Common use of Dissenting Holders Clause in Contracts

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, who has not voted in favor of the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to consideration for Company Stock set forth in Section 2.2(a), and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 the consideration for such shares set forth in Section 2.2(a), without interest, less the Aggregate Allocable Portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, upon surrender of the certificate representing such shares. (c) Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) for each such Dissenting Share (such amount, unless determined in a final, non- appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IX.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock issued and outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder who has not voted in favor of of, or provided written consent to, the Agreement and the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive the consideration for Company Stock set forth in Section 2.2(a3.1(b)(i), and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a3.2(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 certificate representing such shares in accordance with Section 3.7, the consideration for such shares set forth in Section 2.2(a3.1(b)(i), without interest, less subject to the Aggregate Allocable Portion applicable portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of Amount and the Disclosure Schedule, upon surrender of the certificate representing Representative Fund with respect to such shares. (c) The Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a3.1(b)(i) for each such Dissenting Share (such amount, unless determined in a final, non- appealable non‑appealable judgment of a court, being subject to the written approval of the Stockholders’ Stockholder Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and or the Surviving Corporation, as the case may be, shall shall, without limiting any other rights, be entitled to recover indemnification for such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided set forth in Article IXSECTION 15 hereof.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time that are eligible under the DGCL to exercise appraisal or dissenters’ rights and are held by a holder, if any, holder who (a) has not voted in favor of this Agreement and the Merger or consented thereto in writing and who Merger, (b) has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and (c) has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive such consideration for Company Stock set forth in Section 2.2(a2.1(a)(i), and the holder or holders of but rather such shares shall be entitled only converted into the right to receive such rights consideration as may be granted determined to be due with respect to such holder or holders in Section 262 of Dissenting Shares pursuant to the DGCL. (b) Notwithstanding the provisions of Section 2.3(a2.2(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, DGCL 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 the consideration for such shares set forth in Section 2.2(a2.1(a)(i), without interest, less the Aggregate Allocable Portion withholdable portion of the Escrow Amount, Amount with respect to such shares (whether or not actually withheld) as set forth in Section 2.2(a)(iiiSections 2.1(a) of the Disclosure Scheduleand 2.6, upon surrender of the certificate representing such sharesDissenting Shares. (c) The Company shall (i) comply with the requirements requirement of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand for appraisal or payment of the fair value of any shares received by the Company pursuant to Section 262 of the DGCL, DGCL and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount consideration paid by Parent, the Company or the Surviving Corporation to any Person with respect to any Excess Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount consideration that would otherwise be payable pursuant to Section 2.2(a) 2 for each such Excess Dissenting Share (such amountconsideration, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, DGCL with respect to any Excess Dissenting Shares shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall shall, without limiting any other rights, be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXIndemnification Funds.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock issued and outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder who has not voted in favor of of, or provided written consent to, the Agreement and the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive the consideration for Company Stock set forth in Section 2.2(a), 3.1(b) and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a3.2(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 certificate representing such shares in accordance with Section 3.7, the consideration for such shares set forth in Section 2.2(a3.1(b), without interest, less the Aggregate Allocable Portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, upon surrender of the certificate representing such shares. (c) The Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) for each such Dissenting Share (such amount, unless determined in a final, non- appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval consent shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by Company, Parent ) to such payment or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXsettlement offer.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, who has not voted in favor of the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to consideration for Company Stock set forth in Section 2.2(a), and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 the consideration for such shares set forth in Section 2.2(a), without interest, less the Aggregate Allocable Portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, upon surrender of the certificate representing such shares. (c) Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall be entitled to recover such Damages solely from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXtherefor.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time that are eligible under the DGCL to exercise appraisal or dissenters’ rights and are held by a holder, if any, holder who (a) has not voted in favor of or provided written consent with respect to this Agreement and the Merger or consented thereto in writing and who Merger, (b) has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and (c) has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “"Dissenting Shares”") shall not be converted into or represent the right to receive such consideration for Company Stock set forth in Section 2.2(a2.1(a), and the holder or holders of but rather such shares shall be entitled only converted into the right to receive such rights consideration as may be granted determined to be due with respect to such holder or holders in Section 262 of Dissenting Shares pursuant to the DGCL. (b) . Notwithstanding the provisions of Section 2.3(a2.2(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s 's appraisal rights and dissenters’ rights under Section 262 of the DGCL, DGCL then, as of the later of the Effective Time and the occurrence of such event, such holder’s 's shares shall automatically be converted into and represent only the right to receive the consideration for such shares set forth in Section 2.2(a2.1(a), without interest, less the Aggregate Allocable Portion withholdable portion of the Escrow Amount, Amount and Representative Fund Amount with respect to such shares (whether or not actually withheld) as set forth in Section 2.2(a)(iiiSections 2.1(a) of the Disclosure Scheduleand 2.5, upon surrender of the certificate representing such shares. (c) Dissenting Shares. The Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand for appraisal or payment of the fair value of any shares received by the Company pursuant to Section 262 of the DGCL, DGCL and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) . Any amount consideration paid by Parent, the Company or the Surviving Corporation to any Person with respect to any Excess Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount consideration that would otherwise be payable pursuant to Section 2.2(a2.1(a) for each such Excess Dissenting Share ("Excess Dissenting Share Consideration") (such amountconsideration, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, DGCL shall constitute “"Damages” " for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall shall, without limiting any other rights, be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXShares.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time eligible under the DGCL or CGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder who has not voted in favor of this Agreement and the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL or Chapter 13 of the CGCL, as applicable, and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to consideration for Company Stock set forth in Section 2.2(a2.2(a)(i), and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCLDGCL or Chapter 13 of the CGCL, as applicable. (b) Notwithstanding the provisions of Section 2.3(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCLDGCL or Chapter 13 of the CGCL, as applicable, 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 the consideration for such shares set forth in Section 2.2(a2.2(a)(i), without interest, less the Aggregate Allocable Portion withholdable portion of the Escrow Amount, Amount with respect to such shares (whether or not actually withheld) as set forth in Section 2.2(a)(iiiSections 2.2(a) of the Disclosure Scheduleand 2.7, upon surrender of the certificate representing such shares. (c) The Company shall (i) comply with the requirements of Section 262 of the DGCLDGCL and Chapter 13 of the CGCL, as applicable, (ii) give Parent prompt notice of any written demand for appraisal or payment of the fair value of any shares received by the Company pursuant to Section 262 of the DGCLDGCL or Chapter 13 of the CGCL, as applicable, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL or CGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL or Chapter 13 of the CGCL, as applicable, in excess of the amount that would otherwise be payable pursuant to Section 2.2(a2.2(a)(i) for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCLDGCL or Chapter 13 of the CGCL, as applicable, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall shall, without limiting any other rights, be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXFunds.

Dissenting Holders. (a) Notwithstanding anything any provision contained in this Agreement to the contrary, any shares of Company Stock all Shares issued and outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder (a “Dissenting Holder”) who has not voted in favor of the Merger adoption of this Agreement or consented thereto in writing and who has properly exercised and perfected appraisal or dissenters’ rights for of such shares Shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost (such appraisal or dissenters’ rights (collectively, Shares being referred to collectively as the “Dissenting Shares”” until such time as such Dissenting Holder fails to perfect or otherwise loses such Dissenting Holder’s appraisal rights under the DGCL with respect to such Shares) shall not be converted into or represent the a right to consideration for Company Stock set forth receive the Per Common Share Merger Consideration, the Series A Preference Amount, and/or the Series C Preference Amount as the case may be, payable in Section 2.2(a), and the holder or holders respect of such shares shall Shares pursuant to Section 2.7(a) hereof, but instead shall, from and after the Effective Time, be entitled to only to such rights as may be are granted to such holder or holders in by Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a); provided, if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCLhowever, thenthat if, as of the later of after the Effective Time and the occurrence of such eventTime, such holderDissenting Holder fails to perfect, withdraws or loses such Dissenting Holder’s shares shall automatically be converted into and represent only the right to receive the consideration for such shares set forth in Section 2.2(a), without interest, less the Aggregate Allocable Portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, upon surrender of the certificate representing such shares. (c) Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by Company appraisal pursuant to Section 262 of the DGCL, and or if a court of