted into, withdraw or lose and represent the right to appraisal under Section 262receive, or a court of competent jurisdiction shall determine that such holder is not entitled the Merger Consideration in the manner provided in Article III and will no longer be Excluded Shares. Notwithstanding anything to the relief provided by contrary contained in this Section 2623.3, if the Merger is abandoned prior to the Effective Time, then the right of such holder any stockholder to be paid the fair value of such holderstockholder’s Dissenting Shares under Section 262 shall pursuant to the provisions of the DGCL will automatically cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreementterminate with no further action by any Person. The Company shall serve will give Parent and Purchaser prompt written notice (but in any event within 48 hours) to Parent of any written demands to receive fair value for appraisal of any shares of Company Common Stock and any Shares held by a stockholder, attempted withdrawals of such demands, and any other instruments served pursuant to applicable Law received by the Company relating to rights of dissent with respect to the Merger. The Company will give Parent shall have and Purchaser the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsassertion of dissenters’ rights. Prior to the Effective Time, the The Company shall will not, without except with the prior written consent of Parent and Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect toto any demands for payment of fair value for Dissenting Shares, offer to settle or settle any such demands or offer to settle, approve any withdrawal or other treatment of any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrarySection 2.1, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are and held by any a holder who has not voted in favor of the Merger or consented thereto in writing who is entitled to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies has demanded, payment for fair value of such Company Shares (“Dissenting Shares”) in all respects with, the provisions of accordance with Section 262 53-15-4 of the DGCL NMBCA (“Section 26253-15-4”) shall not be converted into the right to receive the Per Share Merger Consideration as provided for each such Dissenting Share, unless and until such holder fails to perfect or effectively withdraws or otherwise loses the right to receive payment of fair value for such holder’s Dissenting Shares in accordance with Section 2.1(a) of this Agreement, but instead 53-15-4. Any such holder shall instead be entitled only to receive payment of the fair value of such holder’s Dissenting Shares in accordance with the provisions of Section 26253-15-4 less any applicable Taxes required to be withheld in accordance with Section 2.4(e) with respect to such payment. At the Effective Time, all the Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 26253-15-4. Notwithstanding If, after the foregoingEffective Time, if any such holder shall fail fails to perfect or effectively withdraws or otherwise shall waive, withdraw or lose loses the right to appraisal under Section 262, or a court receive payment of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares in accordance with the provisions of Section 53-15-4 (or had not properly demanded payment under Section 262 shall cease and 53-15-4), then each such Dissenting Shares Share shall be deemed to be Mixed Consideration Electing Shares that have treated as if such Dissenting Share had been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementPer Share Merger Consideration, without interest thereon. The Company shall serve will give Parent (a) prompt written notice (but in any event within 48 hours) to Parent of any demands demand for appraisal payment of fair value of any shares of Company Common Stock and Shares in accordance with Section 53-15-4, any withdrawals of such demands, and Parent shall have any other communications received by the right Company or its Representatives in respect of the demand, withdrawal, or perfection of any rights under Section 53-15-4 and (b) the opportunity to participate in and direct conduct jointly with the Company all negotiations and proceedings with respect to such demandsdemands related to any Company Shares under Section 53-15-4. Prior to the Effective Time, the The Company shall will not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, to any Dissenting Shares or settle or offer to settle, settle any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in any provision of this Agreement to the contrarycontrary and to the extent available under the DGCL, shares (“Dissenting Shares”) of Company Common Stock issued and any Shares outstanding immediately prior to the Effective Time that are held by any holder a stockholder (a “Dissenting Stockholder”) who has neither voted in favor of the adoption of this Agreement or the Merger nor consented thereto in writing or is otherwise entitled to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of dissenters’ rights under Section 262 of the DGCL and who has validly asserted dissenters’ rights with respect to the Merger in accordance with the DGCL for such Shares and otherwise not withdrawn or lost such rights (the “Section 262Dissenting Shares”) shall ), will not be converted into into, or represent the right to receive receive, the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead Consideration. Instead such holder stockholder shall be entitled to payment of the fair value of such Dissenting Shares shares in accordance with the provisions of Section 262. At 262 of the DGCL (and at the Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding 262 of the foregoingDGCL), if any unless and until such holder shall fail have failed to perfect or shall have effectively withdrawn or lost his or her dissenters’ rights. Dissenting Stockholders will be entitled to the rights with respect to the Dissenting Shares held by them in accordance with the provisions of the DGCL, including Section 262 of the DGCL, except that all Dissenting Shares held by stockholders who have failed to perfect or who effectively have withdrawn or otherwise shall waivelose their dissenters’ rights pursuant to the provisions of the DGCL will thereupon be deemed to have been converted into, withdraw or lose and represent the right to appraisal under Section 262receive, or a court of competent jurisdiction shall determine that such holder is not entitled the Merger Consideration in the manner provided in Article III and will no longer be Excluded Shares. Notwithstanding anything to the relief provided by contrary contained in this Section 2623.3, if the Merger is abandoned prior to the Acceptance Time, then the right of such holder any stockholder to be paid the fair value of such holderstockholder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed pursuant to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, provisions of the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementDGCL will cease. The Company shall serve will give Parent and Purchaser prompt written notice (but in any event within 48 hours) to Parent of any written demands to receive fair value for appraisal of any shares of Company Common Stock and any Shares held by a stockholder, attempted withdrawals of such demands, and any other instruments served pursuant to applicable Law received by the Company relating to rights of dissent with respect to the Merger. The Company will give Parent shall have and Purchaser the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsassertion of dissenters’ rights. Prior to the Effective Time, the The Company shall will not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedand Purchaser, withheld or delayed), voluntarily make any payment with respect toto any demands for payment of fair value for Dissenting Shares, offer to settle or settle any such demands or offer to settle, approve any withdrawal or other treatment of any such demands, or agree to do any . Any portion of the foregoingMerger Consideration made available to the Paying Agent pursuant to Section 3.2(a) to pay for Dissenting Shares shall be returned to Parent upon demand.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any holder who is a Company Stockholder entitled to demand and properly demands appraisal vote in respect of such Dissenting Shares pursuant toshares of Company Stock who has not voted in favor of the Merger or consented thereto in writing or by electronic transmissions and has properly demanded appraisal for such shares in accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such shares, “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, (i) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (ii) the holders of Dissenting Shares shall cease be entitled to have any only such rights with respect theretoas may be granted to him, except her or it under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail Company Stockholder fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such Company Stockholder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 of the DGCL shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, only represent the right to receive the Mixed Merger Consideration as provided upon the surrender of such shares in Section 2.1(a)(i) of accordance with this AgreementArticle III. The Company shall serve give Acquiror reasonably prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any Stock, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent Acquiror shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent Acquiror (which such consent shall not to be unreasonably conditionedwithheld, withheld conditioned or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL, or agree or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock that are issued and outstanding immediately prior to the Effective Time that and which are held by any holder a stockholder who did not vote in favor of the Mergers (or consent thereto in writing) and who is entitled to demand and properly demands appraisal of such shares (the “Dissenting Shares Shares”) pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (the “Section 262Dissenting Stockholders”) shall not be converted into or be exchangeable for the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to Section 262 of the fair value of such DGCL (“Dissenting Shares in accordance with the provisions of Section 262. At Stockholder Consideration”) (and at the Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except the rights set forth in Section 262 of the DGCL), unless and until such holder shall have failed to perfect or shall have effectively withdrawn or lost its right to receive appraisal under the fair value DGCL. If any Dissenting Stockholder shall have failed to perfect or shall have effectively withdrawn or lost such right, such holder’s shares shall thereupon be treated as if they had been converted into and become exchangeable for the right to receive, as of the Effective Time, the Merger Consideration for each such Dissenting Share, and such shares shall be treated as Cash Election Shares in accordance with under this Agreement and shall not be subject to the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement2.3(g). The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent and a copy of any written demands for appraisal of any shares of Company Common Stock and any appraisal, attempted withdrawals of such demands, and any other instruments served pursuant to applicable Law that are received by the Company relating to Company Stockholders’ rights of appraisal, and Parent shall have the opportunity and right to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal by Company stockholders under the DGCL, so long as Parent does not create any pre-Closing obligations of the Company. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect toto any demands for appraisal, offer to settle or settle any such demands or offer to settle, approve any withdrawal of any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares that are outstanding immediately prior to the Effective Time and that are held by any holder Person who is entitled to demand demand, and who properly demands demands, appraisal of such Dissenting Common Shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (such Section, “Section 262” and, such Common Shares, “Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement), but instead such holder rather, the holders of Dissenting Shares shall be entitled only to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At 262 (and, at the Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, and each holder of Dissenting Shares such holders shall cease to have any rights right with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with Section 262 and any declared but unpaid dividends having a record date prior to the provisions of Section 262. Notwithstanding the foregoingEffective Time); provided, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall to have becomebecome exchangeable solely for, the right to receive the Mixed Merger Consideration (without interest thereon) as provided in Section 2.1(a)(i) of this Agreement2.1(a). The Company shall serve prompt written notice (but in any event within 48 hours) to Parent notify Gannett as promptly as reasonably practicable of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsShares, and Parent Gannett shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent Gannett (which consent shall not be unreasonably withheld, delayed or conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing. Any portion of the Merger Consideration held in the Merger Fund in respect of payment made available to the Paying Agent pursuant to Section 2.2(a) to pay for Dissenting Shares shall be returned to Gannett upon demand.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company MSLO Common Stock issued and outstanding immediately prior to the MSLO Effective Time that are held by any holder who has not voted in favor of the MSLO Merger and who is entitled to demand and properly demands appraisal of such Dissenting Shares shares pursuant to, and who complies in all respects with, the provisions of to Section 262 of the DGCL (“Section 262Dissenting Shares”) shall not be converted into the right to receive the MSLO Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead unless and until such holder shall be entitled have failed to payment of the fair value of perfect, or shall have effectively withdrawn or lost, such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the holder’s right to appraisal under the DGCL. Dissenting Shares shall be treated in accordance with Section 262262 of the DGCL. If any such holder fails to perfect or withdraws or loses any such right to appraisal, or a court each such share of competent jurisdiction MSLO Common Stock of such holder shall determine thereupon be converted into and become exchangeable only for the right to receive, as of the later of the MSLO Effective Time and the time that such holder is not entitled right to appraisal has been irrevocably lost, withdrawn or expired, the MSLO Merger Consideration in accordance with Section 2.1(a). Notwithstanding anything to the relief provided by contrary in this Section 2622.1(f), if this Agreement is terminated prior to the Effective Time, then the right of such holder any stockholder to be paid the fair value of such holderstockholder’s Dissenting Shares under pursuant to Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at of the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementDGCL will cease. The Company MSLO shall serve prompt written notice (but in any event within 48 hours) to Parent Sequential of any demands for appraisal of any shares of Company MSLO Common Stock and any Stock, attempted withdrawals of such demandsnotices or demands and any other instruments received by MSLO relating to rights to appraisal, and Parent Sequential shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company MSLO shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedSequential, withheld or delayed), voluntarily make any payment with respect to, settle or offer to settle any such demands, and prior to the Effective Time, Sequential shall not, without the prior written consent of MSLO (such consent not to be unreasonably withheld, conditioned or delayed), make any payment with respect to, settle or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this ------------------ Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock, 5% Stock and Preference Stock issued and outstanding immediately prior to on the Effective Time that Date which are held of record by any holder stockholders who is entitled to demand and properly demands appraisal shall not have voted such shares in favor of such Dissenting Shares pursuant tothe Merger, if applicable, and who complies in all respects with, the provisions of Section 262 shall have properly exercised rights to demand payment of the DGCL fair value of such shares in accordance with Sections 86 through 98, inclusive, of the MBCL (“Section 262”"Dissenting Shares") shall not be converted into the right to receive the Merger Consideration as provided consideration specified in Section 2.1(a) of this Agreement1.10(a), 1.10(b), or 1.10(c), respectively, but the holders thereof instead such holder shall be entitled to payment of the fair value of such Dissenting Shares shares in accordance with the provisions of Section 262. At Sections 86 to 92, inclusive, of the Effective TimeMBCL (the "Dissenting Consideration"); provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease that (i) if such a holder fails to exist, and each holder file a notice of Dissenting Shares shall cease election -------- ------- to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares dissent in accordance with Section 86 of the provisions MBCL or, after filing such notice of Section 262. Notwithstanding election, subsequently delivers an effective written withdrawal of such notice or fails to establish his entitlement to appraisal rights as provided in Sections 87 through 98, inclusive, of the foregoingMBCL, if any such holder shall fail to perfect he or otherwise shall waive, withdraw or lose the right to appraisal under Section 262she be so required, or (ii) if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262receive payment for his shares or such holder shall otherwise lose his or her appraisal rights, then in either of such cases, each share of Company Common Stock, 5% Stock or Preference Stock, respectively, held of record by such holder or holders shall automatically be converted into and represent only the right to receive the Total Merger Consideration, the 5% Stock Consideration or the Preference Stock Consideration, respectively, upon the surrender of the certificate or certificates representing such holder to be paid Dissenting Shares. The Company shall give Parent prompt notice of any demands received by the Company for payment of the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any withdrawals of such demandsshares, and Parent shall have the right to participate in and direct all the negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment (except to the extent that any such payment is made pursuant to a court order) with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) no share of Company Common Stock issued and outstanding immediately prior Stock, the holder of which shall not have voted in favor of or consented in writing to the Effective Time that are held by any holder who is entitled to demand Merger and shall have properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, complied with the provisions of Section 262 of the DGCL as to appraisal rights (a “Section 262Dissenting Share”) ), shall not be deemed converted into and to represent the right to receive the Merger Consideration as provided in Section 2.1(a) hereunder; and the holders of this AgreementDissenting Shares, but instead such holder if any, shall be entitled to payment such rights (but only such rights) as are granted by Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective TimeDGCL; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each that if any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid or holders (as the fair value of case may be) shall forfeit such holder’s Dissenting Shares under rights as are granted by Section 262 shall cease and each such Dissenting Shares Share shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at into, as of the Effective Time into, and shall have becomeTime, the right to receive the Mixed Consideration as Merger Consideration, without any interest thereon, upon surrender, in the manner provided in Section 2.1(a)(i) 2.02, of this Agreementthe certificate or certificates that formerly evidenced such shares of Company Common Stock. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any written demands for appraisal of any shares of Company Common Stock and any withdrawals of such demands, and Parent shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal under the DGCL. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect toto any demands for appraisal of Company Common Stock, or settle or offer to settle, settle or settle any such demands, or agree . Any amount payable to do any holder of Dissenting Shares exercising appraisal rights shall be paid in accordance with the foregoingDGCL solely by the Survivor from its own funds.

