Common use of Dissenting Shares Clause in Contracts

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant Shares of Company Common Stock issued and outstanding immediately prior to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share Effective Time that are entitled to rights of appraisal in the event of held by any record holder (a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be “Dissenting Stockholder”) who is entitled to demand and properly demands appraisal of such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL are referred to in this Agreement as the “Dissenting Shares.” Dissenting Shares shall not be converted into or represent the right to receive any Merger Consideration (each, a “Xxxxx Dissenting Share”along with any cash in lieu of fractional Parent ADSs as provided in Section 2.2(e) and any unpaid dividends and distributions with respect to such Parent ADSs as provided in Section 2.2(c), if any, such holder ) and the holders thereof shall be entitled to payment, solely from the Surviving Company, only such rights as are granted by Section 262 of the fair value of DGCL unless and until the Xxxxx Dissenting Stockholder holding particular Dissenting Shares has failed to perfect his, her or its right to appraisal under the extent permitted by DGCL in respect of such shares or has effectively waived, withdrawn or lost his, her or its demand for appraisal in respect of such shares. If such Dissenting Stockholder has so failed to perfect or has waived, withdrawn or lost his, her or its rights to appraisal in respect of such shares, then such Dissenting Shares shall cease to be Dissenting Shares and shall thereafter entitle such Dissenting Stockholder to receive the Merger Consideration as provided in accordance Section 2.1(c)(i) in respect of such shares. The Company shall comply with the those provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of DGCL which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed are required to be No Election Shares and converted into and represent only performed by the right Company prior to receive the Cash Election Consideration and/or Effective Time to the Stock election Consideration in accordance with Section 2.3(c)reasonable satisfaction of Parent. Xxxxx The Company shall give Mercury Parent (A) prompt notice of any written demands for appraisal under the DGCL actually received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands the Company and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the (B) an opportunity to participate in direct all negotiations and proceedings with respect theretoto demands for appraisal under the DGCL. Xxxxx The Company shall not, without except with the prior written consent of MercuryParent, voluntarily make any payment with respect to, or settle to demands for appraisal under the DGCL or offer to settle, settle or settle any such demands.

Dissenting Shares. Pursuant Notwithstanding the foregoing provisions of this Article III, any shares of Company Stock held by Persons who object to the Xxxxx LLC Agreement, Concrete Merger and comply with the provisions of the DGCL concerning the rights of holders of each Xxxxx Common Share are entitled Company Stock to rights dissent from the Concrete Merger and require appraisal of appraisal in their shares of Company Stock (“Dissenting Shares” and such Persons, “Dissenting Stockholders”) shall not be converted into a right to receive any portion of the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish such holder’s entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares share shall thereupon cease to not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall be deemed treated as if it had been a Common Share or Preferred Share (as applicable) immediately prior to be No Election Shares the Concrete Effective Time and converted converted, as of the Concrete Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(cthis Article III, without any interest thereon (and such holder shall be treated as a Pre-Closing Holder). Xxxxx The Company shall give Mercury provide Newco prompt written notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Sharesshares of Company Stock, withdrawals any withdrawal of any such demands demand and any other instruments served pursuant demand, notice or instrument delivered to the Xxxxx LLC Agreement and Section 262 of Company prior to the Concrete Effective Time pursuant the DGCL that relates to such demand and Newco shall give Mercury have the opportunity to participate in all in, but not control any, negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Without the prior written consent of MercuryNewco (which shall not be unreasonably withheld, conditioned or delayed), the Company shall not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment. From and after the Concrete Effective Time, no stockholder of the Company who has properly exercised and perfected appraisal rights pursuant to Section 262 of the DGCL shall be entitled to vote his or her shares of Company Stock for any purpose or receive payment of dividends or other distributions with respect to his or her shares of Company Stock (except dividends and distributions payable to stockholders of record at a date which is prior to the Concrete Effective Time).

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, each share of Common Stock or Preferred Stock issued and outstanding immediately prior to the Effective Time held by any Stockholder who has not voted in favor of the Merger or consented thereto in writing and has properly exercised its dissenter’s rights under Chapter 13 of the CCC (such shares, the “Dissenting Shares”) shall not be converted into or be exchangeable for the right to receive its portion of the Merger Consideration, but shall be entitled only to such rights with respect to each Xxxxx Common Share such Dissenting Shares as may be granted to which the such holder thereof would be entitled to demand appraisal pursuant to Section 262 Chapter 13 of the DGCLCCC. Each holder of Dissenting Shares who, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with pursuant to the provisions of Section 262 Chapter 13 of the DGCL (eachCCC, a “Xxxxx Dissenting Share”), if any, such holder shall be becomes entitled to payment, solely from the Surviving Company, payment of the fair value of such shares of Common Stock or Preferred Stock shall receive payment therefor (but only after the Xxxxx Dissenting Shares value thereof shall have been agreed upon or finally determined pursuant to the provisions of the CCC), with interest paid thereon only to the extent permitted required by and in accordance with the provisions CCC. If a holder of Section 262 any Dissenting Shares shall become entitled to receive payment of the DGCLfair value for such shares pursuant to the CCC, then Buyer shall make such payment pursuant to the CCC. If, after the Effective Time, any Dissenting Shares shall lose their status as Dissenting Shares, Buyer shall issue and deliver, upon surrender by the holder of the certificate or certificates representing such Securities, the consideration, if any, to which such Stockholder would otherwise be entitled pursuant to Section 2.04 with respect to such shares of Common Stock or Preferred Stock; provided, howeverthat unless required by a Governmental Order, that in no event shall any such Stockholder receive such amounts unless and until such Stockholder has delivered his, her or its Letter of Transmittal to Buyer. Following the Closing, Buyer shall give the Stockholder Representative (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury reasonably prompt notice of any demands received by Xxxxx or the Surviving Corporation for appraisal of Xxxxx shares of Common SharesStock or Preferred Stock pursuant to the CCC, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement CCC and Section 262 of received by Buyer or the DGCL Surviving Corporation and shall give Mercury (b) the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant Notwithstanding any other provisions of this Agreement, Existing Shares which are issued and outstanding immediately prior to the Xxxxx LLC AgreementEffective Time and which are held by a holder who has not voted such shares of capital stock of the Company in favor of the Merger and who has delivered a written demand for relief as a dissenting stockholder in the manner provided by DGCL and who, as of the Effective Time, shall not have effectively withdrawn or lost such right to relief as a dissenting stockholder ("DISSENTING SHARES") shall not be converted into a right to receive the Per Share Amount. The holders thereof shall be entitled only to such rights as are granted by Section 262 of each Xxxxx Common Share are DGCL. Each holder of Dissenting Shares who becomes entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common payment for such Dissenting Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of DGCL shall receive payment therefor from the Surviving Corporation in accordance with DGCL; PROVIDED, HOWEVER, that if Xxxxx were a Delaware corporation and the holders any such holder of Xxxxx Common Dissenting Shares were stockholders of such corporation, and (i) shall have properly demanded appraisal failed to establish his entitlement to relief as a dissenting stockholder as provided in compliance with the provisions of Section 262 of the DGCL DGCL, (each, ii) shall have effectively withdrawn his demand for relief as a “Xxxxx Dissenting Share”), if any, dissenting stockholder with respect to such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares or lost his right to the extent permitted by relief as a dissenting stockholder and in accordance with the provisions of payment for his Dissenting Shares under Section 262 of the DGCL; provided, however, that DGCL or (aiii) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance shall have failed to file a complaint with the DGCL, affirmatively withdraws its demand for appraisal appropriate court seeking relief as to determination of such Xxxxx Dissenting Shares, or (b) if any holder the value of Xxxxx all Dissenting Shares takes or fails to take any action within the consequence time provided in Section 262 of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of relief as a dissenting stockholder with respect to such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and each such Xxxxx Common Shares Dissenting Share shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or Per Share Amount from the Stock election Consideration Surviving Corporation as provided in accordance with Section 2.3(c)2.2. Xxxxx The Company shall give Mercury Recap prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant the Company prior to the Xxxxx LLC Agreement Effective Time for relief as a dissenting stockholder, and Section 262 of Recap shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without except with the prior written consent of MercuryRecap, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementforegoing provisions of this Article III, the holders Dissenting Shares shall not be converted into a right to receive any portion of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish such holder’s entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares and each such share shall not constitute a Dissenting Share and shall be treated as if it had been a Preferred Share or Common Shares Share (as applicable) (and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares holder shall be deemed treated as a Pre-Closing Holder) immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(c)this Article III, without any interest thereon. Xxxxx shall The Company will give Mercury Buyer prompt notice of any demands all written notices received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served the Company pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL DGCL, and Buyer shall give Mercury have the opportunity and right to participate in direct all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Without the prior written consent of MercuryBuyer (which shall not be unreasonably withheld, conditioned or delayed), the Company shall not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment. From and after the Effective Time, no stockholder who has properly exercised and perfected appraisal rights pursuant to Section 262 of the DGCL shall be entitled to vote his or her shares of Preferred Stock or Common Stock, as applicable, for any purpose or receive payment of dividends or other distributions with respect to his or her shares of Preferred Stock or Common Stock (as applicable) (except dividends and distributions payable to stockholders of record at a date which is prior to the Effective Time).

Dissenting Shares. Pursuant Prior to the Xxxxx LLC AgreementClosing, the holders Companies will enforce the terms of each Xxxxx agreement pursuant to which a holder of APX Common Share are entitled Stock, Solar Common Stock or 2GIG Common Stock is a party and obtain consents to rights the applicable Merger and waivers of appraisal rights from each such holder (other than a Principal Stockholder or a holder who has voted in favor or consented to the event adoption of a merger this Agreement). Notwithstanding the foregoing provisions of Xxxxx that would give rise this Article I and to appraisal rights the extent available under Section 262 of the DGCL DGCL, Dissenting Shares, if Xxxxx were a Delaware corporation any, will not be converted into, or represent the right to receive, the APX Merger Consideration, Solar Merger Consideration or 2GIG Merger Consideration, as the case may be, and the holders thereof will be entitled only to such rights as are granted by Section 262 of Xxxxx Common the DGCL. Each holder of Dissenting Shares were stockholders who becomes entitled to payment for the fair cash value of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of DGCL will receive such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely payment therefor from the applicable Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that if any such holder of Dissenting Shares (a) if any holder fails to establish such holder’s entitlement to appraisal rights as provided in Section 262 of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively DGCL or (b) withdraws its such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes waives or fails loses such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall will forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares shall thereupon cease to share will not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall will be deemed to be No Election Shares treated as if it had been converted and converted automatically exchanged into and represent only the right to receive receive, as of the Cash Election Effective Time, from the applicable Surviving Corporation the portion of the APX Merger Consideration, Solar Merger Consideration and/or or 2GIG Merger Consideration, as the Stock election Consideration case may be, deliverable in respect thereof as determined in accordance with Section 2.3(c)this Article I and Article II, without any interest thereon. Xxxxx shall Each Company will give Mercury Buyer (i) prompt notice of any demands received by Xxxxx such Company for appraisal of Xxxxx Common Sharesany applicable shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury received by such Company and (ii) the opportunity to participate in all negotiations and any proceedings with respect theretoto demands for appraisal under the DGCL. Xxxxx shall notPrior to the Effective Time, no Company will, without the prior written consent of MercuryBuyer, 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. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, any issued and outstanding shares of Company Common Stock held by a Person (a “Dissenting Stockholder”) who has not voted in favor of the adoption of this Agreement and has complied with respect all the provisions of the DGCL concerning the right of holders of shares of Company Common Stock to each Xxxxx require appraisal of their shares (the “Appraisal Provisions”) of Company Common Share Stock (“Dissenting Shares”), to which the holder thereof would extent that the Appraisal Provisions are applicable, shall not be entitled converted into the right to demand appraisal receive payment pursuant to ‎Section 2.1(b), but shall become the right to receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to the procedures set forth in Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of . If such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively Stockholder withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take perfect or otherwise loses its right of appraisal, in any action the consequence of which is that such holder is not entitled case pursuant to payment for its shares under the DGCL, such holder or holders then (as the case may bei) shall forfeit the right to appraisal each of such Xxxxx Dissenting Stockholder’s shares of Company Common Shares and such Xxxxx Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and be treated as though such Xxxxx shares of Company Common Shares shall be deemed to be No Election Shares and Stock had been converted into and represent only the right to receive payment from Parent pursuant to ‎Section 2.1(b) (treating such Dissenting Stockholder as a Participating Holder); (ii) the Cash Election Consideration and/or Reserve Percentage for each Participating Holder shall be recalculated to exclude such Dissenting Stockholder’s shares of Company Common Stock from the Stock election Consideration number of Dissenting Shares included in accordance with the calculation of such Reserve Percentage; and (iii) the Agent shall promptly disburse to each Equityholder that previously received a payment pursuant to Section 2.3(c)2.2(c) (the “Original Payment”) an amount from the Exchange Fund equal to (A) the amount payable pursuant to Section 2.2(c) applying the Reserve Percentage as recalculated pursuant to clause (ii) above minus (B) the Original Payment. Xxxxx Company shall give Mercury Parent prompt notice of any demands received by Xxxxx for appraisal of Xxxxx shares of Company Common SharesStock received by Company, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect theretoDGCL. Xxxxx Company shall not, without the prior written consent of MercuryParent, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementforegoing provisions of this Article III, the holders Dissenting Shares shall not be converted into a right to receive any portion of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Final Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to Section 262 of the DGCLDGCL or the CGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporationas applicable, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCLDGCL or CGCL, as applicable; provided, however, that (ai) if any such holder of Xxxxx Dissenting SharesShares shall have failed to establish such holder’s entitlement to appraisal or dissenters’ rights as provided in Section 262 of the DGCL or the CGCL, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCLDGCL or the CGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares share shall thereupon cease to not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall be deemed treated as if it had been a Common Share or Preferred Share, as applicable, immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Final Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(cthis Article III, without any interest thereon (and such holder shall be treated as a Pre-Closing Holder). Xxxxx shall The Company will give Mercury Buyer prompt notice of any demands all notices received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served the Company pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL or the CGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Without the prior written consent of MercuryBuyer, the Company shall not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment. From and after the Effective Time, no stockholder who has properly exercised and perfected appraisal or dissenters’ rights pursuant to Section 262 of the DGCL or the CGCL shall be entitled to vote his or her Shares for any purpose or receive payment of dividends or other distributions with respect to his or her Shares (except dividends and distributions payable to stockholders of record at a date which is prior to the Effective Time). Any communication to be made by the Company to any stockholder with respect to Dissenting Shares shall be submitted to Buyer in advance and shall not be presented to any stockholder prior to the Company receiving Buyer’s prior written consent.