competent jurisdiction shall determine that such Dissenting Holder is not entitled to the relief provided by Section 262 of the DGCL, such Dissenting Shares shall be treated as if they had been converted as of the Effective Time into the right to receive the consideration payable in respect of such Shares pursuant to Section 2.7(a), without interest thereon. The Company shall give Parent (i) prompt notice of any demands received by the Company for appraisal of Shares, withdrawals of such demands, and provide copies of any documents or other instruments served pursuant to the DGCL and received by the Company prior to the Effective Time and (iiiii) give Parent the opportunity reasonable updates with respect to participate in all negotiations and proceedings with respect to any such demands. The Company shall not not, except with the prior written consent of Parent, make any payment or settlement offer prior to the Effective Time with respect to any demands for appraisal, or offer to settle, or settle any such demand unless Parent shall have consented in writing to such payment or settlement offerdemands. (d) Any amount paid by Parent, Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) for each such Dissenting Share (such amount, unless determined in a final, non- appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IX.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock issued and outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder who has not voted in favor of the Agreement and the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL or, if Section 2115 of the California Corporations Code applies to the Company, Chapter 13 of the California Corporations Code, and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive the consideration for Company Stock set forth in Section 2.2(a3.1(b)(i), and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCLDGCL or, if applicable, Chapter 13 of the California Corporations Code. (b) Notwithstanding the provisions of Section 2.3(a3.2(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCLDGCL or, if applicable, Chapter 13 of the California Corporations Code, 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 certificate representing such shares in accordance with Section 3.5, the consideration for such shares set forth in Section 2.2(a3.1(b)(i), without interest, less the Aggregate Allocable Portion applicable portion of the Escrow Amount, Amount with respect to such shares (as set forth in Section 2.2(a)(iii) of the Disclosure Securityholder Schedule, upon surrender of the certificate representing such shares). (c) The Company shall (i) comply with the requirements of Section 262 of the DGCLDGCL and, if applicable, Chapter 13 of the California Corporations Code, (ii) give Parent prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCLDGCL or, if applicable, Chapter 13 of the California Corporations Code, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL or, if applicable, the California Corporations Code and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a3.1(b)(i) for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Stockholder Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCLDGCL and, if applicable, Chapter 13 of the California Corporations Code, shall constitute “Damages” for purposes of this Agreement, and Parent and or the Surviving Corporation, as the case may be, shall shall, without limiting any other rights, be entitled to recover indemnification for such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided set forth in Article IXSECTION 15 hereof.

Dissenting Holders. If holders of Company Common Stock are entitled to dissent from the Merger and demand appraisal of any such Company Common Stock under applicable law (a) Notwithstanding anything in this Agreement each person electing to the contraryexercise such rights, a “Dissenting Holder”), any shares of Company Common Stock outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, who Dissenting Holder as to which appraisal has not voted in favor of the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights been so demanded (collectively, the “Dissenting Excluded Shares”) shall not be converted into or represent the right to consideration for Company Stock set forth as described in Section 2.2(a)1.5, but shall from and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, then, as of the later of after 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 such consideration as may be determined to be due such Dissenting Holder pursuant to applicable law; provided however, that each share of Company Common Stock held by a Dissenting Holder who shall, after the consideration Effective Time, withdraw its demand for appraisal or lose its rights of appraisal with respect to such shares set forth of Company Common Stock, in Section 2.2(a)either case pursuant to applicable law, without interestshall not be deemed an Excluded Share, less the Aggregate Allocable Portion but shall be deemed to be converted, as of the Escrow AmountEffective Time, in to the right to receive Parent Common Stock or a cash payment as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, upon surrender of the certificate representing such shares. (c) Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands1.5. Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) for each such Dissenting Share (such amount, unless determined in a final, non- appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by Company, If Parent or the Surviving Corporation in connection with makes payments to holders of Excluded Shares and (i) the exercise sum of all rights under Section 262 (A) the aggregate amount of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent such payments plus (B) Parent’s and the Surviving Corporation’s costs, as fees and expenses (including but not limited to reasonable legal, appraisal and expert fees and expenses) in any manner relating to Excluded Shares and/or Dissenting Holders, exceeds (ii) the case may beamount which would otherwise have been paid pursuant to Section 1.5 if such shares had not been Excluded Shares (such excess being “Excess Payments”), then the aggregate amount of such Excess Payments shall be entitled to recover such considered Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXfor purposes of Section 9.2(a)(v) of this Agreement.

