Common use of Dissenting Company Shares Clause in Contracts

Dissenting Company Shares. Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares of Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”) shall not be exchangeable for the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as applicable, and holders of such shares shall be entitled to receive payment of the appraised value of such Dissenting Company Shares in accordance with the provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such Dissenting Company Shares will thereupon be treated as if they had been converted into and have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. Upon the Company’s receipt of any notice of election to dissent in accordance with the provisions of such Section 262, the Company shall promptly provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, the opportunity to direct and control all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Time. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares of Company Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”) shall will not be exchangeable for the right to receive the Merger Consideration or the Preferred Share Merger Consideration, converted as applicabledescribed in Section 2.5(a)(iii), and holders of such shares shall will be entitled only to receive payment of the appraised value of such Dissenting Company Shares in accordance with the provisions of such rights and consideration as are granted pursuant to Section 262 of the DGCL unless and until such holders fail (without regard to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 the Top-Up, any shares of Common Stock issued upon the exercise of the DGCLTop-Up or any promissory notes issued in consideration for the purchase price of shares of Common Stock purchased pursuant to the Top-Up). IfNotwithstanding the foregoing, if, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses its right to appraisal and payment under the DGCL, the shares of Company Common Stock held by such right, such holder that were Dissenting Company Shares will thereupon be treated as if they had been converted into and have become exchangeable forinto, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. Upon the Company’s receipt of any notice of election intent to dissent demand payment in accordance with the provisions of the DGCL, or any withdrawal of such notice, and any other instruments served pursuant to Section 262262 of the DGCL and received by the Company, the Company shall as promptly as reasonably practicable provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, or instrument. The Company shall give Parent the opportunity to direct and control participate in all negotiations and proceedings with respect to demands for appraisal the exercise of dissenters’ rights under Section 262 of the DGCL so long as Parent does not create obligations for DGCL. The Company, on the Company effective one hand, and Parent, prior to the Effective Time. The Company Closing, on the other hand, shall not, except with the prior written consent of Parentthe other party hereto or pursuant to an Order, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares of Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”) shall will not be exchangeable for the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as applicable, and holders of such shares shall will be entitled to receive payment of the appraised value of such Dissenting Company Shares shares in accordance with the provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such Dissenting Company Shares shares will thereupon be treated as if they had been converted into and have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. Upon the Company’s receipt of any notice of election to dissent in accordance with the provisions of such Section 262, the Company shall as promptly as reasonably practicable provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, the opportunity to direct and control all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Time. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL DGCL, but only to the extent required thereby, shares of Company Common Stock or Series A Convertible Company Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”) shall not be exchangeable for the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as applicable, and holders of such shares shall be entitled to receive payment of the appraised value of such Dissenting Company Shares in accordance with the provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such Dissenting Company Shares will thereupon be treated as if they had been converted into and have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. Upon the Company’s receipt of any notice of election to dissent in accordance with the provisions of such Section 262, the Company shall promptly provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, Parent the opportunity to direct and control all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Time. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares of Company Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”) shall will not be exchangeable for the right to receive the Merger Consideration or the Preferred Share Merger Consideration, converted as applicabledescribed in Section 2.1(a)(ii), and holders of such shares shall will be entitled to receive payment of the appraised value of such Dissenting Company Shares shares determined in accordance with the applicable provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of the DGCL. IfNotwithstanding the foregoing, if, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses its right to appraisal and payment under the DGCL, the shares of Company Common Stock held by such right, such holder that were Dissenting Company Shares will thereupon be treated as if they had been converted into and have become exchangeable forinto, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may beany cash in lieu of fractional shares payable pursuant to Section 2.2(e) and any dividends or other distributions to which such holder is entitled pursuant to Section 2.2(d), without any interest thereon. Upon the Company’s receipt of any notice of election intent to dissent demand payment in accordance with the provisions of the DGCL, or any withdrawal of such notice, and any other instruments served pursuant to Section 262262 of the DGCL and received