Dissenting Shares. Pursuant Notwithstanding Section 1.02, Shares which are issued and outstanding immediately prior to the Xxxxx LLC AgreementEffective Time and which are held by a holder who has not voted such shares in favor of the Merger, who shall have delivered a written demand for appraisal of such Shares in the manner provided by the Delaware Law and who, as of the Effective Time, shall not have effectively withdrawn or lost such right to appraisal ("DISSENTING SHARES") shall not be converted into a right to receive the Merger Consideration. The holders thereof shall be entitled only to such rights as are granted by Section 262 of each Xxxxx Common Share are the Delaware Law. Each holder of Dissenting Shares who becomes entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common payment for such Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and Law shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCLDelaware Law; provided, however, that (ai) if any such holder of Xxxxx Dissenting SharesShares shall have failed to establish his entitlement to appraisal rights as provided in Section 262 of the Delaware Law, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its (ii) if any such holder of Dissenting Shares shall have effectively withdrawn his demand for appraisal of such Xxxxx Dissenting Shares, Shares or lost his right to appraisal and payment for his Shares under Section 262 of the Delaware Law or (biii) if neither any holder of Xxxxx Dissenting Shares takes or fails to take any action nor the consequence Surviving Corporation shall have filed a petition demanding a determination of which is that such holder is not entitled to payment for its shares under the DGCLvalue of all Dissenting Shares within the time provided in Section 262 of the Delaware Law, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and each such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares Share shall be deemed to be No Election Shares treated as if it had been a Non-Electing Share and converted had been converted, as of the Effective Time, into and represent only the a right to receive the Cash Election Consideration and/or Merger Consideration, without interest thereon, from the Stock election Consideration Surviving Corporation as provided in accordance with Section 2.3(c)1.02 hereof. Xxxxx The Company shall give Mercury MergerSub prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to MergerSub shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without except with the prior written consent of MercuryMergerSub, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant Each share of Common Stock or Preferred Stock issued and outstanding immediately prior to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were Effective Time held by stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and who shall have properly demanded exercised their appraisal in compliance rights with the provisions of respect thereto under Section 262 of the DGCL (eachsuch shares of Common Stock, a “Xxxxx the "Dissenting Share”), if anyCommon Shares", such holder shares of Series A Preferred Stock, the "Dissenting Series A Preferred Shares", such shares of Series B Preferred Stock, the "Dissenting Series B Preferred Shares", such shares of Series B1 Preferred Stock, the "Dissenting Series B1 Preferred Shares", such shares of Series C Preferred Stock, the "Dissenting Series C Preferred Shares", such shares of Series D Preferred Stock, the "Dissenting Series D Preferred Shares", such shares of Series E Preferred Stock, the "Dissenting Series E Preferred Shares", such shares of Preferred Stock, the "Dissenting Preferred Shares", and all such shares, collectively, the "Dissenting Shares") shall not be converted into the right to receive the applicable Common Stock Consideration or Preferred Stock Consideration pursuant to the Merger, but shall be entitled to payment, solely from the Surviving Company, receive payment of the fair appraised value of the Xxxxx Dissenting Shares to the extent permitted by and such shares in accordance with the provisions of Section 262 of the DGCL; provided, however, except that (a) if any holder of Xxxxx each Dissenting Shares, under the circumstances permitted Share held by and in accordance with the DGCL, affirmatively withdraws its a stockholder who shall thereafter withdraw his or her demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes shall fail to perfect his or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the her right to appraisal of such Xxxxx Common Shares and payment as provided in such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares Section 262 shall be deemed to be No Election Shares and converted converted, as of the Effective Time, into and represent only the right to receive the Cash Election applicable Common Stock Consideration and/or the or Preferred Stock election Consideration in accordance with Section 2.3(c)the form such holder otherwise would have been entitled to receive as a result of the Merger. Xxxxx The Dissenters Rights Company Representative shall give Mercury Parent prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Sharesappraisal, withdrawals of such demands for appraisal and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and received by the Company in connection with the Merger, and the Dissenters Rights Company Representative shall give Mercury have the opportunity to participate in direct and settle all negotiations and proceedings with respect theretoto such demands. Xxxxx The Dissenters Rights Company Representative shall conduct all such negotiations and proceedings in good faith, and shall endeavor to resolve all such demands as promptly as practicable (and in any event prior to the termination of the Escrow Account pursuant to the terms of the Escrow Agreement). The Dissenters Rights Company Representative will not, without except with the prior written consent of MercuryParent (such consent not to be unreasonably withheld or delayed), make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Shares of each Xxxxx Talaria Common Share are entitled to rights or Talaria Preferred ----------------- that have not been voted for adoption of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, and with respect to each Xxxxx which appraisal rights shall have been properly perfected in accordance with Section 262 of the Delaware Corporation Law (the "Dissenting Shares") shall not ----------------- be converted into the right to receive shares of Esperion Common Share to which and cash in accordance with this Agreement at or after the Effective Time, unless and until the holder thereof would of such Dissenting Shares withdraws such holder's demand for such appraisal in accordance with Section 262(k) of the Delaware Corporation Law or becomes ineligible for such appraisal. If a holder of Dissenting Shares shall withdraw in accordance with Section 262(k) of the Delaware Corporation Law or such holder's demand for such appraisal or shall become ineligible for such appraisal, then, as of the later of the Effective Time or the occurrence of such event, such holder's Dissenting Shares shall cease to be entitled Dissenting Shares and shall be converted into the right to demand receive the shares of Esperion Common and cash into which such holder's Talaria Common or Talaria Preferred was converted as of the Effective Time pursuant to this Agreement. No distribution shall be made by Esperion in respect of any share of the Talaria capital stock (A) that has not voted for adoption of this Agreement or (B) in respect of which a waiver of the appraisal rights, pursuant to Section 262 of the DGCLDelaware Corporation Law, if Xxxxx were a Delaware corporation and has not been delivered by the holders of Xxxxx Common Shares were stockholders holder thereof, until the business day immediately following the date on which the statutory 20-day period, during which the holder of such corporation, and shall have properly demanded shares may demand appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely shares from the Surviving Company, Corporation pursuant to Section 262(d)(2) of the fair value Delaware Corporation Law, elapses. Any amounts to be paid to holders of the Xxxxx Dissenting Shares with respect to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx such Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares paid by the Surviving Corporation, and converted into and represent only Esperion shall not reimburse the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx Surviving Corporation for such payments nor shall give Mercury prompt notice of any demands received by Xxxxx Esperion, directly or indirectly, provide funds for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demandspayments.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, shares of Company Capital Stock issued and outstanding immediately prior to the Effective Time (other than shares of Company Common Stock canceled in accordance with respect to each Xxxxx Common Share to which the Section 1.2(b)) and held by a holder thereof would be entitled to demand who has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders rights of such corporation, and shall have properly demanded appraisal shares in compliance accordance with the provisions of Section 262 of the DGCL (each, a such shares being referred to collectively as the “Xxxxx Dissenting Share”), if any, Shares” until such time as such holder fails to perfect or effectively withdraws or otherwise loses such holder’s appraisal rights under the DGCL with respect to such shares) shall not be converted into or represent the right to receive the Merger Consideration but instead such Dissenting Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and the holder thereof shall be entitled to payment, solely from the Surviving Company, only such rights as are granted by Section 262 of the fair DGCL payment of the appraised value of the Xxxxx Dissenting Shares to the extent permitted by and such shares in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any if, after the Effective Time, such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action perfect or effectively withdraws or otherwise loses such holder’s right to appraisal pursuant to Section 262 of the consequence DGCL or if a court of which is competent jurisdiction shall determine that such holder is not entitled to payment for its shares under the relief provided by Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal shares of such Xxxxx Common Shares and such Xxxxx Common Shares Company Capital Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and treated as if they had been converted into and represent only exchangeable for, as of the Effective Time, the right to receive the Cash Election Consideration and/or the Stock election Merger Consideration in accordance with Section 2.3(c)this Agreement, without interest thereon, upon surrender of such Certificate formerly representing such shares, and shall not thereafter be deemed to be Dissenting Shares. Xxxxx The Company shall give Mercury provide Parent prompt written notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Sharesshares of Company Capital Stock, withdrawals any withdrawal of any such demands demand and any other instruments served demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the Xxxxx LLC Agreement DGCL that relates to such demand, and Section 262 of the DGCL and Parent shall give Mercury have the opportunity and right to participate in and control all negotiations and proceedings with respect theretoto such demands under the DGCL consistent with the obligations of the Company thereunder. Xxxxx shall not, without Except with the prior written consent of MercuryParent, the Company shall not make any payment with respect to, or offer to settle or offer to settle, any such demands, or agree to do any of the foregoing. From and after the Effective Time, a holder of Dissenting Shares shall not be entitled to exercise any of the voting rights or other rights of an equity owner of the Surviving Corporation or of a stockholder of Parent.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect shares of Company Stock (the “Dissenting Shares”) that are issued and outstanding immediately prior to each Xxxxx Common Share to which the holder thereof would be Effective Time and that are held by a stockholder who did not vote in favor of the First Merger or consent thereto in writing and who is entitled to demand and properly demands appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporationshares pursuant to, and shall have properly demanded appraisal who complies in compliance with all respects with, the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting ShareStockholder”), if any, shall not be (i) converted into or be exchangeable for the right to receive the Per Share Merger Consideration or (ii) cancelled without any consideration in accordance with Section 3.1(c). Instead such holder shall be entitled to payment, solely from the Surviving Company, payment of the fair value of such shares in accordance with the Xxxxx provisions of Section 262 of the DGCL (and at the Effective Time, such Dissenting Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the extent permitted by and right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL; provided), however, that (a) if any unless and until such holder of Xxxxx Dissenting Shares, shall have failed to perfect or shall have effectively withdrawn or lost rights to appraisal under the circumstances permitted by DGCL. If any Dissenting Stockholder shall have failed to perfect or shall have effectively withdrawn or lost such rights, such holder’s shares of Company Stock shall thereupon be treated, as applicable, as if they had been converted into and become exchangeable for the right to receive, as of the Effective Time, the Per Share Merger Consideration for each such share, in accordance with the DGCLthis Article III, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shareswithout any interest thereon, or (b) if be canceled without any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration consideration in accordance with Section 2.3(c3.1(c). Xxxxx The Company shall give Mercury Parent (A) prompt notice of any written demands received by Xxxxx for appraisal of Xxxxx any shares of Common SharesStock, attempted withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury received by the Company relating to stockholders’ rights of appraisal, and (B) the opportunity to participate in all negotiations and proceedings with respect theretoto demands for appraisal under the DGCL. Xxxxx The Company shall not, without except with the prior written consent of MercuryParent, voluntarily make any payment with respect to, or settle settle, or offer or agree to settle, any such demandsdemand for payment.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect all shares of PEB Common Stock that are issued and outstanding immediately prior to each Xxxxx Common Share the Effective Time and which are held by a shareholder that has perfected her, his or its right to which dissent pursuant to Chapter 13 of the CGCL, including making a demand of PEB to purchase her, his or its shares pursuant to Section 1301 of the CGCL and submitting her, his or its shares for endorsement pursuant to Section 1302 of the CGCL, and has not effectively withdrawn or lost such right as of the Effective Time (the “Dissenting Shares”) shall not be converted into or represent a right to receive the Merger Consideration hereunder, and the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled only to paymentsuch rights as are granted by the CGCL. No later than ten (10) days following the date of PEB shareholder approval of the Merger, solely from PEB shall provide each record holder of PEB common stock entitled to vote on the Surviving CompanyMerger, with notice including the information set forth in Section 1301 (a) of the CGCL. PEB shall give BayCom prompt notice upon receipt by PEB of any such written demands for payment of the fair value of the Xxxxx Dissenting Shares to the extent permitted by such shares of PEB Common Stock and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served provided pursuant to the Xxxxx LLC Agreement and Section 262 CGCL. If any holder of Dissenting Shares shall have effectively withdrawn or lost the DGCL and right to dissent (through failure to perfect or otherwise), the Dissenting Shares held by such holder shall be converted on a share by share basis into the right to receive the Merger Consideration in accordance with the applicable provisions of this Agreement, without any interest thereon. Any payments made in respect of Dissenting Shares shall be made by or at the direction of BayCom within the time period set forth in the CGCL. PEB shall give Mercury BayCom (i) prompt notice of any written notices of intent to demand payment under the CGCL or other written notices relating to the exercise of dissenters’ rights in respect of any shares of PEB Common Stock, attempted withdrawals of such notices and any other instruments served pursuant the CGCL and received by PEB relating to shareholders’ dissenters’ rights and (ii) the opportunity to participate in all negotiations and proceedings with respect theretoto demands for fair value under the CGCL. Xxxxx PEB shall not, without except with the prior written consent of MercuryBayCom, which is not to be unreasonably withheld, voluntarily make any payment with respect to, or settle settle, or offer or agree to settle, any such demandsdemand for payment. Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Article II to pay for shares of PEB Common Stock for which dissenters’ rights have been perfected shall be returned to BayCom upon demand.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, shares of CBH Common Stock and CBH Preferred Stock held by holders thereof who are entitled to vote on the Merger and who have not voted such shares in favor of the adoption of this Agreement and the Merger and with respect to each Xxxxx Common Share which appraisal rights shall have been properly exercised and perfected in accordance with Section 262 of the DGCL (the "Dissenting Shares"), shall not be converted into or represent the right to receive the Merger Consideration which the holder thereof would holders of CBH Common Stock and CBH Preferred Stock are entitled to receive pursuant to Sections 2.1 through 2.3 above, and holders of such Dissenting Shares shall be entitled to receive only the payment provided for by Section 262 of the DGCL unless and until such holders fail to perfect or effectively withdraw or otherwise lose their rights to demand appraisal payment under the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such Dissenting Shares shall thereupon be deemed to be "Non-Electing Company Shares." CBH shall give NeoStem (i) prompt notice of any demands for payment for Dissenting Shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common SharesCBH, withdrawals of such demands demands, and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury received by CBH and (ii) the opportunity to participate in direct all negotiations and proceedings with respect theretoto demands for payment pursuant to Section 262 of the DGCL. Xxxxx CBH shall not, without except with the prior written consent of MercuryNeoStem or as otherwise required by Applicable Law, make any payment with respect to, or settle to any such demands for payment or offer to settle, settle or settle any such demands. Notwithstanding anything in this Agreement to the contrary, NeoStem, at the election of its Board of Directors (or a committee thereof), in its sole discretion, may terminate and abandon this Agreement at any time prior to the Closing if the Dissenting Shares represent more than five (5%) of the shares of CBH Common Stock or CBH Preferred Stock held by holders thereof who are entitled to vote on the Merger.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which no Share, the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have which has properly demanded appraisal in compliance complied with the provisions of Section 262 623 of the DGCL NYBCL as to appraisal rights (each, a “Xxxxx "Dissenting Share”"), will be deemed to be converted into and to represent the right to receive the Merger Consideration hereunder and the holders of Dissenting Shares, if any, such holder shall will be entitled to payment, solely from the Surviving CompanyCorporation, of the fair appraised value of the Xxxxx such Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 623 of the DGCLNYBCL; provided, however, that (ai) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCLNYBCL, affirmatively withdraws its subsequently delivers a written withdrawal of his or her demand for appraisal of such Xxxxx Dissenting Shares, or (bii) if any such holder fails to establish his or her entitlement to rights to payment as provided in such Section 623, or (iii) if neither any holder of Xxxxx Dissenting Shares takes or fails nor the Surviving Corporation has instituted a proceeding to take determine the rights of holders of Dissenting Shares and to fix the fair value of Dissenting Shares in any action of the consequence circumstances described in subparagraph (h) of which is that Section 623 within the time provided in such Section 623, such holder is not entitled will forfeit such right to payment for its shares under such Dissenting Shares pursuant to such Section 623 and, as of the DGCLlater of Effective Time or the occurrence of such event, such holder or holders (as the case may be) shall forfeit the right to appraisal holder's Certificate formerly representing shares of such Xxxxx Company Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall Stock will automatically be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Merger Consideration and/or pursuant to Section 3.01 hereof, without any interest thereon, upon surrender of the Stock election Consideration in accordance with Section 2.3(c)Certificate or Certificates formerly representing such shares of Company Common Stock. Xxxxx shall The Company will give Mercury Parent (A) prompt notice of any written demands received by Xxxxx for appraisal of Xxxxx Common any Dissenting Shares, attempted withdrawals of such demands and any other instruments served pursuant received by the Company relating to the Xxxxx LLC Agreement and Section 262 shareholders' rights of the DGCL and shall give Mercury appraisal, (B) the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall notto demands for appraisal under the NYBCL, without and (C) the prior written consent right to approve any settlement of Mercury, make any payment with respect to, or settle or offer to settle, any such demandsdemand in Parent's sole discretion.