Dissenting Holders. (a) 2.6.1 Notwithstanding anything in this Agreement to the contrary, any shares of Company Capital Stock outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, who has not voted in favor of the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall will not be converted into or represent the right to receive the consideration for Company Stock set forth described in Section 2.2(a2.5.3(a), and the holder or holders of such shares shall will be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) 2.6.2 Notwithstanding the provisions of Section 2.3(a)2.6.1, if any holder of Dissenting Shares shall effectively withdraw withdraws or lose loses (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares shall will automatically be converted into and represent only the right to receive the consideration for such shares set forth described in Section 2.2(a2.5.3(a), payable in cash to the holder thereof without interestinterest and subject to applicable Tax withholding, less the Aggregate Allocable Portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, upon following surrender of the certificate representing such shares. * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. (c) 2.6.3 The Company shall will (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent the Buyer prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the Buyer the opportunity to participate in all negotiations and proceedings with respect to any such demands. The Company shall will not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have the Buyer has consented in writing to such payment or settlement offer. (d) 2.6.4 Any amount paid by Parentthe Buyer, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) 2.5 for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall will not be unreasonably withheld, conditioned or delayed), and all interest, costs, reasonable expenses and fees as incurred by the Company, Parent the Buyer or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall will constitute “Damages” Losses for purposes of this Agreement, and Parent and the Buyer or the Surviving Corporation, as the case may be, shall will be entitled to recover such Damages Losses solely from the Escrow Funds Amount to the extent available therefor and, thereafter, as provided in Article IXavailable.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, who has not voted in favor of the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) Shares shall not be converted into or represent the right to consideration for Company Stock set forth in Section 2.2(a2.2(a)(i), and the holder or holders of but rather such shares shall be entitled only converted into the right to receive such rights consideration for Company Stock as may be granted determined to be due with respect to such holder or holders in Section 262 of Dissenting Shares pursuant to the DGCL. (b) Notwithstanding the provisions of Section 2.3(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 the consideration for such shares set forth in Section 2.2(a2.2(a)(i), without interest, less the Aggregate Allocable Portion withholdable portion of the Escrow Amount, Amount with respect to such shares (whether or not actually withheld) as set forth in Section 2.2(a)(iiiSections 2.2(a) of the Disclosure Scheduleand 2.7, upon surrender of the certificate representing such shares. (c) The Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand for appraisal or payment of the fair value of any shares received by the Company pursuant to Section 262 of the DGCL, DGCL and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a2.2(a)(i) for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, DGCL shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall shall, without limiting any other rights, be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXFunds.

Dissenting Holders. (a) 2.6.1. Notwithstanding anything in this Agreement to the contrary, any shares of Company Capital Stock outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, who has not voted in favor of the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall will not be converted into or represent the right to consideration for Company Stock set forth in Section 2.2(a)receive a portion of the Merger Consideration, and the holder or holders of such shares shall will be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) 2.6.2. Notwithstanding the provisions of Section 2.3(a)2.6.1, if any holder of Dissenting Shares shall effectively withdraw withdraws or lose loses (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares shall will automatically be converted into and represent only the right to receive the consideration for such shares set forth in Section 2.2(a), without interest, less the Aggregate Allocable Portion a portion of the Escrow AmountMerger Consideration pursuant to Section 2.5.3, as set forth payable in Section 2.2(a)(iii) of cash to the Disclosure Scheduleholder thereof without interest and subject to applicable Tax withholding, upon surrender of the certificate representing such shares.. 74163855_1 (c) 2.6.3. The Company shall will (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent Buyer prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent Buyer the opportunity to participate in all negotiations and proceedings with respect to any such demands. The Company shall will not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have Buyer has consented in writing to such payment or settlement offer. (d) 2.6.4. Any amount paid by ParentBuyer, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) 2.5 for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall will not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent Buyer or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall will constitute “Damages” Losses for purposes of this Agreement, and Parent and Buyer or the Surviving Corporation, as the case may be, shall will be entitled to recover such Damages Losses from the Escrow Funds Amount to the extent available therefor and, thereafter, as provided in Article IXtherefor.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time that are eligible under the DGCL to exercise appraisal or dissenters’ rights and are held by a holder, if any, holder who (a) has not voted in favor of or provided written consent with respect to this Agreement and the Merger or consented thereto in writing and who Merger, (b) has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and (c) has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive such consideration for Company Stock set forth in Section 2.2(a2.1(a), and the holder or holders of but rather such shares shall be entitled only converted into the right to receive such rights consideration as may be granted determined to be due with respect to such holder or holders in Section 262 of Dissenting Shares pursuant to the DGCL. (b) Notwithstanding the provisions of Section 2.3(a2.2(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, DGCL 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 the consideration for such shares set forth in Section 2.2(a2.1(a), without interest, less the Aggregate Allocable Portion withholdable portion of the Escrow Amount, Amount and Representative Fund Amount with respect to such shares (whether or not actually withheld) as set forth in Section 2.2(a)(iiiSections 2.1(a) of the Disclosure Scheduleand 2.5, upon surrender of the certificate representing such sharesDissenting Shares. (c) The Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand for appraisal or payment of the fair value of any shares received by the Company pursuant to Section 262 of the DGCL, DGCL and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount consideration paid by Parent, the Company or the Surviving Corporation to any Person with respect to any Excess Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount consideration that would otherwise be payable pursuant to Section 2.2(a2.1(a) for each such Excess Dissenting Share (“Excess Dissenting Share Consideration”) (such amountconsideration, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, DGCL shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall shall, without limiting any other rights, be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IXShares.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock issued and outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder who has not voted in favor of of, or provided written consent to, the Agreement and the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive the consideration for Company Stock set forth in Section 2.2(a)2.02, and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a2.06(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 certificate representing such shares in accordance with Section 2.03, the consideration for such shares set forth in Section 2.2(a)2.02, without interest, less subject to the Aggregate Allocable Portion applicable portion of the Indemnification Escrow Amount, as set forth in Section 2.2(a)(iii) of Amount and the Disclosure Schedule, upon surrender of the certificate representing Representative Holdback Amount with respect to such shares. (c) The Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offeroffer (such consent not to be unreasonably withheld, delayed or conditioned). (d) Any amount paid by Parent, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) 2.02 for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, indemnification as provided Losses as set forth in Article IXXI hereof as an inaccuracy in Section 5.04.