by the Company, the Company shall as promptly as reasonably practicable provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, or instrument. The Company shall give Parent the opportunity to direct participate in and control all negotiations and proceedings with respect to demands for appraisal the exercise of dissenters’ rights under Section 262 of the DGCL so long as Parent does not create obligations for DGCL. The Company, on the Company effective one hand, and Parent, prior to the Effective Time. The Company Closing, on the other hand, shall not, except with the prior written consent of Parentthe other party hereto or pursuant to a court order, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision Company Shares that have not been voted for adoption of this Agreement and with respect to the contrary, if required by the DGCL but only to the extent required thereby, shares of Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who appraisal shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have been properly exercised appraisal rights with respect thereto demanded in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”) shall not be exchangeable for converted into the right to receive the Merger Consideration at or after the Preferred Share Merger Consideration, as applicable, Effective Time unless and holders until the holder of such shares withdraws such holder’s demand for appraisal (in accordance with Section 262(k) of the DGCL) or becomes ineligible for such appraisal, but rather, the holder of the Dissenting Shares shall be entitled only to receive payment of the appraised fair value of such Dissenting Company Shares in accordance with the provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of the DGCL. IfIf a holder of Dissenting Shares shall withdraw (in accordance with Section 262(k) of the DGCL) the demand for such appraisal or shall become ineligible for such appraisal, after then, as of the Effective TimeTime or the occurrence of such event, any whichever last occurs, each of such holder fails holder’s Dissenting Shares shall cease to perfect or effectively withdraws or loses such right, such be a Dissenting Company Shares will thereupon Share and shall be treated as if they had been converted into and have become exchangeable for, at the Effective Time, represent the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. Upon the Company’s receipt The Company shall give Parent prompt written notice of any notice of election to dissent in accordance with the provisions of such Section 262, demands received by the Company for appraisal of Company Shares and Parent shall promptly provide Parent with a copy of such notice of election have the right to dissent and provide Parent, at Parent’s expense, the opportunity to direct and control participate in all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Timesuch demands. The Company shall notnot make any payments with respect to, except with or compromise or settle any demand for, appraisal without the prior written consent of Parent, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL Part 13 of Chapter 156D of the MBCA but only to the extent required thereby, shares of Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 the provisions of the DGCL MBCA (the “"Dissenting Company Shares”") shall will not be exchangeable for converted into the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as applicable, and holders of such shares shall will be entitled to receive payment of the appraised value of such Dissenting Company Shares shares determined in accordance with the applicable provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of MBCA. Notwithstanding the DGCL. Ifforegoing, if, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses its right to appraisal and payment under the MBCA, the shares of Common Stock held by such right, such Dissenting Company Shares holder will thereupon be treated as if they had been converted into and have become exchangeable forinto, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. At the Effective Time, all Dissenting Company Shares shall only have such rights as are granted by Part 13 of Chapter 156D of the MBCA. Upon the Company’s 's receipt of any notice of election intent to dissent demand payment in accordance with the provisions of Part 13 of the MBCA, or any withdrawal of such Section 262notice, the Company shall as promptly as reasonably practicable provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, the opportunity to direct and control all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Timenotice. The Company shall not, except with the prior written consent of ParentParent or pursuant to a valid court order, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL Part 13 of Chapter 156D of the MBCA but only to the extent required thereby, shares of Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 the provisions of the DGCL MBCA (the “Dissenting Company Shares”) shall will not be exchangeable for converted into the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as applicable, and holders of such shares shall will be entitled to receive payment of the appraised value of such Dissenting Company Shares shares determined in accordance with the applicable provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of MBCA. Notwithstanding the DGCL. Ifforegoing, if, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses its right to appraisal and payment under the MBCA, the shares of Common Stock held by such right, such Dissenting Company Shares holder will thereupon be treated as if they had been converted into and have become exchangeable forinto, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. At the Effective Time, all Dissenting Company Shares shall only have such rights as are granted by Part 13 of Chapter 156D of the MBCA. Upon the Company’s receipt of any notice of election intent to dissent demand payment in accordance with the provisions of Part 13 of the MBCA, or any withdrawal of such Section 262notice, the Company shall as promptly as reasonably practicable provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, the opportunity to direct and control all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Timenotice. The Company shall not, except with the prior written consent of ParentParent or pursuant to a valid court order, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.