Dissenting Shares. Pursuant to If, in connection with the Xxxxx LLC AgreementMerger, the holders of each Xxxxx Company Common Share are entitled Stock shall have demanded and perfected dissenters’ rights pursuant to rights Part 13 of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders Utah Law (“Dissenting Stock”), none of such corporation. Accordingly, and notwithstanding anything in this Agreement Dissenting Stock shall be converted into a right to receive a portion of the contrary, Merger Consideration or any other amount deliverable with respect to each Xxxxx such Company Common Share Stock in accordance with this ARTICLE I, but shall be converted into the right to which the holder thereof would receive such consideration as may be entitled determined to demand appraisal be due with respect to such Dissenting Stock pursuant to Section 262 the Utah Law. Each holder of the DGCLDissenting Stock who, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with pursuant to the provisions of Section 262 of the DGCL (eachUtah Law, a “Xxxxx Dissenting Share”), if any, such holder shall be becomes entitled to payment, solely from the Surviving Company, payment of the fair value of the Xxxxx Dissenting Shares such shares, to the extent permitted the fair value is determined to be in excess of what such holder would otherwise receive pursuant to this Merger Agreement, shall receive payment from the Stockholder Indemnifying Parties (as defined below) of such excess therefor as set forth in Section 5.8(c). In the event that any holder of Dissenting Stock fails to make an effective demand for payment or fails to perfect its dissenters’ rights as to its Company Common Stock or any Dissenting Stock shall otherwise lose their status as Dissenting Stock, then any such shares shall immediately be converted into the right to receive the Merger Consideration issuable pursuant to this ARTICLE I in respect of such shares as if such shares had never been Dissenting Stock, and NBEV shall issue and deliver to the holder thereof, at (or as promptly as reasonably practicable after) the Effective Time, following the satisfaction of the applicable conditions set forth in Section 1.7, the amount of the Merger Consideration and any other amounts, to which such holders of Company Common Stock would have been entitled under Section 1.6(a) with respect to such shares. The Company shall give NBEV (i) prompt notice of any demand received by and the Company for appraisal of Company Common Stock or notice of intent to exercise a holder of Company Common Stock’s dissenters’ rights in accordance with the provisions of Section 262 of the DGCL; providedUtah Law, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be, and (ii) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in direct all negotiations and proceedings that take place after the Closing, with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any demands for dissenters’ rights under such demandslaw.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrarycontrary and to the extent available under Section 262 of the DGCL, any share of Company Stock that is issued and outstanding immediately prior to the Effective Time and that is held by a Common Stockholder or Company Preferred Stockholder who did not consent to or vote (by a valid and enforceable proxy or otherwise) in favor of the adoption of this Agreement, which Common Stockholder or Company Preferred Stockholder complies with respect all of the provisions of the DGCL relevant to each Xxxxx the exercise and perfection of appraisal rights (such share being a “Dissenting Share,” and such Common Share Stockholder or Company Preferred Stockholder being a “Dissenting Stockholder”), shall not be converted into the right to receive the consideration to which the holder thereof of such share would be entitled pursuant to demand appraisal Section 1.04 but rather shall be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Share pursuant to Section 262 of the DGCL. If any Dissenting Stockholder fails to perfect such stockholder’s appraisal rights under the DGCL or effectively withdraws or otherwise loses such rights with respect to any Dissenting Shares, such Dissenting Shares shall thereupon automatically be converted into the right to receive the consideration referred to in Section 1.04, pursuant to the exchange procedures set forth in Section 1.06. Notwithstanding anything to the contrary contained in this Agreement, if Xxxxx were the Merger is rescinded or abandoned, then the right of a Delaware corporation and Stockholder to be paid the holders of Xxxxx Common Shares were stockholders fair value of such corporation, and shall have properly demanded appraisal in compliance with the provisions of holder’s Dissenting Shares pursuant to Section 262 of the DGCL shall cease. The Company shall give Parent (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, a) notice of any demand for payment of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions any shares of Section 262 Company Stock or any attempted withdrawal of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its such demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments instrument served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury received by the Company relating to any Stockholder’s appraisal rights and (b) the opportunity to participate in all negotiations and proceedings with respect theretoto any such demands for payment under the DGCL. Xxxxx The Company shall notnot (x) voluntarily make any payment with respect to any demand for appraisal with respect to any Dissenting Shares and/or (y) offer to settle or settle any demand, in either case, without the prior written consent of MercuryParent (which consent shall not be unreasonably conditioned, make withheld or delayed). Notwithstanding the foregoing, to the extent that Parent or the Surviving Corporation (i) makes any payment or payments in respect of any Dissenting Shares in excess of the Merger Consideration that otherwise would have been payable in respect of such Dissenting Shares in accordance with this Agreement (valuing the Parent Common Stock at the Final Closing Date Price) or (ii) incurs, suffers or sustains any Losses in respect toof any Dissenting Shares (excluding payments for such shares) ((i) and (ii) together “Dissenting Share Payments”), or settle or offer Parent shall be entitled to settle, any recover the amount of such demandsDissenting Share Payments under the terms of Article VIII hereof.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any other provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect shares of Centennial Stock that are outstanding immediately prior to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 Effective Time and that are held by shareholders who shall have not voted in favor of the DGCL, if Xxxxx were a Delaware corporation Merger or consented thereto in writing and the holders of Xxxxx Common Shares were stockholders of such corporation, and who properly shall have properly demanded appraisal for such shares in compliance accordance with the provisions of Section 262 Article 13 of the DGCL North Carolina Business Corporation Act (eachcollectively, a “Xxxxx the "Dissenting Share”), if any, such holder Shares") shall not be converted into or represent the right to receive the Merger Consideration. Such shareholders instead shall be entitled to payment, solely from the Surviving Company, receive payment of the fair appraised value of the Xxxxx Dissenting Shares to the extent permitted such shares held by and them in accordance with the provisions of Section 262 Article 13 of the DGCL; providedNorth Carolina Business Corporation Act, however, except that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx all Dissenting Shares takes held by shareholders who shall have failed to perfect or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder who effectively shall have withdrawn or holders (as the case may be) shall forfeit the right otherwise lost their rights to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shares under Article 13 of the North Carolina Business Corporation Act shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted into and represent only to have become exchangeable, as of the Effective Time, for the right to receive receive, without any interest thereon, the Cash Election Merger Consideration and/or upon surrender in the Stock election Consideration manner provided in accordance with Section 2.3(c)1.8 of the certificate or certificates that, immediately prior to the Effective Time, evidenced such shares. Xxxxx Centennial shall give Mercury prompt Crescent Financial (i)prompt notice of any written demands received by Xxxxx for appraisal of Xxxxx Common Sharesany shares of Centennial Stock, attempted withdrawals of such demands and for appraisal or any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 Article 13 of the DGCL North Carolina Business Corporation Act and shall give Mercury received by Centennial relating to shareholders' rights of appraisal, and (ii) the opportunity to participate in all negotiations and proceedings with respect theretoto demands under Article 13 of the North Carolina Business Corporation Act consistent with the obligations of Centennial thereunder. Xxxxx Centennial shall not, without except with the prior written consent of MercuryCrescent Financial, (x) make any payment with respect toto such demand, (y) offer to settle or settle any demand for appraisal, or settle (z) waive any failure to timely deliver a written demand for appraisal or offer timely take any other action to settle, any such demandsperfect appraisal rights in accordance with Article 13 of the North Carolina Business Corporation Act.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, shares of common stock of any Merged Entity issued and outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised dissenters’ rights or appraisal rights of such shares of common stock of any Merged Entity in accordance with Section 10-1321 of the ARS (such shares being referred to collectively as the “Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s appraisal rights under the ARS with respect to each Xxxxx Common Share such Shares) shall not be converted into a right to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 receive a portion of the DGCL, if Xxxxx were Closing Per Share Merger Consideration together with any amounts that may become payable as a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 result of the DGCL (each, a “Xxxxx Dissenting Share”)adjustments in Section 3.3 hereof or the release of Escrow Shares, if any, such holder but instead shall be entitled to payment, solely from the Surviving Company, only such rights as are granted by Article 2 of Chapter 13 of Title 10 of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCLARS; provided, however, that (a) if any if, after the Effective Time, such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action perfect, withdraws or loses such holder’s right to appraisal pursuant to Article 2 of Chapter 13 of Title 10 of the consequence ARS or if a court of which is competent jurisdiction shall determine that such holder is not entitled to payment for its shares under the DGCLrelief provided by Article 2 of Chapter 13 of Title 10 of the ARS, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shares shall be deemed to be No Election Shares and treated as if they had been converted as of the Effective Time into and represent only the right to receive the Cash Election portion of the Closing Per Share Merger Consideration and/or together with any amounts that may become payable as a result of the Stock election Consideration adjustments in accordance with Section 2.3(c3.3 hereof or the release of Escrow Shares, if any, to which such holder is entitled pursuant to Section 2.2(f), without interest thereon. Xxxxx Sellers shall give Mercury provide Purchaser prompt written notice of any demands received by Xxxxx any Acquired Company for appraisal of Xxxxx Common Sharesshares of the Merged Entity, withdrawals any withdrawal of any such demands demand and any other instruments served demand, notice or instrument delivered to any Acquired Company prior to the Effective Time pursuant to the Xxxxx LLC Agreement ARS that relates to such demand, and Section 262 of the DGCL and Purchaser shall give Mercury have the opportunity and right to participate in direct all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Except with the prior written consent of MercuryPurchaser, neither the Sellers nor any Acquired Company shall make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant Notwithstanding Section 3.01(b) hereof, to the Xxxxx LLC Agreement, the extent that holders of each Xxxxx Common Share thereof are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under Article 5.12 of the DGCL if Xxxxx were TBCA, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time and held by a Delaware corporation holder who has properly exercised and perfected his or her demand for appraisal rights under Article 5.12 of the TBCA (the “Dissenting Shares”), shall not be converted into the right to receive the Merger Consideration, but the holders of Xxxxx Common such Dissenting Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, receive such consideration as shall be determined pursuant to Article 5.12 of the fair value TBCA (and at the Effective Time, such Dissenting Shares shall no longer be outstanding and shall cease to have any rights with respect thereto, except the right to receive such consideration as shall be determined pursuant to Article 5.12 of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCLTBCA); provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled shall have failed to payment for its shares under the DGCL, such holder perfect or holders (as the case may be) shall forfeit the have effectively withdrawn or lost his or her right to appraisal and payment under the TBCA, such holder’s shares of such Xxxxx Company Common Shares and such Xxxxx Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted as of the Effective Time into and represent only the right to receive the Cash Election 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 not the Company, Mergerco or either Parent) and the Aggregate Merger Consideration and/or shall be reduced, on a dollar for dollar basis, as if the Stock election Consideration in accordance with Section 2.3(c)holder of such Dissenting Shares had not been a shareholder on the Closing Date. Xxxxx The Company shall give Mercury prompt the Parents notice of any all demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of Parents shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto all holders of Dissenting Shares. Xxxxx The Company shall not, without except with the prior written consent of Mercurythe Parents, voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment from any holder of Dissenting Shares.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, including Section 4.1, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Company Common Stock cancelled in accordance with Section 3.2(a)) and held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised and perfected appraisal rights of such shares of Company Common Stock in accordance with Section 3-203 of the MGCL (such shares of Company Common Stock being referred to collectively as the “Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s appraisal rights under the MGCL with respect to each Xxxxx Common Share such shares) shall not be converted into a right to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 receive a portion of the DGCLMerger Consideration Shares, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder but instead shall be entitled to payment, solely from the Surviving Company, only such rights as are granted by Subtitle 2 of Title 3 of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCLMGCL; provided, however, that (a) if any if, after the Effective Time, such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action perfect, withdraws or loses such holder’s right to appraisal pursuant to Subtitle 2 of Title 3 of the consequence MGCL or if a court of which is competent jurisdiction shall determine that such holder is not entitled to payment for its shares under the DGCLrelief provided by Subtitle 2 of Title 3 of the MGCL, then such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and treated as if they had been converted as of the Effective Time into and represent only the right to receive the Cash Election portion of the Merger Consideration and/or Shares to which such holder is entitled pursuant to the applicable subsections of Section 3.1, without interest thereon, upon surrender of the Company Stock election Consideration Certificate or Company Stock Certificates representing such Dissenting Shares in accordance with Section 2.3(c)4.4. Xxxxx The Company shall give Mercury promptly provide Parent prompt written notice of any demands received by Xxxxx the Company for appraisal of Xxxxx shares of Company Common SharesStock, withdrawals any withdrawal of any such demands demand and any other instruments served demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the Xxxxx LLC Agreement MGCL that relates to such demand, and Section 262 of the DGCL and Parent shall give Mercury have the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect any shares of Gyrodyne Common Stock that are issued and outstanding immediately prior to each Xxxxx Common Share the Effective Time and which are held by a shareholder who has not voted or consented in writing to which the holder thereof would be adopt this Agreement and who is entitled to demand and properly demands appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporationshares pursuant to, and shall have properly demanded appraisal who complies in compliance with all respects with, the provisions of Section 262 pursuant to Section 623 of the DGCL NYBCL by the shareholders of Gyrodyne (eachsuch shareholders, a the “Xxxxx Dissenting ShareShareholders” and such shares of Gyrodyne Common Stock, the “Dissenting Shares”), if anyshall not be converted into LLC Shares, such holder but instead shall be entitled cancelled and Dissenting Shareholders shall cease to payment, solely from have any rights with respect to such Dissenting Shares other than the Surviving Company, of right to be paid the fair value of the Xxxxx such Dissenting Shares as may be granted pursuant to Section 623 of the extent permitted by NYBCL, unless and until such Dissenting Shareholder shall have failed to perfect or shall have effectively withdrawn his demand or his lost rights to appraisal under the NYBCL. If, after the Effective Time, any Dissenting Shareholder shall have failed to perfect, or shall have effectively withdrawn his demand or lost his rights to appraisal under the NYBCL, (i) such Dissenting Shareholder’s shares shall no longer be considered Dissenting Shares for the purposes of this Plan of Merger and such holder’s shares shall thereupon be deemed to have been converted into, as of the Effective Time, the LLC Shares in accordance with the provisions of Section 262 of the DGCL; providedSections 3.1, however, that (a) if and any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, dividends or (b) if any holder of Xxxxx Dissenting Shares takes or fails other distributions to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCLentitled, without any interest thereon and (ii) such holder or holders (as the case may be) Dissenting Shareholder shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx be Dissenting Shareholder, shares of Gyrodyne Common Stock owned by such person shall cease to be Dissenting Shares and such Xxxxx Common Shares person shall be deemed automatically admitted to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice Gyrodyne, LLC as a member of any demands received by Xxxxx for appraisal of Xxxxx Common SharesGyrodyne, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demandsLLC.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to No shareholder who has validly exercised its appraisal and dissention rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 238 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder Cayman Companies Law shall be entitled to payment, solely from receive the Surviving Company, Per Share Merger Consideration as provided for in Section 2.02 with respect to the Company Shares owned by such shareholder (the “Dissenting Shares”) unless and until such shareholder shall have effectively withdrawn or lost such shareholder’s appraisal and dissention rights under the Cayman Companies Law. Any such shareholder shall instead be entitled to receive only the payment of the fair value resulting from the procedure in Section 238 of the Xxxxx Dissenting Shares Cayman Companies Law with respect to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx such shareholder’s Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only cancelled at the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)Effective Time. Xxxxx The Company shall give Mercury Parent (A) prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Sharesappraisal, attempted withdrawals of such demands demands, and any other instruments served pursuant to Applicable Law that are received by the Xxxxx LLC Agreement Company relating to Company shareholders’ rights of dissention, and Section 262 of the DGCL and shall give Mercury (B) the opportunity to participate in all negotiations and proceedings with respect theretoto demand for determining the fair value of the Dissenting Shares under the Cayman Companies Law. Xxxxx Notwithstanding the foregoing, all Dissenting Shares held by any shareholder who shall not, without the prior written consent of Mercury, make any payment with respect tohave failed to validly exercise its appraisal and dissention rights, or settle withdrawn or offer lost such shareholder’s rights of dissention of such Dissenting Shares under Section 238 of the Cayman Companies Law, shall thereupon (i) not be deemed to settlebe Dissenting Shares and (ii) be deemed to have been cancelled and converted into, any such demandsand to have become exchanged for, as of the Effective Time, the right to receive the Per Share Merger Consideration in the manner provided in Section 2.03.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx share of Company Common Share Stock as to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance complied with the provisions of Section 262 of the DGCL as to appraisal rights (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving CompanyCorporation, of the fair appraisal value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its his demand for appraisal of such Xxxxx Dissenting Shares, or (bii) if any holder of Xxxxx Dissenting Shares fails to establish his entitlement to appraisal rights as provided in the DGCL or (iii) if any holder of Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its his shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares of Company Common Shares Stock and such Xxxxx shares of Company Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and if such Xxxxx forfeiture shall occur following the Election Deadline, each such share of Company Common Shares Stock shall thereafter be deemed to be No Election Shares and have been converted into and represent only to have become, as of the Effective Time, the right to receive, without interest thereon, the Per Share Stock Consideration; provided that Parent shall be entitled to convert each such share into the right to receive the Per Share Cash Election Consideration and/or or a combination of the Per Share Cash Consideration and Per Share Stock election Consideration in accordance with if Parent shall have received an opinion from Txxxxxxx & Kxxxxx, LLP stating that the Merger shall not fail to satisfy the continuity of interest requirement under Section 2.3(c)368 of the Code as a result thereof. Xxxxx The Company shall give Mercury Parent prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx shares of Company Common SharesStock, withdrawals of such demands and any other instruments served pursuant to Parent shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without the prior written consent of Mercurynot settle, make any payment payments with respect to, or settle or offer to settle, any such demandsclaim with respect to Dissenting Shares without the written consent of Parent.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect shares of ZMP Common Stock that are issued and outstanding immediately prior to each Xxxxx Common Share the Effective Time and that are held by a stockholder who has the right (to which the holder thereof would be entitled extent such right is available by law) to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, receive payment of the fair value of such holder's stock pursuant to California law shall not be converted into the Xxxxx Dissenting Shares right to receive the extent permitted by Merger Consideration (unless and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that until such holder is not entitled shall have failed to payment for its shares perfect or shall have effectively withdrawn or lost such right under the DGCLCalifornia law, such holder or holders (as the case may be) (such shares, the "Dissenting Shares"), but the holder thereof shall forfeit the right only be entitled to appraisal such rights as are granted by California law. If such holder shall have so failed to perfect or shall have effectively withdrawn or lost such right, such holder's shares of such Xxxxx ZMP Common Shares and such Xxxxx Common Shares Stock shall thereupon cease to constitute Xxxxx no longer be Dissenting Shares and such Xxxxx Common Shares Shares, but shall be deemed to be No Election Shares and have been converted at the Effective Time into and represent only the right to receive the Cash Election Merger Consideration and/or (without any interest thereon), and the Stock election Merger Consideration payable in accordance with Section 2.3(c)respect thereof and in respect of all other ZMP Shares shall be adjusted to yield the results that would have obtained if such shares had been treated as ZMP Shares rather than Dissenting Shares at the Closing. Xxxxx shall give Mercury prompt notice If the holder of any demands received by Xxxxx shares of ZMP Common Stock shall become entitled to receive payment for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served shares pursuant to the Xxxxx LLC Agreement and Section 262 1300 of the DGCL California Corporations Code ("Section 1300 Payment") then such payment shall be made by the Surviving Corporation with no cost or other liability to any of the Selling Shareholders or the Shareholders' Representative, except as provided or referred to in the next sentence. Pursuant to Section 7.1(4), the Buyer Indemnitees shall be indemnified against all Losses incurred by them (including Section 1300 Payments and shall give Mercury payments required hereunder out of the opportunity Dissenting Share Amount) in connection with or as a result of the existence of Dissenting Shares at the Closing if and to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, extent that such Losses or settle or offer to settle, any such demandspayments exceeds the Dissenting Share Amount.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx share of Company Common Share Stock as to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance complied with the provisions of Section section 262 of the DGCL as to appraisal rights (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving CompanyCorporation, of the fair appraisal value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section section 262 of the DGCL; provided, however, that (ai) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its his demand for appraisal of such Xxxxx Dissenting Shares, or (bii) if any holder of Xxxxx Dissenting Shares fails to establish his entitlement to appraisal rights as provided in the DGCL or (iii) if any holder of Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its his shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares of Company Common Shares Stock and such Xxxxx shares of Company Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and if such Xxxxx forfeiture shall occur following the Election Deadline, each such share of Company Common Shares Stock shall thereafter be deemed to be No Election Shares and have been converted into and represent only to have become, as of the Effective Time, the right to receive, without interest thereon, the Per Share Stock Consideration; provided that Parent shall be entitled to convert each such share into the right to receive the Per Share Cash Election Consideration and/or or a combination of the Per Share Cash Consideration and Per Share Stock election Consideration if (x) Parent shall have received an opinion from XxXxxxxxx Will & Xxxxx LLP and (y) the Company shall have received an opinion from Wachtell, Lipton, Xxxxx & Xxxx, in accordance with each case, to the effect that the Merger will not fail to satisfy the continuity of interest requirement under Section 2.3(c)368 of the Code as a result thereof. Xxxxx The Company shall give Mercury Parent prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx shares of Company Common SharesStock, withdrawals of such demands and any other instruments served pursuant to Parent shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without the prior written consent of Mercurynot settle, make any payment payments with respect to, or settle or offer to settle, any such demandsclaim with respect to Dissenting Shares without the written consent of Parent.