Dissenting Shares. Notwithstanding anything to the contrary set forth in this Agreement to the contraryAgreement, shares (“Dissenting Shares”) of Company Common Stock no Shares issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands in respect of which appraisal of such Dissenting Shares pursuant to, and who complies rights shall have been perfected in all respects with, the provisions of accordance with Section 262 of the DGCL in connection with the Merger (collectively, “Section 262Dissenting Shares”) shall not be converted into a right to receive that portion of the Merger Consideration otherwise payable to the holder of such Dissenting Shares as provided in Section 2.1(a), but shall instead be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to the Merger Consideration as provided in Section 2.1(a) DGCL. Each holder of this AgreementDissenting Shares who, but instead such holder shall be pursuant to the provisions of the DGCL, becomes entitled to payment of the fair value of such Dissenting Shares shall receive payment therefor in accordance with the provisions DGCL (but only after the value therefor shall have been agreed upon or finally determined pursuant to the DGCL). In the event that any holder of Section 262. At Shares fails to make an effective demand for payment or fails to perfect its appraisal rights as to the Effective Time, all Shares or any Dissenting Shares shall no longer be outstandingotherwise lose their status as Dissenting Shares, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting then any such Shares shall cease to have any rights with respect thereto, except be converted into the right to receive the fair value Merger Consideration issuable pursuant to Section 2.1(a) in respect of such Shares as if such Shares had never been Dissenting Shares Shares, in accordance with and following the provisions satisfaction of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease applicable requirements and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided conditions set forth in Section 2.1(a)(i) of this Agreement2.2. The Company shall serve give Parent prompt written notice (but and in no event more than one (1) Business Day) of (i) any event within 48 hours) to Parent of any demands demand received by the Company for appraisal of any shares of Company Common Stock Shares (and any withdrawals of such demands, shall give Parent the opportunity (at Parent’s election) to direct and Parent shall have the right to participate in and direct control all negotiations and proceedings with respect to any such demandsdemand) or (ii) any notice of exercise by any holder of Shares of appraisal rights in accordance with the DGCL. Prior to the Effective Time, the The Company shall notnot (and shall not agree to), without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, or settle settle, or offer to settle, any such demandsdemands or applications, or agree waive any failure to do timely deliver a written demand for appraisal or timely take any of other action to perfect appraisal rights in accordance with the foregoingDGCL.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and that are outstanding immediately prior to the Effective Time and that are held by any holder Person who is entitled to demand has not voted in favor of, or consented to, the Mergers and properly demands appraisal of such Dissenting Shares shares of Company Common Stock pursuant to, to Section 262 of the DGCL and who otherwise complies in all respects with, the provisions of with Section 262 of the DGCL (“Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement2.1(c), but instead such holder rather the holders of Dissenting Shares shall be entitled to payment only those rights as are granted by Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At DGCL (it being understood and acknowledged that at the Effective Time, all such Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, exist and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except thereto other than the right to receive the “fair value value” of such Dissenting Shares as determined in accordance with Section 262 of the provisions of Section 262. Notwithstanding the foregoingDGCL); provided, however, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court 262 of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, become exchangeable solely for the right to receive receive, the Mixed Merger Consideration as provided in Section 2.1(a)(i2.1(c) (without interest and less any amounts entitled to be deducted or withheld pursuant to Section 2.5) upon the surrender of this Agreementthe Certificates of Book Entry Shares previously representing such Dissenting Shares. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsStock, and Parent shall have the right to participate in and direct all negotiations and proceedings actions with respect to such demandsdemands at Parent’s sole expense. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent Parent, (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily i) make any payment with respect to, or settle or offer to settle, any such demands, (ii) waive any failure to timely deliver a written demand for appraisal or timely take any other action to perfect appraisal rights in accordance with the DGCL, or (iii) agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything If, in this Agreement to connection with the contraryFirst Merger, shares (“Dissenting Shares”) holders of Company Capital Stock are entitled to appraisal rights pursuant to Delaware Law, any Dissenting Shares shall not be converted into a right to receive shares of Acquiror Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of such Dissenting Shares pursuant tocash as provided in Section 2.4(b), and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) but shall not be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to Delaware Law. Each holder of Dissenting Shares who, pursuant to the Merger Consideration as provided in Section 2.1(a) provisions of this AgreementDelaware Law, but instead such holder shall be becomes entitled to payment of the fair value of such Dissenting Shares shares shall receive payment therefor in accordance with Delaware Law (but only after the provisions value therefor shall have been agreed upon or finally determined pursuant to Delaware Law). In the event that any Company Stockholder fails to make an effective demand for payment or fails to perfect its appraisal rights as to its shares of Section 262. At the Effective Time, all Company Capital Stock or any Dissenting Shares shall no longer otherwise lose their status as Dissenting Shares, then any such shares shall immediately be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except converted into the right to receive the fair value consideration issuable pursuant to Article 2 in respect of such shares as if such shares had never been Dissenting Shares Shares, and Acquiror shall issue and deliver to the holder thereof, at (or as promptly as reasonably practicable after) the applicable time or times specified in accordance Section 2.9, following the satisfaction of the applicable conditions set forth in Section 2.9, the shares of Acquiror Common Stock and cash, without interest thereon, to which such Company Stockholder would have been entitled under Section 2.4(b) with respect to such shares, subject to the provisions of Section 262. Notwithstanding 2.4(b)(vii) (regarding the foregoingdelivery of cash in lieu of any fractional shares), if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose Section 2.4(e) (regarding the right to appraisal under continuation of vesting and repurchase rights) and Section 262, or a court 2.7 (regarding the withholding of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementEscrow Cash). The Company shall serve give Acquiror prompt written notice (but and in any no event within 48 hoursmore than two business days) to Parent of any demands demand received by the Company for appraisal of any shares Company Capital Stock or notice of exercise of a Company Common Stock and any withdrawals of such demandsStockholder’s appraisal rights, and Parent Acquiror shall have the right to participate in and direct control all negotiations and proceedings with respect to any such demandsdemand. Prior to Acquiror agrees that, except with the Effective Time, the Company shall not, without the Representative’s prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayedwithheld), Acquiror shall not voluntarily make any payment or offer to make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoingdemand for appraisal.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“with respect to each Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of Share, such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) Share shall not be converted into the right to receive the Xxxxxx Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled cancelled and shall represent the right to payment receive only the payment, solely from Holdco, of the fair appraisal value of such the Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262. At 262 of the Effective TimeDGCL; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, that if any such holder Person shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court 262 of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262DGCL, then the right of such holder Person to be paid the fair value of such holder’s Dissenting Shares receive those rights under Section 262 of the DGCL shall cease and such Dissenting Shares shares of Xxxxxx Common Stock shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, represent only the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementXxxxxx Merger Consideration, without interest thereon. The Company Xxxxxx shall serve give Xxxxxx prompt written notice (but in any event within 48 hours) to Parent of any demands received by Xxxxxx for appraisal of any shares of Company Xxxxxx Common Stock Stock, any written withdrawal or purported withdrawal of any such demand and any withdrawals of other demand, notice or instrument delivered to Xxxxxx prior to the Effective Time that relates to such demandsdemand, and Parent Xxxxxx shall have the right to participate in and direct control all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent Xxxxxx shall not be unreasonably conditionedsettle, withheld or delayed), voluntarily make any payment payments with respect to, or settle to or offer to settle, any such demandsclaim with respect to Dissenting Shares without the written consent of Xxxxxx, or agree to do any in Xxxxxx’x sole discretion. Any portion of the foregoingXxxxxx Merger Consideration made available to the Exchange Agent pursuant to Section 4.02(a) to pay for Xxxxxx Common Stock for which appraisal rights have been perfected as described in this Section 4.05 shall be returned to Holdco, upon demand.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrarycontrary herein, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that (other than shares of Company Common Stock owned by Parent or any Parent Subsidiaries) and which are held by holders of Company Common Stock who shall have not voted, or caused or permitted to be voted, any holder who is entitled to demand and properly demands appraisal shares of such Dissenting Shares pursuant to, Company Common Stock in favor of adoption of the Plan of Merger at the Company Shareholders Meeting and who complies shall have properly asserted (and not lost or effectively withdrawn) his, her or its appraisal rights for such shares in all respects withaccordance with Article 13 of the NCBCA (any such shares of Company Common Stock, collectively, the provisions of Section 262 of the DGCL (“Section 262Dissenting Shares”) shall not be converted into or represent the right to receive the Merger Consideration as provided in pursuant to Section 2.1(a) 2.01(c). Such holders of this Agreement, but Dissenting Shares instead such holder shall only be entitled to payment of the fair value of receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to and subject to the requirements of Article 13 of the NCBCA and in accordance with the provisions of this Section 2622.01(g), except that all Dissenting Shares held by holders of Company Common Stock who shall have failed to perfect or who effectively shall have withdrawn or otherwise lost his, her or its right to dissent from the Merger under Article 13 of the NCBCA shall cease to be Dissenting Shares, holders of such shares shall not be entitled to appraisal of such shares of Company Common Stock under Article 13 of the NCBCA and such shares shall be deemed to be converted into and represent the right to receive the Merger Consideration, without any interest thereon, in the manner provided for in Section 2.01(c). At From and after the Effective Time, all the Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired cancelled and shall cease to exist, exist and each any holder of Dissenting Shares shall cease to have any rights with respect theretothereto except (i) as provided in Article 13 of the NCBCA, except (ii) as provided in the prior sentence and (iii) the right to receive payment of any dividends or other distributions with a record date prior to the fair value of Effective Time that may have been declared or made by the Company on such Dissenting Shares in accordance with the provisions terms of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect this Agreement or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled prior to the relief provided by Section 262, then the right date of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease this Agreement and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted which remain unpaid at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementTime. The Company shall serve (i) give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands notice or demand for appraisal of any shares of Company Common Stock and or any withdrawals of such demandsdemands received by the Company, (ii) give Parent the opportunity to direct and Parent shall have the right to participate in and direct control all negotiations and proceedings with respect to any such demands. Prior demands (provided that Parent shall reasonably consult with the Company with respect to the Effective Time, any such proceedings and the Company shall not be required to pay any amounts prior to the Closing in settlement of any such negotiations or proceedings) and (iii) not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle, offer to settle or offer to settle, otherwise negotiate any such demands, or agree . Each holder of Dissenting Shares who becomes entitled to do any payment for such shares pursuant to Article 13 of the foregoingNCBCA shall receive cash payment therefor from the Surviving Corporation from funds provided by BATUS (but only after the amount of the consideration required therefor shall have been agreed upon or finally determined pursuant to the NCBCA).