Dissenting Company Shares. Notwithstanding any provision of anything in this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares each share of Company Common Stock or Series A Convertible Preferred Stock which are that is issued and outstanding immediately prior to the Effective Time and which are that is held by holders a holder who shall have neither voted in favor has validly demanded payment of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto fair value of such holder’s Company shares as determined in accordance with Section 262 of the DGCL Nevada Law (the “Company Dissenting Company Shares”) shall not be converted into or be exchangeable for the right to receive the Merger Consideration or 2.6 shares of Common Stock of the Preferred Share Merger Consideration, as applicable, Surviving Corporation and holders of such shares instead shall be entitled converted into the right to receive payment of from the appraised value of Surviving Corporation with respect to such Company Dissenting Company Shares in accordance with the provisions of such Section 262 of the DGCL Nevada Law, unless and until such holders fail holder shall have failed to perfect or effectively withdraw shall have validly withdrawn such holder’s demand or lose their lost such holder’s rights to appraisal and payment under such Section 262 of the DGCLNevada Law. If, after the Effective Time, If any such holder fails of Company Common Stock shall have failed to perfect or effectively withdraws shall have validly withdrawn such demand or loses lost such right, each share of Company Common Stock of such Dissenting holder shall be treated, at the Surviving Corporation’s sole discretion, as a share of Company Shares will thereupon be treated as if they Common Stock that had been converted into and have become exchangeable for, at as of the Effective Time, Time into the right to receive the Merger Consideration or 2.6 shares of Common Stock of the Preferred Share Merger Consideration, as the case may be, without any interest thereon. Upon the Company’s receipt of any notice of election to dissent Surviving Corporation in accordance with the provisions of such Section 262, the 2.6(c). Company shall promptly provide Parent with a copy give prompt notice to TheraBiogen of such notice any demands received by Company for appraisal of election shares of Company Common Stock, and TheraBiogen shall have the right to dissent and provide Parent, at Parent’s expense, the opportunity to direct and control participate in all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Timesuch demands. The Company shall not, except with the prior written consent of ParentTheraBiogen, voluntarily make any payment with respect to any such election to dissent to, or settle or offer to settle or settle settle, any such election to dissentdemands.

Dissenting Company Shares. Notwithstanding any provision of this Agreement Agreement, including Section 2.2 hereof, to the contrary, if required by the DGCL but only to the extent required thereby, shares of Common Stock or Series A Convertible Preferred Stock which are issued and outstanding immediately prior to the Effective Time and which are held by holders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”) shall will not be exchangeable for converted into the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as applicable, and holders of such shares shall will be entitled to receive payment of the appraised value of such Dissenting Company Shares shares determined in accordance with the applicable provisions of such Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under such Section 262 of the DGCL. IfNotwithstanding the foregoing, if, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such rightits right to appraisal and payment under the DGCL, such the Dissenting Company Shares held by such holder will thereupon be treated as if they had been converted into and have become exchangeable forinto, at the Effective Time, the right to receive the Merger Consideration or the Preferred Share Merger Consideration, as the case may be, without any interest thereon. Upon the Company’s receipt of any notice of election intent to dissent demand payment in accordance with the provisions of the DGCL, or any withdrawal of such Section 262notice, the Company shall as promptly as reasonably practicable provide Parent with a copy of such notice of election to dissent and provide Parent, at Parent’s expense, the opportunity to direct and control all negotiations and proceedings with respect to demands for appraisal under the DGCL so long as Parent does not create obligations for the Company effective prior to the Effective Timenotice. The Company shall not, except with the prior written consent of ParentParent or pursuant to a valid court order, voluntarily make any payment with respect to any such election to dissent or offer to settle or settle any such election to dissent.