Dissenting Shares. Pursuant No Dissenting Share shall be converted into the right to receive any of the Xxxxx LLC Agreement, Aggregate Merger Consideration unless the holders applicable holder of each Xxxxx Common such Dissenting Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise shall have forfeited its right to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. AccordinglyDGCL, and notwithstanding anything in this Agreement to the contraryor properly withdrawn its demand for appraisal, with respect to each Xxxxx Common Share such Dissenting Share. At the Effective Time, all Dissenting Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporationexist, and each holder of Dissenting Shares shall cease to have properly demanded appraisal in compliance any rights with respect thereto, except the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled right to payment, solely from the Surviving Company, of receive the fair value of the Xxxxx such Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if . If any holder of Xxxxx Dissenting Shares has forfeited or properly withdrawn its right to appraisal of such Dissenting Shares, under then, (i) as of the circumstances permitted by occurrence of such event, such Dissenting Shares shall cease to be Dissenting Shares and shall be converted into and represent the right to receive the Total Per Share Merger Consideration payable in respect of each such share of Company Common Stock (subject to the Per Share Escrow Contributions with respect to each such share being deposited with the Escrow Agents and being held and distributed in accordance with the terms of the Escrow Agreements) pursuant to, and in accordance with the DGCLprovisions of, affirmatively withdraws its demand for appraisal Section 3.2, and (ii) promptly following the occurrence of such Xxxxx Dissenting Sharesevent, Parent or the Surviving Corporation shall, or (b) if any shall cause the Exchange Agent to, deliver to such holder promptly after receipt from such holder of Xxxxx Dissenting Shares takes or fails a duly executed letter of transmittal and surrendered Certificates, a payment representing the Closing Merger Consideration to take any action the consequence of which is that such holder is not entitled pursuant to payment for its shares under Section 3.2. The Company (and after the DGCLEffective Time, such holder the Surviving Corporation) shall serve prompt notice to Parent (and after the Effective Time, the Stockholder Representative) of any demands received by the Company (or holders (the Surviving Corporation, as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx any shares of Company Common Shares, withdrawals of such demands and any other instruments served pursuant Stock. Prior to the Xxxxx LLC Agreement Effective Time, the Company (and Section 262 after the Effective Time, the Stockholder Representative) shall have the sole right to direct any negotiations and proceedings with respect to such demands, and to settle or otherwise reach an agreement with respect to any such demands, with the applicable holder of Dissenting Shares; provided however that Parent shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect thereto. Xxxxx to such demands, and any settlement or agreement with respect to any such demands shall not, without be subject to the prior written consent of MercuryParent, make not to be unreasonably withheld. In the event any payment such appraisal of Dissenting Shares in accordance with Section 262 of the DGCL assigns a value to any Dissenting Share in excess of the Total Per Share Merger Consideration, or the Company or the Stockholder Representative settles any such demands in excess of the Total Per Share Merger Consideration with respect toto any Dissenting Share, or settle or offer such excess amount (the "Appraisal Excess Amount") shall (A) to settlethe extent it is paid to the holder of such Dissenting Share on the Closing Date, any form part of Company Transaction Expenses and (B) to the extent it is paid to the holder of such demandsDissenting Share after the Closing Date, be paid solely from the Indemnity Escrow Deposit.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement contained herein to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx any Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is shall not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or merger consideration provided for in Section 1.9, but shall instead be converted into the Stock election Consideration right to receive such consideration as may be determined to be due with respect to any such Dissenting Shares pursuant to Delaware Law. Each holder of Dissenting Shares who, pursuant to the provisions of Delaware Law, becomes entitled to payment thereunder for such shares shall receive payment therefor in accordance with Section 2.3(cDelaware Law (but only after the value therefor shall have been agreed upon or finally determined pursuant to such provisions). Xxxxx If, after the Effective Time, any Dissenting Shares shall lose their status as Dissenting Shares, then any such shares shall immediately be converted into the right to receive the amounts payable pursuant to Section 1.9, if any, in respect of such shares as if such shares never had been Dissenting 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 Section 1.9, following the satisfaction of the applicable conditions set forth in Section 1.9, the amounts to which such holder would be entitled in respect thereof under Section 1.9 as if such shares never had been Dissenting Shares. The Company shall give Mercury Acquiror (i) prompt notice of any demands for appraisal or purchase received by Xxxxx for appraisal of Xxxxx Common Sharesthe Company, withdrawals of such demands demands, and any other instruments served pursuant to Delaware Law and received by the Xxxxx LLC Agreement Company and Section 262 of (ii) the DGCL and shall give Mercury the opportunity right to participate in direct all negotiations and proceedings with respect theretoto demands for appraisal or purchase under Delaware Law. Xxxxx The Company shall not, without except with the prior written consent of MercuryAcquiror, or as otherwise required under Delaware Law, voluntarily make any payment or offer to make any payment with respect to, or settle or offer to settle, any such demandsclaim or demand in respect of any Dissenting Shares. The payout of consideration under this Agreement to the Effective Time Holders (other than to holders of Dissenting Shares who shall be treated as provided in this Section 1.13 and under Delaware Law) shall not be affected by the exercise or potential exercise of dissenters’ rights under Delaware Law by any other stockholder of the Company.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect Dissenting Shares shall not be converted into the right to each Xxxxx Common Share to which receive the holder thereof would Merger Consideration but instead will be entitled to demand appraisal pursuant to only such rights as are granted by Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the . The holders of Xxxxx Common Dissenting Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, receive payment of the fair appraised value of the Xxxxx such Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any unless and until such holder of Xxxxx Dissenting Shares, under Shares fails to perfect or otherwise fails to comply with the circumstances permitted by and in accordance with provisions of Section 262 of the DGCL or effectively withdraws or waives or otherwise loses such holder’s rights to appraisal of such Dissenting Shares pursuant to Section 262 of the DGCL, affirmatively withdraws its demand for appraisal or a court of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is competent jurisdiction determines that such holder is not entitled to payment for its shares under the relief provided by Section 262 of the DGCL, . If any such holder of Dissenting Shares fails to perfect or holders (as otherwise fails to comply with the case may be) shall forfeit provisions of Section 262 of the DGCL or effectively withdraws or waives or otherwise loses such right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and pursuant to Section 262 of the DGCL or a court of competent jurisdiction determines that such Xxxxx Common holder is not entitled to the relief provided by Section 262 of the DGCL, such Dissenting Shares shall be deemed to be No Election Shares have been converted into, and converted into and represent only have become exchangeable for, as of the Company Merger Effective Time, the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)Merger Consideration, without any interest thereon, and shall not thereafter be deemed to be Dissenting Shares. Xxxxx The Company shall (i) give Mercury prompt Parent notice of any written demands received by Xxxxx for appraisal of Xxxxx Common Sharesshares of Company Stock, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall received by the Company with respect to the Dissenting Shares promptly after receipt by the Company and (ii) give Mercury Parent the opportunity opportunity, at Parent’s sole expense, to participate in and direct all negotiations and proceedings with respect theretoto such demands for appraisal pursuant to the DGCL in respect of such Dissenting Shares. Xxxxx The Company shall not, without except with the prior written consent of MercuryParent (which shall not be unreasonably withheld, conditioned or delayed), make any payment with respect to, or settle to any such demands for appraisal or offer to settlesettle or settle any such demands. Prior to the Closing, Parent shall not, except with the prior written consent of the Company (which consent shall have been approved by the Special Committee), require the Company to make any payment with respect to any such demands for appraisal or offer to settle or settle any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrarycontrary and to the extent available under the Dissenter’s Rights Statutes, with respect any share of JR Stock or Dakota Stock that is issued and outstanding immediately prior to each Xxxxx Common Share the Effective Time and that is held by a stockholder of JR or Dakota, respectively, who did not consent to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 or vote (by a valid and enforceable proxy or otherwise) in favor of the DGCLapproval of this Agreement, if Xxxxx were a Delaware corporation and the holders which stockholder of Xxxxx Common Shares were stockholders JR or Dakota, as applicable, complies with all of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 the NRS relevant to the exercise and perfection of dissenters’ rights, including all applicable prerequisites, requirements, qualifications, and procedures to perfect and maintain such rights under the DGCL Dissenter’s Rights Statutes in accordance therewith and have not withdrawn or otherwise forfeited their rights thereunder, (each, such share being a “Xxxxx Dissenting Share,” and such stockholder being a “Dissenting Stockholder”), if any, such holder shall be entitled to payment, solely from cancelled at the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is Effective Time but shall not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election consideration to which the holder of such share would be entitled pursuant to the terms hereof but rather shall be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Share pursuant to the Dissenter’s Rights Statutes. If any Dissenting Stockholder fails to perfect dissenters’ rights under the Dissenter’s Rights Statutes or effectively withdraws or otherwise loses such rights with respect to any Dissenting Shares, such Dissenting Shares shall thereupon automatically be converted into the right to receive the applicable Merger Consideration and/or pursuant to the Stock election Consideration in accordance with Section 2.3(c)terms of this Article III. Xxxxx Each party shall give Mercury the other prompt notice of any demands received by Xxxxx the first party for appraisal of Xxxxx Common Sharesor payment under the Dissenter’s Rights Statutes with respect to any JR Stock or Dakota Stock, as applicable, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL Dissenter’s Rights Statutes and shall give Mercury the other party the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall notNo party shall, without the prior written consent of Mercurythe other parties, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect shares of Company Capital Stock (the “Dissenting Shares”) that are issued and outstanding immediately prior to each Xxxxx Common Share to the Effective Date and which are held by Stockholders who did not execute the holder thereof would be Stockholder Consent and who are entitled to demand and properly demand appraisal of such Dissenting Shares pursuant to to, and who comply in all respects with, the provisions of Section 262 of the DGCLDGCL (the “Dissenting Stockholders”), if Xxxxx were a Delaware corporation and shall not be converted into or be exchangeable for the right to receive the applicable portion of the Net Merger Consideration hereunder but instead such holders shall be entitled to payment of Xxxxx Common Shares were stockholders the fair value of such corporation, and shall have properly demanded appraisal Dissenting Shares in compliance accordance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if anyand as of the Effective Date, such holder Dissenting Shares shall no longer be entitled outstanding and shall automatically be cancelled and shall cease to paymentexist, solely from and such holders shall cease to have any rights with respect thereto, except the Surviving Company, of right to receive the fair value of the Xxxxx such Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided), however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by unless and in accordance with the DGCL, affirmatively withdraws its demand for until such holders shall have failed to perfect or shall have effectively withdrawn or lost rights to appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL. If any Dissenting Stockholder shall have failed to perfect or shall have effectively withdrawn or lost such right, each of such holder or holders (holder’s shares of Company Capital Stock shall thereupon be treated as the case may be) shall forfeit if they had been converted into and become exchangeable for the right to appraisal receive, as of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive Effective Date, the Cash Election applicable portion of the Net Merger Consideration and/or the Stock election Consideration hereunder, in accordance with Section 2.3(c4.1(c), without any interest thereon. Xxxxx The Company shall give Mercury Parent (i) prompt notice of any written demands received by Xxxxx for appraisal of Xxxxx Common Sharesany shares of Company Capital Stock, attempted withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury received by the Company relating to Stockholders’ rights of appraisal, and (ii) the opportunity (to the extent reasonably practicable) to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without to demands for appraisal under the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demandsDGCL.