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, to the extent that holders of Company Common Stock are entitled to appraisal rights under Section 262 of the DGCL, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to has properly exercised and perfected his or her demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of rights under Section 262 of the DGCL and not effectively withdrawn or lost such holder’s rights to appraisal (the “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead the holders of such holder Dissenting Shares shall be entitled to payment receive such consideration as shall be determined pursuant to Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At DGCL (it being understood and acknowledged that at the Effective Time, all such Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, exist and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except thereto other than the right to receive the “fair value value” of such Dissenting Shares as determined in accordance with Section 262 of the provisions of Section 262. Notwithstanding the foregoing, DGCL); provided that if any such holder shall fail have failed to perfect or otherwise shall waivehave effectively withdrawn or lost his, withdraw her or lose the its right to appraisal and payment under Section 262the DGCL (whether occurring before, at or a court of competent jurisdiction shall determine that such holder is not entitled to after the relief provided by Section 262Effective Time), then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shares of Company Common Stock shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementMerger Consideration, without any interest thereon, and such shares shall not be deemed to be Dissenting Shares. The Company shall serve prompt written give notice (but in any event within 48 hours) to Parent as promptly as reasonably practicable of any demands for appraisal of any shares of Company Common Stock and any Stock, withdrawals of such demands and any other instruments served pursuant to the DGCL received by the Company relating to appraisal demands, and Parent shall have the right to participate in all material discussions with third parties and direct all negotiations and proceedings Proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, to or settle or compromise or offer to settle, settle or compromise any such demandsdemand or Proceeding, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything to the contrary set forth in this Agreement to the contraryAgreement, no shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands in respect of which appraisal of such Dissenting Shares pursuant to, and who complies rights shall have been perfected in all respects with, the provisions of accordance with Section 262 of the DGCL in connection with the Merger (collectively, “Section 262Dissenting Shares”) shall not be converted into a right to receive that portion of the Merger Consideration otherwise payable to the holder of such Dissenting Shares as provided in Section 2.1(a), but shall instead be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to the DGCL. Each holder of Dissenting Shares who, pursuant to the provisions of the DGCL, becomes entitled to payment of the fair value of such shares shall receive payment therefor in accordance with the DGCL (but only after the value therefor shall have been agreed upon or finally determined pursuant to the DGCL). In the event that any holder of Company Common Stock fails to make an effective demand for payment or fails to perfect its appraisal rights as to its shares of Company Common Stock or any Dissenting Shares shall otherwise lose their status as Dissenting Shares, then any such shares shall be converted into the right to receive the Merger Consideration as provided in issuable pursuant to Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value in respect of such shares as if such shares had never been Dissenting Shares Shares, in accordance with and following the provisions satisfaction of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled applicable requirements and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided conditions set forth in Section 2.1(a)(i) of this Agreement2.2. The Company shall serve give Parent prompt written notice (but and in no event more than two Business Days) of (i) any event within 48 hours) to Parent of any demands demand received by the Company for appraisal of any shares of Company Common Stock (and any withdrawals of such demands, and shall give Parent shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to any such demandsdemand) or (ii) any notice of exercise by any holder of Company Common Stock of appraisal rights in accordance with the DGCL. Prior to the Effective TimeThe Company agrees that, the Company shall not, without the except with Parent’s prior written consent of Parent (which consent consent, it shall not be unreasonably conditioned, withheld voluntarily make any payment or delayed), voluntarily offer to make any payment with respect to, or settle or offer to settle, any such demands, demand for appraisal or agree to do any exercise of the foregoingappraisal rights.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock Shares issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand has not voted in favor of the Merger and who properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of to Section 262 of the DGCL (the “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except converted into the right to receive such consideration as may be determined to be due to the fair value holders of such Dissenting Shares in accordance with pursuant to the provisions of Section 262. Notwithstanding the foregoingDGCL, if any unless and until such holder holders shall fail have failed to perfect or otherwise shall waivehave effectively withdrawn or lost, withdraw or lose the such holder’s right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such DGCL. Dissenting Shares shall be deemed treated in accordance with Section 262 of the DGCL. If any such holder fails to perfect or withdraws or loses any such right to appraisal, each such Share of such holder shall thereupon be Mixed Consideration Electing Shares that have been converted at into and become exchangeable only for the right to receive, as of the later of the Effective Time intoand the time that such right to appraisal has been irrevocably lost, and shall have becomewithdrawn or expired, the right to receive the Mixed Merger Consideration as provided in accordance with Section 2.1(a)(i) of this Agreement2.01(a). The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any written demands for appraisal of any shares of Company Common Stock and any Shares, withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the “fair value” of Dissenting Shares, as provided in Section 262 of the DGCL, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make or agree to make any payment with respect toto any demands for appraisals of capital stock of the Company, offer to settle or settle any such demands or offer to settle, approve any withdrawal of any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) no Share, the holder of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is which shall be entitled to demand and properly demands appraisal of such Dissenting Shares pursuant toassert, and who complies in all respects with, shall have complied with the provisions of Section 262 of the DGCL as to, dissenter's rights (“Section 262”) a "Dissenting Share"), shall not be deemed converted into and to represent the right to receive the Merger Consideration as provided in Section 2.1(a) hereunder, and the holders of this AgreementDissenting Shares, but instead such holder if any, shall be entitled to payment payment, solely from the Surviving Corporation, of the fair appraised value of such Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262. At 262 of the Effective TimeDGCL; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each that (i) if any holder of Dissenting Shares shall cease to have any rights with respect theretoshall, except under the right to receive circumstances permitted by the fair value DGCL, subsequently deliver a written withdrawal of his or her demand for appraisal of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoingShares, or (ii) if any holder fails to establish his or her entitlement to rights to payment as provided in such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or (iii) if neither any holder of Dissenting Shares nor the Surviving Corporation has filed a court petition demanding a determination of competent jurisdiction shall determine that the value of all Dissenting Shares within the time provided in such holder is not entitled to the relief provided by Section 262, then the right of such holder or holders (as the case may be) shall forfeit such right to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and payment for such Dissenting Shares pursuant to such Section 262, and each such Share shall not be deemed to considered a Dissenting Share but shall thereupon be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have becometreated as, a Non-Election Share in accordance with, and subject to the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of provisions of, this AgreementArticle IV. The Company shall serve give Parent (X) prompt written notice (but in any event within 48 hours) to Parent of any written demands for appraisal of any shares of Company Common Stock and any Shares, attempted withdrawals of such demands, and Parent shall have any other instruments received by the right Company relating to participate in shareholders' rights of appraisal and (Y) the opportunity to direct all negotiations and proceedings with respect to such demandsdemands for appraisal under the DGCL. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect toto any demands for appraisals of Shares, offer to settle or settle any such demands or offer to settle, approve any withdrawal of any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything to the contrary contained in this Agreement to the contraryAgreement, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal rights under Section 262 of such Dissenting Shares pursuant tothe DGCL, and who complies in all respects with, the provisions of has properly exercised and perfected his or her demand for appraisal rights under Section 262 of the DGCL (the “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement3.1(b), but instead the holders of such holder Dissenting Shares shall be entitled to payment receive such consideration as shall be determined pursuant to Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. At the Effective Time, all the Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262262 of the DGCL. Notwithstanding the foregoing, if any such holder shall fail have failed to perfect or shall have otherwise shall waivewaived, withdraw effectively withdrawn or lose the lost his or her right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 of the DGCL shall cease and such shares shall no longer be considered Dissenting Shares for purposes hereof and such holder’s shares of Company Common Stock shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Consideration Merger Consideration, without any interest thereon, as provided in Section 2.1(a)(i) of this Agreement3.1(b). The Company shall serve provide prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any Stock, attempted withdrawals of such demandsnotices or demands and any other instruments received by the Company relating to rights to appraisal, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, or settle or offer to settle, settle any such demands. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.2(a) to pay for Dissenting Shares shall be returned by the Paying Agent to Parent, upon demand; provided, that Parent shall remain liable to pay, or agree cause the Surviving Corporation to do pay, the Merger Consideration with respect to any shares of Company Common Stock covered by the foregoingthird sentence of this Section 3.5.