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock issued and outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder who has not voted in favor of of, or provided written consent to (including by proxy), the Agreement and the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive the consideration for Company Stock set forth in Section 2.2(a)2.5, and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a2.9(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 the consideration for such shares set forth in Section 2.2(a), without interest, less the Aggregate Allocable Portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of the Disclosure Schedulereceive, upon surrender of the certificate representing such sharesshares in accordance with Section 2.8, the consideration, if any, for such shares set forth in Section 2.5, without interest, in accordance with the terms and conditions provided in this Agreement. (c) The Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in control all negotiations and proceedings with respect to any such demands. Prior to the Effective Time, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offeroffer (such consent not to be unreasonably withheld, delayed or conditioned). (d) Any amount paid by Parent, the Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) 2.5 for each such Dissenting Share (such amount, unless determined in a final, non- non-appealable order or judgment from a court of a courtcompetent jurisdiction, being subject to the prior written approval of the Stockholders’ Stockholder Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, interest and reasonable out-of-pocket costs, expenses and fees as incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, indemnification as provided Losses as set forth in Article IXVIII hereof as an inaccuracy in Section 3.3(d).

Dissenting Holders. (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock outstanding immediately prior to the Effective Time eligible under the DGCL to exercise appraisal or dissenters’ rights and held by a holder, if any, holder who has not voted in favor of the Agreement and the Merger or consented thereto in writing and who has exercised and perfected appraisal or dissenters’ rights for such shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost such appraisal or dissenters’ rights (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to consideration for Company Stock set forth in Section 2.2(a), and the holder or holders of such shares shall be entitled only to such rights as may be granted to such holder or holders in Section 262 of the DGCL. (b) Notwithstanding the provisions of Section 2.3(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights and dissenters’ rights under Section 262 of the DGCL, 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 the consideration for such shares set forth in Section 2.2(a2.2(a)(i), without interest, less the Aggregate Allocable Portion of the Escrow Amount, as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, upon surrender of the certificate representing such shares. (c) Prior to Effective Time, the Company shall (i) comply with the requirements of Section 262 of the DGCL, (ii) give Parent prompt notice of any written demand received by the Company pursuant to Section 262 of the DGCL, and of withdrawals of such demands, and provide copies of any documents or instruments served pursuant to the DGCL and received by the Company and (iii) give Parent the opportunity to participate in all negotiations and proceedings with respect to any such demands. Prior to the Effective Time of the Merger, the Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand unless Parent shall have consented in writing to such payment or settlement offer. (d) Any amount paid by Parent, Company or the Surviving Corporation to any Person with respect to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the amount that would otherwise be payable pursuant to Section 2.2(a) for each such Dissenting Share (such amount, unless determined in a final, non- appealable judgment of a court, being subject to the written approval of the Stockholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed), and all interest, costs, expenses and fees as incurred by Company, Parent or the Surviving Corporation in connection with the exercise of all rights under Section 262 of the DGCL, shall constitute “Damages” for purposes of this Agreement, and Parent and the Surviving Corporation, as the case may be, shall be entitled to recover such Damages from the Escrow Funds to the extent available therefor and, thereafter, as provided in Article IX.