Dissenting Shares. Pursuant Notwithstanding anything to the Xxxxx LLC contrary contained in this Agreement, if any Securityholder makes a demand for appraisal of such Securityholder’s Shares in accordance with the holders of each Xxxxx Common Share are entitled DGCL (any such Shares being referred to rights of appraisal in the event of a merger of Xxxxx as “Dissenting Shares” until such time that would give rise such Securityholder fails to perfect or otherwise loses such Securityholder’s appraisal rights under the DGCL if Xxxxx were with respect to such Shares), the Dissenting Shares held by such Securityholder shall not be converted into or represent the right to receive Total Merger Consideration in accordance with this Article II (and Evolent shall, pending resolution of such demand, retain any amounts that would otherwise be paid to such holder of Dissenting Shares pursuant to this Article II), but shall be entitled only to such rights as are granted by the DGCL to a Delaware corporation and holder of Dissenting Shares. Subject to Section 9.2(e), following the Effective Time, the Surviving Entity shall be responsible to the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL. If any Dissenting Shares shall lose their status as such (through failure to perfect or otherwise), affirmatively withdraws its demand for appraisal then, as of the date of loss of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCLstatus, such holder or holders (as the case may be) shares shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall automatically be deemed to be No Election Shares and have been converted into as of the Effective Time and shall represent only the right to receive a portion of the Cash Election Consideration and/or the Stock election Total Merger Consideration in accordance with Section 2.3(cthis Article II, without interest thereon, upon delivery of (i) a Letter of Transmittal, executed and delivered by such Securityholder, together with any Certificates formerly representing the Shares held by such Securityholder (and, in the case of any lost or damaged Certificates formerly representing the Shares held by such Securityholder, an affidavit of lost or damaged certificate in respect thereof), and (ii) a Release, executed and delivered by such Securityholder. Xxxxx Evolent shall give Mercury the Securityholders’ Representative prompt notice of any demands for appraisal received by Xxxxx for appraisal of Xxxxx Common Sharesthe Surviving Entity, withdrawals of such demands demands, and any other similar instruments or notices served upon the Surviving Entity pursuant to the Xxxxx LLC Agreement DGCL, and Section 262 the Securityholders’ Representative shall be entitled to assume the negotiations, settlement and defense of the DGCL and shall give Mercury the opportunity any claims related to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demandsDissenting Shares.

Dissenting Shares. Pursuant No Person who has validly exercised such Person’s rights to dissent from the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal Merger pursuant to Section 262 238 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder Cayman Companies Law shall be entitled to payment, solely receive the Per Share Merger Consideration with respect to the Shares owned by such Person (“Dissenting Shares”) unless and until such Person shall have effectively withdrawn or lost such Person’s rights to dissent from the Surviving Company, Merger under the Cayman Companies Law. Each holder of Dissenting Shares issued and outstanding immediately prior to the Effective Time shall be entitled to receive only the payment of the fair value of the Xxxxx such Dissenting Shares to the extent permitted held by and them determined in accordance with the provisions of Section 262 238 of the DGCL; providedCayman Companies Law. The Company shall promptly give Parent (i) copies of notices of objection, howevernotices of dissent, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand written demands for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Sharesappraisal, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement Cayman Companies Law that are received by the Company relating to Company shareholders’ rights of appraisal and Section 262 of the DGCL and shall give Mercury (ii) the opportunity to participate in all negotiations and proceedings with respect theretoto any exercise of dissenter rights or demand for appraisal under the Cayman Companies Law. Xxxxx Any holders of Dissenting Shares who have effectively withdrawn or lost such holders’ rights to dissent from the Merger under the Cayman Companies Law shall have no further rights under Section 238 of the Cayman Companies Law, and Shares held by such holders shall thereupon not be Dissenting Shares and shall be cancelled as of the Effective Time in consideration for the right to receive Per Share Merger Consideration to which such holders are entitled, without any interest thereon, in accordance with Section 3.1(b). Prior to the Effective Time, the Company shall not, without except with the prior written consent of MercuryParent, voluntarily make any payment with respect toto the exercise of any rights to dissent from the Merger or any demands for appraisal, offer to settle or settle any such demands or offer to settle, approve any withdrawal of any such demands.

Dissenting Shares. Pursuant Voicestream Common Shares which are issued and outstanding immediately prior to the Xxxxx LLC AgreementEffective Time and which are held by a holder who has not voted such shares in favor of the Merger, the holders who shall have delivered a written demand for appraisal of each Xxxxx Common Share are entitled to rights of appraisal such shares in the event of a merger of Xxxxx that would give rise manner provided by Delaware Law and who shall not have effectively withdrawn or lost such right to appraisal rights under as of the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. AccordinglyEffective Time ("DISSENTING SHARES"), and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights (but only such rights) as are granted by Section 262 of the Delaware Law. Each holder of Dissenting Shares who becomes entitled to payment for such Dissenting Shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and Law shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCLDelaware Law; provided, however, that (ai) if any such holder of Dissenting Shares shall have failed to establish his entitlement to appraisal rights as provided in Section 262 of the Delaware Law, (ii) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its Shares shall have effectively withdrawn his demand for appraisal of such Xxxxx Dissenting Shares, Shares or lost his right to appraisal and payment for his Shares under Section 262 of the Delaware Law or (biii) if neither any holder of Xxxxx Dissenting Shares takes or fails to take any action nor the consequence Surviving Corporation shall have filed a petition demanding a determination of which is that the value of all Dissenting Shares within the time provided for the filing of such holder is not entitled to payment for its shares under petition in Section 262 of the DGCLDelaware Law, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and the holder of each such Xxxxx Common Shares Dissenting Share shall be deemed to have made a Mixed Election pursuant to Section 1.05(d) and each such Share shall be No Election Shares and converted into and represent only the right to receive the Cash Election Mixed Consideration and/or the Stock election Consideration in accordance with pursuant to Section 2.3(c1.05(d). Xxxxx Voicestream shall give Mercury DT prompt notice of any demands received by Xxxxx Voicestream for appraisal of Xxxxx Voicestream Common Shares, withdrawals of such demands Shares and any other instruments served pursuant DT shall have the right to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in conduct all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Except with the prior written consent of MercuryDT, Voicestream shall not make any payment with respect to, or settle or offer to settle, any such demands. To the extent holders of Dissenting Shares become entitled to DT Ordinary Shares or cash after the Effective Time, such DT Ordinary Shares and cash to which such holder of Dissenting Shares is entitled will be issued from the Dissenting Stockholder Trust described in Annex 1.12 (the "DISSENTING STOCKHOLDER TRUST").