Dissenting Shares. Notwithstanding anything in any other provisions of this Agreement to the contrary, any shares (“Dissenting Shares”) of Company Common Capital Stock issued and outstanding immediately prior to the Effective Time that are held by any and with respect to which the holder who is entitled to demand and thereof has properly demands demanded appraisal rights in accordance with Section 262 of such Dissenting Shares pursuant toDelaware Law, and who complies in all respects withhas not effectively withdrawn or lost such holder’s appraisal rights under Delaware Law (collectively, the provisions of Section 262 of the DGCL (“Section 262Dissenting Shares”) ), shall not be converted into the or represent a right to receive the Merger Consideration as provided applicable consideration for Company Capital Stock set forth in Section 2.1(a1.6(b)(i), Section 1.6(b)(ii) of this Agreementor Section 1.6(b)(iii), as applicable, but instead such the holder thereof shall only be entitled to payment of the fair value of such Dissenting Shares in accordance with rights as are provided by Delaware Law. Notwithstanding the provisions of this Section 262. At the Effective Time1.6(b)(v), all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each if any holder of Dissenting Shares shall cease effectively withdraw or lose (through failure to have any perfect or otherwise) such holder’s appraisal rights with respect theretounder Delaware Law, except then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares shall automatically be converted into and represent only the right to receive receive, upon surrender of the fair value of certificate representing such Dissenting Shares shares, upon the terms set forth in accordance with this Section 1.6 and throughout this Agreement (including the escrow holdback and indemnification provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreement), the consideration for Company Capital Stock set forth in Section 1.6(b)(i), Section 1.6(b)(ii) or Section 1.6(b)(iii), as applicable, without interest thereon. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands written demand for appraisal of any shares of received by the Company Common Stock and any withdrawals of such demands, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior pursuant to the Effective Time, the Company shall not, without applicable provisions of Delaware Law. Except with the prior written consent of Parent (which consent Parent, the Company shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree offer to do settle or settle such demands, in any case unless such payment or settlement (A) is paid by the Company in full prior to Closing (and, therefore, fully reflected in the calculation of Closing Cash hereunder), (B) only involves the foregoingpayment of cash prior to the Closing and does not involve any other non-monetary remedy, and (C) includes as a condition thereto an unconditional, irrevocable and full release of any and all appraisal, dissenters’ or other similar claims, causes of action and rights (and all related matters) under all applicable Legal Requirements against the Company and its Subsidiaries and Parent and its Affiliates.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, to the extent that holders of Company Common Stock are entitled to appraisal rights under Section 262 of the DGCL, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to has properly exercised and perfected his or her demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of rights under Section 262 of the DGCL and not effectively withdrawn or lost such holder’s rights to appraisal (the “Section 262Dissenting Shares”) ), shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead the holders of such holder Dissenting Shares shall be entitled to payment receive such consideration as shall be determined pursuant to Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At DGCL (it being understood and acknowledged that at the Effective Time, all such Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, exist and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except thereto other than the right to receive the “fair value value” of such Dissenting Shares as determined in accordance with Section 262 of the provisions of Section 262. Notwithstanding the foregoingDGCL); provided, however, that if any such holder shall fail have failed to perfect or otherwise shall waivehave effectively withdrawn or lost his, withdraw her or lose the its right to appraisal and payment under Section 262the DGCL (whether occurring before, at or a court of competent jurisdiction shall determine that such holder is not entitled to after the relief provided by Section 262Effective Time), then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shares of Company Common Stock shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementMerger Consideration, without any interest thereon, and such shares shall not be deemed to be Dissenting Shares. The Company shall serve give prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any Stock, withdrawals of such demands and any other instruments served pursuant to the DGCL received by the Company relating to appraisal demands, and Parent shall have the right to participate in and direct all negotiations and proceedings Proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, to or settle or compromise or offer to settle, settle or compromise any such demandsdemand or Proceeding, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything to the contrary set forth in this Agreement to the contraryAgreement, shares (“Dissenting Shares”) of Company Common Stock Shares issued and outstanding immediately prior to the Effective Time that are (other than Cancelled Shares) and held by any a holder who is entitled to demand has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly demands exercised appraisal rights of such Dissenting Shares pursuant to, and who complies shares in all respects with, the provisions of accordance with Section 262 of the DGCL (such shares being referred to collectively as the “Section 262”Dissenting Shares” until such time as such holder fails to perfect, withdraws or otherwise loses such holder’s appraisal rights under Delaware Law with respect to such shares) shall not be converted into the a right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair appraised value of such Dissenting Shares shares in accordance with Section 262 of the provisions of Section 262. At DGCL (in such case, the Effective Time, all Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, regard thereto except the with regard to such holders’ right to receive the fair value of such Dissenting Shares in accordance with to the provisions extent afforded by Section 262 of Section 262. Notwithstanding the foregoingDGCL); provided, if any however, that if, after the Effective Time, such holder shall fail fails to perfect perfect, withdraws or otherwise shall waive, withdraw or lose the loses such holder’s right to appraisal under pursuant to Section 262262 of the DGCL, or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have treated as if they had been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Merger Consideration in accordance with Section 1.4(b)(i), without interest thereon, upon surrender of such Certificate formerly representing such share or transfer of such Uncertificated Share, as provided in Section 2.1(a)(i) of this Agreementthe case may be. The Company shall serve provide Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of Shares (or written threats thereof), any shares written withdrawal or purported withdrawal of Company Common Stock any such demand and any withdrawals of other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to Delaware Law that relates to such demandsdemand, and Parent shall have the opportunity and right to participate in and direct all negotiations and proceedings Legal Table of Contents Proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without Except with the prior written consent of Parent (which consent Parent, the Company shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or offer to settle or offer to settle, or approve the withdrawal of, any such demands, demands or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and that are outstanding immediately prior to the Effective Time and that are held by any holder Person who is entitled to demand and properly demands appraisal of such Dissenting Shares shares of Company Common Stock pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement2.1(c), but instead such holder rather the holders of Dissenting Shares shall be entitled to payment by the Surviving Corporation of the fair value of such Dissenting Shares in accordance with Section 262 of the provisions of Section 262. At DGCL (it being understood and acknowledged that at the Effective Time, all such Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, exist and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except thereto other than the right to receive the “fair value value” of such Dissenting Shares as determined in accordance with Section 262 of the provisions of Section 262. Notwithstanding the foregoingDGCL); provided, however, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court 262 of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, become exchangeable solely for the right to receive receive, the Mixed Merger Consideration as provided in Section 2.1(a)(i) of this Agreement2.1(c). The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsStock, and Parent shall have the right to participate in and direct all negotiations and proceedings actions with respect to such demandsdemands at Parent’s sole expense. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent Parent, (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily i) make any payment with respect to, or settle or offer to settle, any such demands, (ii) waive any failure to timely deliver a written demand for appraisal or timely take any other action to perfect appraisal rights in accordance with the DGCL, or (iii) agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held and owned by any a holder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toshares in accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such shares, “Section 262Dissenting Shares”) shall not be converted into the right to receive the Per Share Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, (a) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (b) the holders of Dissenting Shares shall cease be entitled only to have any such rights with respect thereto, except as may be granted to them under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such holder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Per Share Merger Consideration as provided in Section 2.1(a)(i) of accordance with this AgreementArticle III. The Company shall serve give Acquiror prompt written notice (but and in any event within 48 hourstwo Business Days) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any Stock, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent Acquiror shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedAcquiror, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL, or agree or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrarycontrary (but subject to the provisions of this Section 2.3), shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are (other than Company Shares cancelled in accordance with Section 2.1(b)) and held by any a holder who did not vote in favor of the adoption of this Agreement, and who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Company Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 10-19.1-87 and Section 10-19.1-88 of the DGCL NDBCA (such Company Shares, the “Section 262Dissenting Shares”) shall not be converted into the right to receive the Per Share Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262Consideration. At the Effective Time, all Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder the holders of Dissenting Shares shall cease to have any rights with respect thereto, except the right rights granted to receive them under Section 10-19.1-87 of the fair value of such NDBCA (the “Dissenting Shares in accordance with the provisions of Section 262Stockholder Consideration”). Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses his right to appraisal under Section 262, 10-19.1-87 and Section 10-19.1-88 of the NDBCA or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value Dissenting Stockholder Consideration in respect of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Consideration as provided Per Share Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law in Section 2.1(a)(i) of accordance with this AgreementArticle 2 and shall not thereafter be deemed to be Dissenting Shares. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of Company Shares, any shares waiver or withdrawal of Company Common Stock any such demand, and any withdrawals of other demands, notices or instruments served pursuant to the NDBCA and received by the Company relating to rights to be paid the Dissenting Stockholder Consideration for such demandsDissenting Shares, and Parent shall have the opportunity and right to participate in and direct control all negotiations and proceedings Proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settlecompromise, any such demands, or approve any withdrawal of any such demands, or agree to do any of the foregoing, except to the extent required by applicable Law.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrarycontrary (but subject to the provisions of this Section 2.3), shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are and as to which the holders thereof have continuously held by any holder such Shares through the date shown on the Certificate of Merger giving effect to the Merger, have not voted in favor of the adoption of this Agreement or consented thereto in writing and who is entitled to demand and have properly demands demanded appraisal of such Dissenting Shares pursuant towith respect thereto in accordance with, and who complies have complied in all respects with, the provisions of Section 262 of the DGCL (such shares, the “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262Consideration. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled cancelled and retired and shall cease to exist, and each holder the holders of Dissenting Shares shall cease only be entitled to have any the rights granted to them under Section 262 of the DGCL with respect thereto, except to the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262Shares. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such holder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then (i) the right of such holder to be paid the “fair value value” of such holder’s Dissenting Shares under Section 262 shall cease and cease, (ii) such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Consideration Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law as provided in Section 2.1(a)(i2.5, and (iii) of this Agreementsuch holder shall cease to have any other rights with respect to such Shares. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock Shares and any withdrawals other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the “fair value” of Dissenting Shares (no later than two (2) Business Days following the Company’s receipt of such demandsdemands or instruments), and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, or offer to settle or offer to settlecompromise, or settle or compromise, any such demands, approve any withdrawal of such demands, or waive any failure to timely deliver a written demand for appraisal or otherwise to comply with the DGCL, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock Shares that are issued and outstanding immediately prior to the Effective Time that (other than Shares included in clauses (i) and (iii) of the definition of Excluded Shares) and which are held by any holder a stockholder who did not vote in favor of the Merger (or consent thereto in writing) and who is entitled to demand and properly demands appraisal of such Shares (the “Dissenting Shares Shares”) pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (the “Section 262Dissenting Stockholders”) ), shall not be converted into or be exchangeable for the right to receive the Per Share Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At DGCL (and at the Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive rights set forth in Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoingDGCL), if any unless and until such holder shall fail have failed to perfect or otherwise shall waive, withdraw have effectively withdrawn or lose the lost its right to appraisal under Section 262the DGCL. If any Dissenting Stockholder shall have failed to perfect or shall have effectively withdrawn or lost such right, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have treated as if they had been converted at the Effective Time into, into and shall have become, become exchangeable for the right to receive receive, as of the Mixed Effective Time, the Per Share Merger Consideration as provided for each such Share, in accordance with Section 2.1(a)(i) of this Agreement4.1(a), without interest. The Company shall serve give Parent (i) prompt written notice (but in any event within 48 hours) to Parent and a copy of any written demands for appraisal of any shares of Company Common Stock and any appraisal, attempted withdrawals of such demands, and Parent shall have any other instruments served pursuant to applicable Law that are received by the right Company relating to Company stockholders’ rights of appraisal and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal by Company stockholders under the DGCL. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect toto any demands for appraisal, offer to settle or settle any such demands or offer to settle, approve any withdrawal of any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held and owned by any a holder who is entitled to demand and has properly demands demanded appraisal of such Dissenting Shares pursuant toshares in accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such shares, “Section 262Dissenting Shares”) shall not be converted into the right to receive HighCape Common Stock, and shall instead represent the Merger Consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall be entitled right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, (a) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (b) the holders of Dissenting Shares shall cease be entitled only to have any such rights with respect thereto, except as may be granted to them under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such holder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, and shall have become, into the right to receive HighCape Common Stock upon the Mixed Consideration as provided terms and conditions set forth in Section 2.1(a)(i) of this AgreementAgreement applicable to holders that have not properly demanded appraisal rights. The Company shall serve give HighCape prompt written notice (but and in any event within 48 hourstwo Business Days) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any Stock, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent HighCape shall have the right to participate in and and, following the Effective Time, direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedHighCape, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL, or agree or commit to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in any provision of this Agreement to the contrary, shares (“Dissenting Shares”) to the extent that holders of Company Common Stock Shares are entitled to appraisal rights under Section 262 of the DGCL, Shares issued and outstanding immediately prior to the Effective Time that are held by any with respect to which the holder who is entitled thereof has properly exercised and perfected the right to demand dissent from the Merger and properly demands appraisal to be paid fair value in accordance with Section 262 of such Dissenting Shares pursuant tothe DGCL and as to which, and who complies in all respects withas of the Effective Time, the provisions of holder thereof has not failed to timely perfect or shall have not effectively withdrawn or lost dissenters' rights under Section 262 of the DGCL (“Section 262”) the "Dissenting Shares"), shall not be converted into or represent a right to receive the Merger Consideration into which Shares are converted pursuant to Section 1.3(b) hereof, but the holder thereof shall be entitled only to such rights as are granted by the DGCL. Notwithstanding the immediately preceding sentence, if any holder of Shares who demands dissenters' rights with respect to its Shares under the DGCL effectively withdraws or loses (through failure to perfect or otherwise) its dissenters' rights, then as of the Effective Time or the occurrence of such event, whichever later occurs, such holder's Shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receive the Merger Consideration as provided in Section 2.1(a1.3(b) of this Agreementhereof, but instead such holder shall be entitled to payment without interest thereon, upon surrender of the fair value of Certificate or Certificates formerly representing such Shares, and such Shares shall no longer be Dissenting Shares in accordance with the provisions of Section 262Shares. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares rights provided in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease of Delaware Law and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in this Section 2.1(a)(i) of this Agreement1.6. The Company shall serve give Parent (i) prompt written notice (but in any event within 48 hours) to Parent of any demands notice of intent to demand fair value for appraisal of any shares of Company Common Stock and any Shares, withdrawals of such demandsnotices, and Parent shall have any other instruments served pursuant to the right DGCL and received by the Company, and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for fair value of Shares under the DGCL. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, or settle to any demands for fair value of Shares or offer to settle, settle or settle any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 Sections 5/11.65 and 5/11.70 of the DGCL IBCA (such Shares, “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this Agreement), but and shall instead such holder shall be entitled represent the right to receive payment of the fair value consideration due to the holder of such Dissenting Shares Shares, to the extent available, in accordance with Section 5/11.70 of the provisions IBCA. Upon consummation of Section 262. At the Effective TimeMerger, all Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of the Dissenting Shares shall cease to have any rights with respect thereto, except be issued and outstanding and the right holders thereof shall be entitled to receive such consideration as will be determined under Section 5/11.70 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262IBCA. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses his right to appraisal under Section 262, 5/11.65 of the IBCA or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall to have becomebecome exchangeable solely for, the right to receive the Mixed Merger Consideration as provided in Section 2.1(a)(i2.1(a) of this Agreementand any unpaid dividends or other distributions payable or deliverable in respect thereof pursuant to Section 2.2(c), in each case without interest. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsShares, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle, offer to settle or offer to settlecompromise, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock to the extent required by the DGCL, Shares issued and outstanding immediately prior to the Effective Time that are held by any holder who has not voted in favor of the Merger and who is entitled to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of to Section 262 of the DGCL (“Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead such holder shall be entitled to payment of the fair value of such Dissenting Shares shares in accordance with the provisions of Section 262. At DGCL (and, at the Effective Time, all such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired and shall cease to exist, and each such holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoingDGCL), if any unless and until such holder shall fail have failed to perfect perfect, or otherwise shall waivehave effectively withdrawn or lost, withdraw or lose the such holder’s right to appraisal under Section 262, or a court of competent jurisdiction shall determine that the DGCL. If any such holder is not entitled fails to the relief provided by Section 262perfect or withdraws or loses any such right to appraisal, then the right each such Share of such holder shall thereupon be converted into and become exchangeable only for the right to be paid receive, as of the fair value later of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time intoand the time that such right to appraisal has been irrevocably lost, withdrawn or expired, the Merger Consideration in accordance with Section 3.1(a), and Parent shall have become, promptly deposit (or cause to be deposited) in the right Payment Fund additional cash in an amount sufficient to receive pay the Mixed Merger Consideration as provided in Section 2.1(a)(i) respect of this Agreementsuch Shares that are no longer Dissenting Shares. The Company shall serve prompt written notice (but in any event within 48 hours) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any withdrawals of such demandsShares, and Parent shall have the right to participate in and direct control (provided that, prior to the Acceptance Time, Parent shall not have the right to control such negotiations and proceedings where the interests of the Company or any of its Affiliates are, or would reasonably be expected to be, adverse to those of Parent, Merger Sub or any of their respective Affiliates) all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the The Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrarycontrary and to the extent available under Section 262 of the DGCL, shares (“Dissenting Shares”) any share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time and that are is held by any holder a Common Stockholder who is entitled did not consent to demand or vote (by a valid and properly demands appraisal enforceable proxy or otherwise) in favor of such Dissenting Shares pursuant tothe approval of this Agreement, and who which Common Stockholder complies in with all respects with, of the provisions of Section 262 of the DGCL relevant to the exercise and perfection of dissenters’ rights (such share being a “Section 262Dissenting Share,” and such Common Stockholder being a “Dissenting Stockholder”) ), shall not be converted into the right to receive the Merger Consideration as provided in consideration to which the holder of such share would be entitled pursuant to Section 2.1(a) of this Agreement, 1.02 but instead such holder rather shall be entitled converted into the right to payment receive such consideration as may be determined to be due with respect to such Dissenting Share pursuant to Section 262 of the fair value of DGCL. If any Dissenting Stockholder fails to perfect such stockholder’s dissenters’ rights under the DGCL or effectively withdraws or otherwise loses such rights with respect to any Dissenting Shares, such Dissenting Shares in accordance with the provisions of Section 262. At the Effective Time, all Dissenting Shares shall no longer be outstanding, shall thereupon automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except converted into the right to receive the fair value of such Dissenting Shares consideration referred to in accordance with Section 1.02, pursuant to the provisions of exchange procedures set forth in Section 2621.06. Notwithstanding anything to the foregoingcontrary contained in this Agreement, if any such holder shall fail to perfect the Merger is rescinded or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262abandoned, then the right of such holder a stockholder to be paid the fair value of such holder’s Dissenting Shares under pursuant to Section 262 of the DGCL shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreementcease. The Company shall serve give the Parent (A) prompt written notice (but in any event within 48 hours) to Parent of any demands for appraisal of any shares of Company Common Stock and any received by the Company, withdrawals of such demands, and Parent shall have any other instruments served pursuant to the right DGCL and received by or on behalf of the Company in respect of the Dissenting Shares and (B) a reasonable opportunity to participate in and direct all material communications, negotiations and proceedings with respect to such demandsdemands for appraisal under the DGCL in respect of the Dissenting Shares. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect toto any demands for appraisal, or settle or offer to settle, settle any such demandsdemands for payment, or agree to do any in respect of the foregoingDissenting Shares.

Dissenting Shares. Notwithstanding anything in this Agreement Section 3.1(b), to the contraryextent that holders thereof are entitled to appraisal rights under Section 262 of the DGCL, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are and held by any a holder who is entitled to has properly exercised and perfected his or her demand and properly demands for appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of rights under Section 262 of the DGCL (the “Section 262Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but instead the holders of such holder Dissenting Shares shall be entitled to payment receive such consideration as shall be determined pursuant to Section 262 of the fair value of such Dissenting Shares in accordance with the provisions of Section 262. At the Effective TimeDGCL; provided, all Dissenting Shares shall no longer be outstandinghowever, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, that if any such holder shall fail have failed to perfect or otherwise shall waive, withdraw have effectively withdrawn or lose the lost his or her right to appraisal and payment under Section 262the DGCL, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262262 of the DGCL, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shares of Company Common Stock shall cease and such Dissenting Shares shall thereupon be deemed to be Mixed Consideration Electing Shares that have been converted at as of the Effective Time into, and shall have become, into the right to receive the Mixed Merger Consideration, without any interest thereon, and such shares shall not be deemed to be Dissenting Shares. Any payments required to be made with respect to the Dissenting Shares shall be made by Parent (and not the Company or Acquisition Sub), and the Total Common Merger Consideration shall be reduced, on a dollar for dollar basis, as provided in if the holder of such Dissenting Shares had not been a stockholder on the Merger Closing Date. Any portion of the Total Common Merger Consideration made available to the Paying Agent pursuant to Section 2.1(a)(i) of this Agreement3.2 to pay for Dissenting Shares will be returned to Parent upon demand. The Company shall serve give Parent (a) prompt written notice (but in any event within 48 hours) to Parent of any written demands for appraisal or payment of the fair value of any shares of Company Common Stock and any or withdrawals of such demands, demands and Parent shall have (b) the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal under Section 262 of the DGCL. Prior to the Effective Time, the Company shall will not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, any shares (“Dissenting Shares”) of Company Common Stock issued and that are outstanding immediately prior to the Effective Time and that are held by any holder shareholders of the Company who is shall be entitled to dissent and appraisal rights under Article 13 of the North Carolina Corporation Law ("DISSENTING SHAREHOLDERS"), who shall give notice of their intent to demand and properly demands appraisal payment for their shares in accordance with Article 13 of such Dissenting Shares pursuant tothe North Carolina Corporation Law if the Share Exchange is effectuated, and who complies in all respects withshall have preserved such shareholder's right to receive payment for such shares by taking those actions required by such Article 13 within the time periods stipulated therein (collectively, the provisions of Section 262 of the DGCL (“Section 262”) "DISSENTING SHARES"), shall not be converted into exchanged for or represent the right to receive the Merger Consideration as provided in Section 2.1(a) of this AgreementShare Exchange Consideration, but instead such holder shall be cancelled as of the Effective Time and the Dissenting Shareholders shall be entitled to payment of receive the fair value of such Dissenting Shares amounts determined in accordance with the provisions of such Article 13. The Company shall pay any cash amounts required to be paid under Article 13 with respect to Dissenting Shares solely with cash out of funds of the Company. No funds shall be supplied for that purpose, directly or indirectly, by Parent, and Parent shall not directly or indirectly reimburse the Company for any payments to dissenters. In the event that at the Effective Time Dissenting Shareholders shall have complied with the provisions of Section 26255-13-21 of the North Carolina Corporation Law but shall not have demanded payment for and deposited their Dissenting Shares in accordance with Section 55-13-23 of the North Carolina Corporation Law (but the time period for doing so shall not have lapsed), then at the Effective Time such shares shall remain issued and outstanding shares of the Company and will be held in escrow by the Company for the benefit of the Company or Parent, as the case may be. At In the event that a Dissenting Shareholder complies with all applicable provisions of Article 13 after the Effective Time, all the Dissenting Shares shall no longer be outstanding, formerly held by such shareholder shall automatically be canceled cancelled and retired payment therefor shall be made by the Company as provided in Article 13. In the event that a Dissenting Shareholder does not comply with the provisions of Article 13, the Dissenting Shares formerly held by such shareholder will be released from escrow and shall cease thereupon transferred to existParent in accordance with Section 2.1(e) above, and each the former holder of Dissenting Shares thereof shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares Share Exchange Consideration in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this Agreementterms hereof. The Company shall serve give Parent prompt written notice (but in any event within 48 hours) to Parent of any demands notice, demand for appraisal payment or other document or instrument received by the Company relating to the exercise of any shares of Company Common Stock and any withdrawals of such demandsdissenters' rights under the North Carolina Corporation Law with respect to the Share Exchange, and the Parent shall have the right right, for itself and the Company, to participate in and direct all negotiations negotiations, actions and proceedings with respect to the exercise of such demandsdissenters' rights. Prior to the Effective Time, the The Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with in respect to, of any demand for payment for Dissenting Shares or settle or offer to settle, settle any such demands, or agree to do any of the foregoingdemand for payment.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are held and owned by any a holder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such Shares, “Section 262Dissenting Shares”) shall not be converted into the right to receive the Per Share Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, (a) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (b) the holders of Dissenting Shares shall cease be entitled only to have any such rights with respect thereto, except as may be granted to them under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such holder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Consideration as provided Per Share Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law in accordance with Section 2.1(a)(i) of this Agreement1.8(g). The Company shall serve give Parent prompt written notice (but and in any event within 48 hoursone Business Day) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any Shares, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and direct all negotiations and proceedings Proceedings with respect to such demands. Prior to the Effective TimeTime (unless required by applicable Law), the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal, or agree or commit to do any of the foregoing. Any portion of the aggregate Per Share Merger Consideration made available to the Paying Agent to pay for Shares that have become Dissenting Shares shall be returned to Parent upon demand.