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx share of Company Common Share Stock as to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance complied with the provisions of Section 262 of the DGCL as to appraisal rights (each, a “Xxxxx "Dissenting Share”"), if any, such holder shall be entitled to payment, solely from the Surviving CompanyCorporation, of the fair appraisal value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its his demand for appraisal of such Xxxxx Dissenting Shares, or (bii) if any holder of Xxxxx Dissenting Shares fails to establish his entitlement to appraisal rights as provided in the DGCL or (iii) if any holder of Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its his shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares of Company Common Shares Stock and such Xxxxx shares of Company Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and if such Xxxxx forfeiture shall occur following the Election Deadline, each such share of Company Common Shares Stock shall thereafter be deemed to be No Election Shares and have been converted into and represent only to have become, as of the Effective Time, the right to receive, without interest thereon, the Per Share Stock Consideration; provided that Parent shall be entitled to convert each such share into the right to receive the Per Share Cash Election Consideration and/or or a combination of the Per Share Cash Consideration and Per Share Stock election Consideration in accordance with if Parent shall have received an opinion from Skadden Arps stating that the Merger shall not fail to satisfy thx xxxxxxxxxx of interest requirement under Section 2.3(c)368 of the Code as a result thereof. Xxxxx The Company shall give Mercury Parent prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx shares of Company Common SharesStock, withdrawals of such demands and any other instruments served pursuant to Parent shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without the prior written consent of Mercurynot settle, make any payment payments with respect to, or settle or offer to settle, any such demandsclaim with respect to Dissenting Shares without the written consent of Parent.

Dissenting Shares. Pursuant Notwithstanding anything to the Xxxxx LLC Agreementcontrary herein, shares of Target Capital Stock issued and outstanding immediately prior to the holders of each Xxxxx Common Share are Effective Time and held by a Stockholder who is entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to and has properly exercised and perfected appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCLDelaware Law (collectively, the “Dissenting Shares”) shall not be converted as of the Effective Time into the right to receive any of the Merger Payment, if Xxxxx were a applicable, but instead shall have such rights as may be available under the Delaware corporation Law. At the Effective Time, all Dissenting Shares shall no longer be outstanding and shall be cancelled and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the holders of Xxxxx Common Shares were stockholders right to receive the fair value of such corporation, and shall have properly demanded appraisal Dissenting Shares in compliance accordance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCLDelaware Law; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, such Stockholder shall have failed to perfect or shall effectively withdraw or lose its right to appraisal and payment under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting SharesDelaware Law, or (b) if any holder a court of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is competent jurisdiction shall determine that such holder is not entitled to payment for its shares under the DGCLrelief provided by Section 262, such holder or holders (as the case may be) shall forfeit the right to appraisal stockholder’s shares of such Xxxxx Common Shares and such Xxxxx Common Shares Target Capital Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted as of the Effective Time into and represent only the right to receive the Cash Election Consideration and/or applicable portion of the Merger Payment pursuant to Section 1.5, if any, and such shares of Target Capital Stock election Consideration shall no longer be Dissenting Shares. Target shall give Purchaser prompt notice identifying those Stockholders who did not vote in favor of the Merger or consent thereto in writing. Promptly following Stockholder approval of the Merger, Purchaser or the Surviving Corporation shall prepare and deliver to the Stockholders all written notices required to be delivered in accordance with Section 2.3(c)Sections 228, 251 and 262 of the Delaware Law, in forms reasonably acceptable to the Agent. Xxxxx Prior to the Effective Time, (i) Target shall have the right to control the negotiations, proceedings and any settlement of any such demands, (ii) Target shall give Mercury Purchaser prompt notice of any demands received by Xxxxx Target for appraisal of Xxxxx Common Shares, withdrawals shares of such demands Target Capital Stock and any other instruments served pursuant to (iii) Purchaser shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations negotiations, proceedings and proceedings settlements with respect theretoto such demands. Xxxxx On and after the Effective Time, (a) Purchaser shall notgive the Agent prompt notice of any demands for appraisal received by the Surviving Corporation, (b) so long as (I) the Agent can demonstrate that it has sufficient amounts which may be used in connection with such demand for appraisal to (A) defend such demand for appraisal, and (B) defend all other demands for appraisal then pending which the Agent is defending pursuant to this Section 1.13 and defend all Third Party Claims then pending which the Agent is defending pursuant to Section 8.8, and (II) the Agent has acknowledged in writing to Purchaser the Sellers’ unconditional obligation to indemnify Purchaser for such demand for appraisal, the Agent shall have the right to control the negotiations, proceedings and any settlement of any such demands for appraisal; provided that the Agent shall not settle or compromise any such demand for appraisal without the prior written consent of MercuryPurchaser if pursuant to or as a result of such settlement, make such settlement would lead to Liability or create any payment financial or other obligation on the part of any Purchaser Protected Party for which such Purchaser Protected Party is not entitled to be indemnified pursuant to Section 8.3 and (c) Purchaser shall have the right to participate in all negotiations, proceedings and settlements with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect all Shares that are issued and outstanding immediately prior to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 Effective Time (other than the Excluded Shares) and held by holders who shall neither have voted in favor of the DGCL, if Xxxxx were a Delaware corporation Merger nor consented thereto in writing and the holders of Xxxxx Common Shares were stockholders of such corporation, and who shall have properly demanded and validly perfected, and not effectively withdrawn or lost, their statutory rights of appraisal in compliance respect of such Shares in accordance with the provisions of Section 262 of the DGCL (eachcollectively, a the “Xxxxx Dissenting ShareShares”)) shall not be converted into, if anyor represent the right to receive, such the Merger Consideration. At the Effective Time, the Dissenting Shares shall no longer be outstanding and shall automatically be cancelled and cease to exist, and each holder who holds any Dissenting Shares shall be entitled cease to paymenthave any rights with respect thereto, solely from except the Surviving Company, right to receive payment of the fair appraised value of the Xxxxx such Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; providedDGCL or, howeveron the terms of this Section 3.02, that (a) if any to receive payment of the Merger Consideration as provided in Section 3.01(a). Such holder of Xxxxx the Dissenting Shares shall be entitled only to such rights as are granted by the DGCL to a holder of the Dissenting Shares, under the circumstances permitted by unless and in accordance until such holder fails to comply with the DGCL, affirmatively provisions of Section 262 of the DGCL or effectively withdraws its demand for appraisal or otherwise loses such rights to receive payment of the fair value of such Xxxxx Dissenting Shares, holder’s Shares under Section 262 of the DGCL or (b) if any holder a court of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is competent jurisdiction determines that such holder is not entitled to payment for its shares under the appraisal provided by Section 262 of the DGCL. If, after the Effective Time, such holder of the Dissenting Shares fails to comply with the provisions of Section 262 of the DGCL or effectively withdraws or loses such right or if a court of competent jurisdiction determines that such holder is not entitled to the appraisal provided by Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Dissenting Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted at the Effective Time into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)Merger Consideration, without interest thereon. Xxxxx The Company shall give Mercury Parent prompt written notice of any written demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to Shares received by the Xxxxx LLC Agreement and Company under Section 262 of the DGCL, any withdrawal of any such demand and any other written demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the DGCL that relates to such demand, and shall give Mercury Parent the opportunity to participate in all negotiations and proceedings with respect theretoto any notices or demands for appraisal of any Shares. Xxxxx The Company shall not, without except with the prior written consent of MercuryParent, make any payment with respect to, or settle to any such demands for appraisal or offer to settle, settle or settle any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding (a) Notwithstanding anything in this Agreement to the contrary, with respect shares of Common Stock which are held by any record holder who does not vote in favor of the Merger or consent thereto in writing and who gives timely written notice to each Xxxxx Common Share to which the holder thereof would be entitled Company of intent to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and payment in accordance with the provisions of Section 262 55-13-21 of the DGCLNorth Carolina Statute, who demands payment and deposits share certificates in accordance with Section 55-13-23 of the North Carolina Statute and who otherwise perfects rights of appraisal under Article 13 of the North Carolina Statute (the "Dissenting Shares") shall not be converted into the right to receive the Merger Consideration but shall become the right to receive such consideration as may be determined to be due in respect of such Dissenting Shares pursuant to Article 13 of the North Carolina Statute; provided, however, that (a) if any holder of Xxxxx Dissenting Shares who shall have failed to perfect or shall have withdrawn or lost his rights to appraisal of such Dissenting Shares, in each case under the circumstances permitted by and in accordance with the DGCLNorth Carolina Statute, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares Dissenting Shares, and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted into and represent only the right to receive receive, as of the Cash Election Effective Time, the Merger Consideration and/or set forth in Section 1.06(b)(i), without interest. Notwithstanding anything to the Stock election Consideration contrary contained in accordance this Section 2.01, if (i) the Merger is rescinded or abandoned or (ii) if the shareholders of the Company revoke the authority to effect the Merger, then the right of any shareholder to be paid the fair value of such shareholder's Dissenting Shares shall cease. The Surviving Corporation shall comply with Section 2.3(c)all of its obligations under the North Carolina Statute with respect to holders of Dissenting Shares. Xxxxx (b) The Company shall give Mercury Parent (i) prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Sharesappraisal, and any withdrawals of such demands demands, received by the Company and any other related instruments served pursuant to the Xxxxx LLC Agreement North Carolina Statute and Section 262 of received by the DGCL Company, and shall give Mercury (ii) prior to the Effective Time, the opportunity to participate in all negotiations and proceedings with respect theretoto demands for appraisal under the North Carolina Statute. Xxxxx The Company shall not, without except with the prior written consent of MercuryParent, make any payment with respect to, or settle to any demands for appraisal or offer to settle, settle or settle any such demands.. 2.02

Dissenting Shares. Pursuant Notwithstanding Section 2.2, HG Shares issued and outstanding immediately prior to the Xxxxx LLC Effective Time and which are held by a holder who has not voted such shares in favor of the Merger by executing this Agreement, who shall have delivered a written demand for appraisal of such shares in the manner provided by the Delaware Law and who, as of the Effective Time, shall not have effectively withdrawn or lost such right to appraisal ("Dissenting Shares") shall not be converted pursuant to Section 2.2. The holders thereof shall be entitled only to such rights as are granted by Section 262 of each Xxxxx Common Share are the Delaware Law. Each holder of Dissenting Shares who becomes entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common payment for such Dissenting Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, Delaware Law shall receive payment therefor from the Surviving Corporation in accordance with the Delaware Law; provided however that (i) if Xxxxx were a Delaware corporation and the holders any such holder of Xxxxx Common Dissenting Shares were stockholders of such corporation, and shall have properly demanded failed to establish his entitlement to appraisal rights as provided in compliance with the provisions of Section 262 of the DGCL Delaware Law, (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (aii) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its Shares shall have effectively withdrawn his demand for appraisal of such Xxxxx Dissenting Shares, Shares or lost his right to appraisal and payment for his or her Dissenting Shares under Section 262 of the Delaware Law or (biii) if neither any holder of Xxxxx Dissenting Shares takes or fails to take any action nor the consequence Surviving Corporation shall have filed a petition demanding a determination of which is that such holder is not entitled to payment for its shares under the DGCLvalue of all Dissenting Shares within the time provided in Section 262 of the Delaware Law, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and each such Xxxxx Common Shares Dissenting Share shall be deemed treated as if it had been converted, as of the Effective Time, pursuant to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)2.2, as appropriate. Xxxxx HG shall give Mercury the Company prompt notice of any demands received by Xxxxx HG for appraisal of Xxxxx Common Shares, withdrawals of such demands HG Shares and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of Company shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant For purposes of this Agreement, “Proposed Dissenting Shares” means shares of LBI Common Stock whose holders provide notice of dissent to Company prior to the Xxxxx LLC AgreementLBI Shareholder Meeting and do not vote in favor of the Merger, in each case in accordance with § 4-27-1302 of the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. AccordinglyABCA, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share “Perfected Dissenting Shares” means Proposed Dissenting Shares as to which the holder holders thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”)taken all additional steps necessary to exercise their dissenters’ rights, if any, under § 4-27-1302 of the ABCA. Each outstanding Perfected Dissenting Share will be converted into the rights provided under the ABCA (and shall no longer be outstanding and shall automatically be cancelled and cease to exist as of the Effective Time), unless the holder thereof withdraws his or her demand for payment, in which case each such holder share (a “Withdrawn Dissenting Share”) shall be deemed to have been converted at the Effective Time into the right to receive from Purchaser the Merger Consideration, without any interest (and shall no longer be outstanding and shall automatically be cancelled and cease to exist as of the Effective Time). To the extent that a holder of Proposed Dissenting Shares fails to perfect such holder’s dissenters’ rights under the ABCA, such Proposed Dissenting Shares shall be treated as Withdrawn Dissenting Shares under this Agreement. Each holder of Perfected Dissenting Shares who becomes entitled to payment, solely from payment for his or her LBI Common Stock pursuant to the Surviving Company, provisions of the fair value of the Xxxxx ABCA shall receive payment for such Perfected Dissenting Shares to the extent permitted by and from Purchaser in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)ABCA. Xxxxx Company shall give Mercury Purchaser (i) prompt notice of any demands notice or demand for appraisal or payment for shares of LBI Common Stock received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands Company and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury (ii) the opportunity to participate in and direct all negotiations and proceedings with respect theretoto any such demand or notices. Xxxxx Company shall not, without the prior written consent of MercuryPurchaser, make any payment with respect to, or settle, offer for settle or offer to settle, otherwise negotiate any such demands. Perfected Dissenting Shares, Withdrawn Dissenting Shares and Proposed Dissenting Shares are collectively referred to herein as “Dissenting Shares.”

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, each Stockholder who does not vote or execute a written consent approving the Merger and who complies with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 all of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the relevant provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Stockholder” and with each Share held by any Dissenting Stockholder being a “Dissenting Share”)) will not have the right to receive payment pursuant hereto, if any, but instead and in lieu thereof will have the right to receive payment from Buyer with respect to such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to held by the extent permitted by and Dissenting Stockholder in accordance with the provisions of Section 262 of the DGCL; provided, howeverunless and until such holder has effectively withdrawn or lost such right under the DGCL. If any such Dissenting Stockholder has effectively withdrawn or lost such right, that then (a) if any holder of Xxxxx such Stockholder will no longer be deemed a Dissenting SharesStockholder, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting such holder’s Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx will no longer be deemed Dissenting Shares and (c) such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only holder thereafter will have the right to receive the Cash Election Consideration and/or amounts set forth next to such holder’s name on Exhibit 1.6 with respect to such holder’s Shares upon execution and delivery of a Joinder and Letter of Transmittal in respect of such Shares. If any Dissenting Stockholder prevails in a right to receive payment from Buyer with respect to such Dissenting Shares held by the Stock election Consideration Dissenting Stockholder in accordance with Section 2.3(c)262 of the DGCL, the Paying Agent shall, with respect to each Dissenting Share owned by such Dissenting Stockholder represented thereby, pay to the Buyer for payment to the Dissenting Stockholder in whose name such Dissenting Share is registered an amount per Dissenting Share (the “Dissenting Per Share Payment”) equal to the amount judicially determined to be due to such Dissenting Stockholder, up to the amounts set forth next to such Dissenting Stockholder’s name on Exhibit 1.6, by wire transfer of immediately available funds to the account specified in the Joinder and Letter of Transmittal with respect to such Shares. Xxxxx In the event the aggregate Dissenting Per Share Payment is greater than the amounts set forth next to such Dissenting Stockholder’s name on Exhibit 1.6, the balance of the Dissenting Per Share Payments due to such Dissenting Stockholder shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served be reimbursed to the Buyer pursuant to the Xxxxx LLC indemnification provisions of this Agreement and Section 262 for payment to the Dissenting Stockholder in whose name such Dissenting Shares are registered. In the event the Dissenting Per Share Payment is less than the Per Share Closing Consideration, the excess of the DGCL and Dissenting Per Share Payments shall give Mercury be distributed to the opportunity Sellers other than the Dissenting Stockholders in proportion to participate in all negotiations and proceedings with respect theretoeach such Seller’s Pro Rata Portion. Xxxxx Any costs or expenses related to any proceeding arising out of any Dissenting Share (including reasonable attorneys’ fees or expenses) shall not, without be shared equally by the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demandsParties.

Dissenting Shares. Pursuant to the Xxxxx LLC (a) For purposes of this Agreement, “Dissenting Shares” means (i) Company Shares held as of the holders Effective Time by a Company Stockholder who has not voted such Company Shares in favor of each Xxxxx Common Share are entitled to rights the adoption of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation this Agreement and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, GF Merger and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share which appraisal shall have been duly demanded and perfected in accordance with Chapter 13 of the California Corporations Code and not effectively withdrawn or forfeited prior to the Effective Time; and (i) ITD Shares held as of the Effective Time by an ITD Stockholder who has not voted such ITD Shares in favor of the adoption of this Agreement and the ITD Merger and with respect to which the holder thereof would be entitled to demand appraisal pursuant to shall have been duly demanded and perfected in accordance with Section 262 of the DGCL, if Xxxxx were a Delaware corporation GCL and not effectively withdrawn or forfeited prior to the holders Effective Time. Dissenting Shares shall not be converted into or represent the right to receive shares of Xxxxx Parent Common Shares were stockholders of Stock unless (i) such corporation, and Company Stockholder’s right to appraisal shall have properly ceased in accordance with Section 1309 of the California Corporations Code, or (ii) such ITD Stockholder’s right of appraisal shall have been duly demanded appraisal and perfected in compliance accordance with the provisions of Section 262 of the DGCL (eachGCL, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares and not effectively withdrawn or forfeited prior to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; providedEffective Time. If such Company Stockholder or ITD Stockholder has so forfeited or withdrawn his, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws her or its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of Dissenting Shares, then, (i) as of the occurrence of such Xxxxx Common Shares and event, such Xxxxx Common holder’s Dissenting Shares shall thereupon cease to constitute Xxxxx be Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration GF Merger Shares or ITD Merger Shares issuable in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice respect of any demands received by Xxxxx for appraisal of Xxxxx Common such Company Shares or ITD Shares, withdrawals respectively, pursuant to Section 1.5, and (ii) promptly following the occurrence of such demands and any other instruments served event, the Parent shall deliver to such Company Stockholder or ITD Stockholder a certificate representing 95% of such Merger Shares to which such holder is entitled pursuant to Section 1.5 (which shares shall be considered Initial Shares for all purposes of this Agreement) and shall deliver to the Xxxxx LLC Agreement and Section 262 Escrow Agent a certificate representing the remaining 5% of the DGCL and Merger Shares to which such holder is entitled pursuant to Section 1.5 (which shares shall give Mercury the opportunity to participate in be considered Escrow Shares for all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent purposes of Mercury, make any payment with respect to, or settle or offer to settle, any such demandsthis Agreement).

Dissenting Shares. Pursuant Notwithstanding Section 2.02, shares of Common Stock which are issued and outstanding immediately prior to the Xxxxx LLC AgreementEffective Time and which are held by a holder who has not voted such shares of Common Stock in favor of the Merger, who shall have delivered a written demand for appraisal of such shares of Common Stock in the manner provided by Delaware Law and who, as of the Effective Time, shall not have effectively withdrawn or lost such right to appraisal ("Dissenting Shares") shall not be converted into a right to receive the Merger Consideration. The holders thereof shall be entitled only to such rights as are granted by Section 262 of each Xxxxx Common Share are Delaware Law. Each holder of Dissenting Shares who becomes entitled to rights payment for such shares of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal Stock pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and Law shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCLDelaware Law; provided, however, that (ai) if any such holder of Xxxxx Dissenting SharesShares shall have failed to establish his entitlement to appraisal rights as provided in Section 262 of Delaware Law, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its (ii) if any such holder of Dissenting Shares shall have effectively withdrawn his demand for appraisal of such Xxxxx Dissenting Shares, Shares or lost his right to appraisal and payment for his shares of Common Stock under Section 262 of Delaware Law or (biii) if neither any holder of Xxxxx Dissenting Shares takes or fails to take any action nor the consequence Surviving Corporation shall have filed a petition demanding a determination of which is that such holder is not entitled to payment for its shares under the DGCLvalue of all Dissenting Shares within the time provided in Section 262 of Delaware Law, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares of Common Shares Stock and each such Xxxxx share of Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares Stock shall be deemed to be No Election Shares and converted treated as if it had been converted, as of the Effective Time, into and represent only the a right to receive the Cash Election Consideration and/or the Stock election Consideration Merger Consideration, without interest thereon, from Parent as provided in accordance with Section 2.3(c)2.02 hereof. Xxxxx The Company shall give Mercury Parent prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx shares of Common SharesStock, withdrawals of such demands and any other instruments served pursuant to Parent shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without except with the prior written consent of MercuryParent, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to If, in connection with the Xxxxx LLC AgreementMerger, the holders of each Xxxxx Common Share CDM Capital Stock, CDM Options or CDM Warrants are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL pursuant to Delaware Law or, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement only to the contraryextent applicable, Colorado Law, any Dissenting Shares shall not be converted into a right to receive shares of OmniVision Common Stock and cash as provided in Section 2.3(b), but shall be converted into the right to receive such consideration as may be determined to be due with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal such Dissenting Shares pursuant to Section 262 of the DGCLDelaware Law or, if Xxxxx were a Delaware corporation and only to the holders extent applicable, Colorado Law. Each holder of Xxxxx Common Dissenting Shares were stockholders of such corporationwho, and shall have properly demanded appraisal in compliance with pursuant to the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”)Delaware Law or, if anyand only to the extent applicable, such holder shall be Colorado Law, becomes entitled to payment, solely from the Surviving Company, payment of the fair value of the Xxxxx Dissenting Shares such shares shall receive payment therefor in accordance with Delaware Law or, if and only to the extent permitted by applicable, Colorado Law (but only after the value therefor shall have been agreed upon or finally determined pursuant to Delaware Law or, if and in accordance with only to the provisions extent applicable, Colorado Law). In the event that any CDM Securityholder eligible for appraisal rights fails to make an effective demand for payment or fails to perfect its appraisal rights as to its shares of Section 262 of the DGCL; providedCDM Capital Stock (or if applicable, howeverother CDM securities, if any, that (aentitled to appraisal rights under applicable law) if or any holder of Xxxxx Dissenting Shares shall otherwise lose their status as Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of then any such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall immediately be deemed to be No Election Shares and converted into and represent only the right to receive the consideration issuable pursuant to Articles 2 and 3 in respect of such shares as if such shares had never been Dissenting Shares, and OmniVision shall issue and deliver to the holder thereof, at (or as promptly as reasonably practicable after) the applicable time or times specified in Section 2.6, following the satisfaction of the applicable conditions set forth in Section 2.6, the shares of OmniVision Common Stock and cash, without interest thereon, to which such CDM Securityholder would have been entitled under Section 2.3(b) with respect to such shares, subject to the provisions of Section 2.3(b)(i) (regarding deductions from Initial Cash Election Consideration and/or payable to any CDM Securityholder equal to the Stock election aggregate exercise price of any outstanding and unexercised CDM Options held by him immediately prior to the Effective Time and not directly paid for in cash by such CDM Securityholder), Section 2.3(b)(ii) (regarding deductions from Initial Cash Consideration payable to any CDM Securityholder equal to the aggregate exercise price of any outstanding and unexercised CDM Warrant held by him immediately prior to the Effective Time and not directly paid for in accordance with cash by such CDM Warrantholder); Section 2.3(c2.3(b)(v) (regarding the delivery of cash in lieu of any fractional shares), Section 2.5 (regarding the Contingent Shares), the Put Right and any tax withholding obligations. Xxxxx CDM shall give Mercury OmniVision prompt notice (and in no event more than two business days) of any demands demand received by Xxxxx CDM for appraisal of Xxxxx Common SharesCDM Capital Stock or notice of exercise of a CDM Stockholder's appraisal rights, withdrawals of such demands and any other instruments served pursuant OmniVision shall have the right to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in control all negotiations and proceedings with respect theretoto any such demand. Xxxxx shall notCDM agrees that, without the except with OmniVision's prior written consent of Mercuryconsent, it shall not voluntarily make any payment or offer to make any payment with respect to, or settle or offer to settle, any such demandsdemand for appraisal.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementother provisions of this Article III, the holders Dissenting Shares shall not be converted into a right to receive any portion of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL to the extent that such rights were not waived by such holders by execution of the Stockholders Agreement. Each holder of Dissenting Shares who is entitled to exercise the rights granted by Section 262 of the DGCL pursuant to the immediately preceding sentence and who becomes entitled to payment for such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish such holder’s entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares share shall thereupon cease to not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall be deemed treated as if it had been a Common Share immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(c)this Article III, without any interest thereon. Xxxxx The Company shall give Mercury serve prompt notice to Buyer of any demands received by Xxxxx for appraisal of Xxxxx any Common Shares, attempted withdrawals of such notices or demands and any other instruments served pursuant received by the Company relating to rights to appraisal, and Buyer shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in and direct all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without the prior written consent of MercuryBuyer (not to be unreasonably withheld, conditioned or delayed), make any payment with respect to, settle or offer to settle, any such demands, and prior to the Effective Time, Buyer shall not, without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), make any payment with respect to, settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to If, in connection with the Xxxxx LLC AgreementMerger, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to Company Capital Stock shall have demanded and validly perfected appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 263 of Delaware Law, none of such Dissenting Shares shall be converted into a right to receive a portion of the DGCLTotal Closing Consideration, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”)Earn Out Payments, if any, or any other amount payable with respect to such holder Company Capital Stock in accordance with this Article II, but instead shall 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 provisions of Delaware Law, becomes entitled to payment, solely from the Surviving Company, payment of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and such 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 such stockholder’s appraisal rights as to such stockholder’s shares of Section 262 of the DGCL; providedCompany Capital Stock, however, that (a) if or any holder of Xxxxx Dissenting Shares shall otherwise lose their status as Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of then any such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall immediately be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election consideration issuable pursuant to this Article II in respect of such shares as if such shares had never been treated as Dissenting Shares, and Parent shall issue and deliver to the holder thereof, at (or as promptly as reasonably practicable after) the applicable time or times specified in Section 2.5, following the satisfaction of the applicable conditions set forth in Section 2.5, the portion of the Total Closing Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)and any other amounts, to which such Company Stockholder would have been entitled under this Article II. Xxxxx The Company shall give Mercury Parent (i) prompt notice of any demands demand received by Xxxxx the Company for appraisal of Xxxxx Common Shares, withdrawals Company Capital Stock or notice of such demands exercise of a Company Stockholder’s appraisal rights in accordance with Delaware Law and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury (ii) the opportunity to participate in direct all negotiations and proceedings with respect theretoto demands for appraisal rights under such law. Xxxxx shall notThe Company agrees that, without the except with Parent’s prior written consent of Mercuryconsent, it shall not make any payment or offer to make any payment with respect to, or settle or offer to settle, any such demandsexercise of appraisal rights.