Dissenting Shares. Notwithstanding anything (i) If, in this Agreement connection with the Merger, any holders of Company Capital Stock shall have demanded and perfected their appraisal rights with respect to the contrary, such shares (the “Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to in accordance with the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal DGCL, none of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of Section 262 shall be converted into a right to receive that portion of the DGCL (“Section 262”Merger Consideration payable to the holder of such Dissenting Shares as provided in Sections 2.6(a) through and including 2.6(f), as applicable, but shall not instead be converted into the right to receive the Merger Consideration such consideration as provided in Section 2.1(a) of this Agreement, but instead such holder shall may be entitled determined to payment of the fair value of be due with respect to such Dissenting Shares in accordance with pursuant to the provisions of Section 262DGCL. At After the Effective Time, all the Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect theretothereto except, except subject to the following sentence, the right to receive the fair value of such Dissenting Shares in accordance with pursuant to the provisions DGCL. In the event that any holder of Section 262. Notwithstanding the foregoing, if any such holder shall fail Company Capital Stock fails to make an effective demand for payment or fails to perfect its appraisal rights as to its shares of Company Capital Stock or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such any Dissenting Shares shall otherwise lose their status as Dissenting Shares, then any such shares shall immediately be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, into the right to receive the Mixed Consideration consideration issuable pursuant to Sections 2.6(a) through and including 2.6(f), as provided applicable, in respect of such shares as if such shares had never been Dissenting Shares, and Buyer shall issue and deliver, if it has not already done so, to the Exchange Agent, at (or as promptly as reasonably practicable after) the applicable time or times specified in Section 2.1(a)(i2.8, following the satisfaction of the applicable conditions set forth in Section 2.8, the portion of the Merger Consideration to which such holder would have been entitled under Sections 2.6(a) through and including 2.6(f), as applicable with respect to such shares (subject to the provisions of this AgreementSections 2.6 and 2.8). The Company shall serve give Buyer prompt written notice (but and in any no event within 48 hoursmore than five (5) to Parent Business Days) of any demands demand received by the Company for appraisal of any shares Company Capital Stock or notice of exercise of a holder’s of Company Common Capital Stock and any withdrawals of such demands, and Parent shall have appraisal rights in accordance with the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoingDGCL.

Dissenting Shares. Notwithstanding anything If, in connection with the Merger, holders of Company Capital Stock are entitled to appraisal rights pursuant to Delaware Law, any Dissenting Shares shall not be converted into a right to receive shares of Acquiror Common Stock and cash as provided in this Agreement to the contraryArticle 2, shares (“Dissenting Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of such Dissenting Shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”) but shall not be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to Delaware Law. Each holder of Dissenting Shares who, pursuant to the Merger Consideration as provided in Section 2.1(a) provisions of this AgreementDelaware Law, but instead such holder shall be becomes entitled to payment of the fair value of such Dissenting Shares shares shall receive payment therefor in accordance with Delaware Law (but only after the provisions value therefor shall have been agreed upon or finally determined pursuant to Delaware Law). In the event that any Company Stockholder fails to make an effective demand for payment or fails to perfect its appraisal rights as to its shares of Section 262. At the Effective Time, all Company Capital Stock or any Dissenting Shares shall no longer otherwise lose their status as Dissenting Shares, then any such shares shall immediately be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except converted into the right to receive the fair value consideration issuable pursuant to Article 2 and Article 3 in respect of such shares as if such shares had never been Dissenting Shares Shares, and Acquiror shall issue and deliver to the holder thereof, at (or as promptly as reasonably practicable after) the applicable time or times specified in accordance Section 2.6, following the satisfaction of the applicable conditions set forth in Section 2.6, the cash, without interest thereon, to which such Company Stockholder would have been entitled under Section 2.4(a), 2.4(b) and 2.4(c) with respect to such shares, subject to the provisions of Section 262. Notwithstanding 2.4(j) (regarding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, or a court withholding of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at the Effective Time into, and shall have become, the right to receive the Mixed Consideration as provided in Section 2.1(a)(i) of this AgreementEscrow Amounts). The Company shall serve give Acquiror prompt written notice (but and in any no event within 48 hoursmore than two business days) to Parent of any demands demand received by the Company for appraisal of any shares Company Capital Stock or notice of exercise of a Company Common Stock and any withdrawals of such demandsStockholder’s appraisal rights, and Parent Acquiror shall have the right to participate in and direct control all negotiations and proceedings with respect to any such demands. Prior to the Effective Timedemand, the Company but shall not, not settle any such demand without the Representative’s prior written consent of Parent (consent, which consent shall not be unreasonably conditionedwithheld. The Company agrees that, withheld except with Acquiror’s prior written consent, it shall not voluntarily make any payment or delayed), voluntarily offer to make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoingdemand for appraisal.

Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares (“Dissenting Shares”) of Company Common Stock issued and Shares outstanding immediately prior to the Effective Time that are held and owned by any a holder who is entitled to demand and has properly demands demanded appraisal of for such Dissenting Shares pursuant toin accordance with, and who complies in all respects with, the provisions of Section 262 of the DGCL (such Shares, “Section 262Dissenting Shares”) shall not be converted into the right to receive the Per Share Merger Consideration as provided in Section 2.1(a) of this AgreementConsideration, but and shall instead such holder shall be entitled represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the provisions extent provided by Section 262 of Section 262the DGCL. At the Effective Time, (a) all Dissenting Shares shall no longer be outstandingcancelled, shall automatically be canceled extinguished and retired and shall cease to exist, exist and each holder (b) the holders of Dissenting Shares shall cease be entitled only to have any such rights with respect thereto, except as may be granted to them under the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262DGCL. Notwithstanding the foregoing, if If any such holder shall fail fails to perfect or otherwise shall waivewaives, withdraw withdraws or lose the loses such holder’s right to appraisal under Section 262, 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262other applicable Law, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Section 262 shall cease and such Dissenting Shares shall be deemed to be Mixed Consideration Electing Shares that have been converted at converted, as of the Effective Time intoTime, into and shall have become, be exchangeable solely for the right to receive the Mixed Consideration as provided Per Share Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law in accordance with Section 2.1(a)(i) of this Agreement1.8(g). The Company shall serve give Parent prompt written notice (but and in any event within 48 hoursone Business Day) to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock and any Shares, attempted withdrawals of such demandsdemands and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate Table of Contents in and direct all negotiations and proceedings Proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without except with the prior written consent of Parent (which consent shall not be unreasonably conditionedParent, withheld or delayed), voluntarily make any payment with respect to, or settle or compromise or offer to settlesettle or compromise, any such demandsdemands or waive any failure to timely deliver a written demand for appraisal or otherwise comply with the provisions under Section 262 of the DGCL, or agree or commit to do any of the foregoing. Any portion of the aggregate Per Share Merger Consideration made available to the Paying Agent to pay for Shares that have become Dissenting Shares shall be returned to Parent upon demand.