Dissenting Shares. Pursuant Any shares of Panavision Common Stock issued and outstanding immediately prior to the Xxxxx LLC Agreement, Effective Time that are held by any holder who has not voted in favor of the holders of each Xxxxx Common Share are entitled to rights of Merger or consented thereto in writing and who shall have properly demanded and perfected appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx shares of Panavision Common Share to which the holder thereof would be entitled to demand appraisal Stock pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation DGCL (“Dissenting Shares”) shall not be converted into the right to receive the applicable portion of the Merger Consideration as determined pursuant to Section 3.1(d) and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with right to receive the provisions of Section 262 applicable portion of the DGCL (each, a “Xxxxx Dissenting Share”Panavision Contingent Shares as determined pursuant to Section 3.16(b), if any, such holder but instead shall be entitled to payment, solely receive such payment(s) from the Surviving Company, of the fair value of the Xxxxx Corporation with respect to such Dissenting Shares as shall be determined pursuant to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled shall have failed to perfect or shall have effectively withdrawn or otherwise lost such holder’s right to dissent and demand payment for its shares of fair value under the DGCL, each such share of Panavision Common Stock held by such holder or holders (shall thereupon be deemed to have been converted into, as of the case may be) shall forfeit Effective Time, the right to appraisal receive, without any interest thereon, the applicable portion of such Xxxxx Common Shares the Merger Consideration as determined pursuant to Section 3.1(d) and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive receive, without any interest thereon, the Cash Election Consideration and/or applicable portion of the Panavision Contingent Shares as determined pursuant to Section 3.16(b), and each such share of Panavision Common Stock election Consideration shall no longer be a Dissenting Share. Prior to the Closing, Panavision shall give prompt notice to Acquiror of any written demands received by Panavision for payment of the fair value (as determined in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice 262 of the DGCL) in respect of any demands received by Xxxxx for appraisal shares of Xxxxx Panavision Common Shares, Stock and attempted withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and received by Panavision, and Acquiror shall give Mercury have the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands to the extent permitted by applicable Law. Xxxxx Prior to the Closing, Panavision shall not, without except with the prior written consent of MercuryAcquiror, voluntarily make or agree to make any payment with respect toto any demands for appraisals of shares of Panavision Common Stock, offer to settle or settle any demands or offer to settle, approve any withdrawal of any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any other provisions of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect shares of Common Stock that are outstanding immediately prior to each Xxxxx Common Share to the Effective Time which the holder thereof would be entitled to demand appraisal pursuant to Section 262 are held by any stockholder who shall have not voted in favor of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and Merger or consented thereto in writing shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall not be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and or represent only the right to receive the Cash Election Consideration and/or Merger Consideration; provided, that any such stockholder shall have demanded appraisal for such shares (collectively, the "Dissenting Shares") in writing to the Company by following the procedures set forth in Sections 85 through 98 of the MBCL (the "Statutory Appraisal Provisions"). Although the Statutory Appraisal Provisions do not apply to a merger between a Massachusetts corporation and a Massachusetts limited liability company as a technical matter, the parties intend to confer upon the holders of Dissenting Shares the rights and remedies under the Statutory Appraisal Provisions on the same basis as if the Merger were between two Massachusetts corporations. Accordingly, the Statutory Appraisal Provisions are hereby incorporated by this reference and the provisions of this Section 2.5 are irrevocable and not subject to termination, modification or amendment. Such stockholders instead shall be entitled to receive payment of the appraised value of such shares of Common Stock election Consideration held by them in accordance with the procedures set forth in the Statutory Appraisal Provisions, except that all Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such shares of Common Stock in accordance with the procedures set forth in the Statutory Appraisal Provisions shall thereupon be deemed to have been converted into and to have become exchangeable, as of the Effective Time, for the right to receive, without any interest thereon, the Per Share Merger Consideration upon surrender in the manner provided in Section 2.3(c)2.2 of the Certificate or Certificates that, immediately prior to the Effective Time, evidenced such shares of Common Stock. Xxxxx The Company shall give Mercury Acquisition LLC (i) prompt notice of any demands received by Xxxxx for appraisal of Xxxxx shares of Common Shares, withdrawals of such demands Stock received by the Company and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury (ii) the opportunity to participate in and direct all negotiations and proceedings with respect theretoto any such demands. Xxxxx The Company shall not, without the prior written consent of MercuryAcquisition LLC, make any payment with respect to, or settle, offer to settle or offer to settleotherwise negotiate, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to ----------------- the contrary, holders (collectively, "Dissenting Shareholders") of (a) Class A ----------------------- Shares (collectively, "Class A Dissenting Shares") issued and outstanding ------------------------- immediately prior to the Effective Time who have (i) neither voted in favor of the Merger nor consented thereto in writing, (ii) delivered a written demand for appraisal of such Class A Dissenting Shares in the manner provided in the DGCL and (iii) as of the Effective Time, not effectively withdrawn or lost such right to appraisal and (b) Class B Shares (collectively, "Class B Dissenting Shares", ------------------------- and together with respect Class A Dissenting Shares, "Dissenting Shares") issued and ----------------- outstanding immediately prior to the Effective Time who have (i) delivered a written demand for appraisal of such Class B Dissenting Shares in the manner provided in DGCL and (ii) as of the Effective Time, not effectively withdrawn or lost such right to appraisal, in each Xxxxx Common Share case, shall be entitled only to which such rights as are granted by Section 262 of the holder thereof would DGCL and shall not be entitled to demand appraisal receive the Surviving Corporation Class B Common Stock and/or the Surviving Corporation Class A Common Stock pursuant to Section 2.1 hereof. Each Dissenting Shareholder who becomes entitled to payment for Dissenting Shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any holder such Dissenting Shareholder shall have failed to establish his or her entitlement to appraisal rights as provided in Section 262 of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its (ii) if any such Dissenting Shareholder shall have effectively withdrawn his or her demand for appraisal of such Xxxxx his or her Dissenting Shares, Shares or lost his or her right to appraisal and payment of his or her Dissenting Shares under Section 262 of the DGCL or (biii) if neither any holder Dissenting Shareholder nor the Surviving Corporation shall have filed a petition demanding a determination of Xxxxx the value of all Dissenting Shares takes or fails to take any action within the consequence time provided in Section 262 of which is that such holder is not entitled to payment for its shares under the DGCL, such holder Dissenting Shareholder or holders (as the case may be) Shareholders shall forfeit the right to appraisal of his or her Dissenting Shares, and each such Xxxxx Common Shares and such Xxxxx Common Shares Dissenting Share shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted have been converted, as of the Effective Time, into and represent only the right to receive from the Cash Election Consideration Surviving Corporation, the Surviving Corporation Class B Common Stock and/or the Surviving Corporation Class A Common Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands2.1 hereof.

Dissenting Shares. Pursuant Parent and Company do not believe that the provisions of Article 15 of the VSCA will be applicable to the Xxxxx LLC AgreementMerger. However, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event such Article becomes applicable, then notwithstanding any provision of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, any Shares outstanding immediately prior to the Effective Time that are held by a shareholder (a "Dissenting Shareholder") who has neither voted in favor of the adoption of this Agreement nor consented thereto in writing and who has demanded properly in writing appraisal for such Shares and otherwise properly perfected and not withdrawn or lost his or her rights (the "Dissenting Shares") in accordance with respect Article 15 of the VSCA will not be converted into, or represent the right to each Xxxxx Common Share to which receive, the holder thereof would Merger Consideration. Such Dissenting Shareholders will be entitled to demand appraisal pursuant to Section 262 receive payment of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair appraised value of the Xxxxx Dissenting Shares to the extent permitted held by and them in accordance with the provisions of Section 262 Article 15 of the DGCL; providedVSCA, however, except that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx all Dissenting Shares takes held by shareholders who have failed to perfect or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder who effectively have withdrawn or holders (as the case may be) shall forfeit the right lost their rights to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall pursuant to Article 15 of the VSCA will thereupon be deemed to be No Election Shares and have been converted into into, and represent only the right to receive receive, the Cash Election Consideration and/or the Stock election Merger Consideration in accordance with the manner provided in Article III and will no longer be Excluded Shares. Notwithstanding anything to the contrary contained in this Section 2.3(c3.2(g), if the Merger is rescinded or abandoned, then the right of any shareholder to be paid the fair value of such shareholder's Dissenting Shares pursuant to Article 15 of the VSCA will cease. Xxxxx shall The Company will give Mercury MergerCo prompt notice of any written demands received by Xxxxx for appraisal of Xxxxx Common Sharesappraisal, attempted withdrawals of such demands demands, and any other instruments served pursuant to applicable Law received by the Xxxxx LLC Agreement and Section 262 Company relating to shareholders' rights of the DGCL and shall appraisal. The Company will give Mercury MergerCo the opportunity to participate in and direct all negotiations and proceedings with respect theretoto demands for appraisal to the extent permitted by applicable Law. Xxxxx shall The Company will not, without except with the prior written consent of MercuryMergerCo or unless and to the extent required to do so under applicable Law, make any payment with respect toto any demands for appraisals of Dissenting Shares, offer to settle or settle any such demands or offer to settle, approve any withdrawal or other treatment of any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC AgreementIf required under Delaware Law or Indiana Law, the holders notwithstanding any other provisions of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, shares of any Target Company's Common Stock that are outstanding immediately prior to the Effective Time and which are held by shareholders who shall have not voted in favor of the Merger or consented thereto in writing and who shall have demanded properly, in writing, appraisal for such shares in accordance with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of Delaware Law or demand for payment in accordance with Chapter 44 of Indiana Law (IC 23-1-44) (collectively, the DGCL, if Xxxxx were a Delaware corporation and "DISSENTING SHARES") shall not be converted into or represent the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with right to receive the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder Merger Consideration. Such shareholders shall be entitled to payment, solely from the Surviving Company, receive payment of the fair appraised value of the Xxxxx Dissenting Shares to the extent permitted such shares of such Target Company's Common Stock held by and them in accordance with the provisions of Section 262 of the DGCL; providedDelaware Law and Chapter 44 of Indiana Law, however, except that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx all Dissenting Shares takes held by shareholders who have failed to perfect or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder who effectively have withdrawn or holders (as the case may be) shall forfeit the right lost their rights to appraisal of such Xxxxx shares of such Target Company's Common Shares Stock under Section 262 of Delaware Law and such Xxxxx Common Shares Chapter 44 of Indiana Law shall thereupon cease be deemed to constitute Xxxxx have been converted into and to have become exchangeable, as of the Effective Time, for the right to receive, without any interest thereon, the Merger Consideration, upon surrender, in the manner provided in Section 2.02, of the Certificate or Certificates that formerly evidenced such shares of such Target Company's Common Stock. Any payments required to be made to the holders of any Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only funded by Parent or the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)Surviving Corporation. Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect theretoARTICLE IIA VOTING RIGHTS AND PROXY THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. Xxxxx shall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands.REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx the extent that holders of Company Common Share Stock are entitled to which appraisal rights under Section 262 of the DGCL, any shares of Company Common Stock issued and outstanding immediately prior to the Effective Time and held by a holder thereof would who has properly exercised and perfected his, her or its demand for appraisal rights under Section 262 of the DGCL and not effectively withdrawn or lost such holder’s rights to appraisal (the “Dissenting Sharesˮ), shall not be converted into or represent the right to receive the Merger Consideration, but the holders of such Dissenting Shares shall instead be entitled to demand appraisal receive such consideration as may be determined pursuant to Section 262 of the DGCLDGCL (it being understood and acknowledged that at the Effective Time, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common such Dissenting Shares were stockholders of such corporationshall no longer be outstanding, shall automatically be canceled and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, cease to exist and such holder shall cease to have any rights with respect thereto other than the right to receive the consideration therefor as may be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and determined in accordance with the provisions of Section 262 of the DGCL); provided, however, that (a) if any such holder of Xxxxx Dissenting Sharesshall have failed to timely perfect or shall have waived, effectively withdrawn or lost his, her or its right to appraisal and payment under the circumstances permitted by and in accordance with DGCL (whether occurring before, at or after the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting SharesEffective Time), or (b) if any holder a court of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is competent jurisdiction shall have determined that such holder is not entitled to such right to appraisal and payment for its shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal holder’s shares of such Xxxxx Company Common Shares and such Xxxxx Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted as of the Effective Time into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)Merger Consideration, without any interest thereon, and such shares shall no longer be deemed to be Dissenting Shares. Xxxxx The Company shall give Mercury prompt notice to Parent of any demands received by Xxxxx for appraisal of Xxxxx any shares of Company Common SharesStock, effective or attempted withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement DGCL received by the Company relating to appraisal demands, and Section 262 of Parent shall have the DGCL and shall give Mercury the opportunity right to participate in all discussions, negotiations and proceedings Proceedings with respect theretoto such demands. Xxxxx Prior to the Effective Time, the Company shall not, without the prior written consent of MercuryParent, 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. Pursuant Notwithstanding the foregoing provisions of this Article 1, any eCivis Shares held by Persons who object to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance comply with the provisions of Section 262 the Delaware General Corporation Law concerning the rights of holders of eCivis Shares to dissent from the Merger and require appraisal of their eCivis Shares (“Dissenting Shares” and such Persons, “Dissenting Stockholders”) shall not be converted into a right to receive any portion of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder Merger Consideration and the holders thereof shall be entitled to payment, solely such rights as are granted by Delaware General Corporation Law. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to the Delaware General Corporation Law shall receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Company in accordance with the provisions of Section 262 of the DGCLDelaware General Corporation Law; provided, however, that (ai) if any such holder of Xxxxx Dissenting SharesShares shall have failed to establish such holder’s entitlement to TABLE OF CONTENTS​ appraisal rights as provided in the Delaware General Corporation Law, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under the DGCLDelaware General Corporation Law, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares share shall thereupon cease to not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall be deemed treated as if it had been a eCivis Share immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Company the portion of the Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(cthis Article 1, without any interest thereon (and such holder shall be treated as a eCivis Holder). Xxxxx The Company shall give Mercury provide GTY prompt written notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common eCivis Shares, withdrawals any withdrawal of any such demands demand and any other instruments served demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the Xxxxx LLC Agreement Delaware General Corporation Law that relates to such demand, and Section 262 of the DGCL and GTY shall give Mercury have the opportunity and right to participate in direct all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Without the prior written consent of MercuryGTY, the Company shall not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment. From and after the Effective Time, no stockholder of the Company who has properly exercised and perfected appraisal rights pursuant to the Delaware General Corporation Law shall be entitled to vote his or her eCivis Shares for any purpose or receive payment of dividends or other distributions with respect to his or her eCivis Shares (except dividends and distributions payable to stockholders of record at a date which is prior to the Effective Time).

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrarycontrary and to the extent available under the Cayman Companies Act, including Section 3.1, eLMTree Ordinary Shares issued and outstanding immediately prior to the Effective Time held by holders who have validly exercised, or have not otherwise lost, their dissenters’ rights for such eLMTree Ordinary Shares in accordance with this Section 3.3 and Section 238 of the Cayman Companies Act and otherwise complied with all of the provisions of the Cayman Companies Act relevant to the exercise and perfection of dissenters’ rights (such eLMTree Ordinary Shares being referred to collectively as the “Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s dissenter’s rights under the Cayman Companies Act with respect to each Xxxxx Common Share such eLMTree Ordinary Shares, and holders of the Dissenting Shares collectively, the “Dissenting Shareholders”) shall be cancelled and cease to which exist at the holder thereof would Effective Time and the Dissenting Shareholders shall not be entitled to demand appraisal pursuant to Section 262 of receive the DGCLPer Share Merger Consideration, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder but instead shall be entitled only to payment, solely from receive the Surviving Company, payment of the fair value of the Xxxxx such Dissenting Shares to the extent permitted held by and them determined in accordance with the provisions of Section 262 238 of the DGCLCayman Companies Act; provided, however, that (a) if if, after the Effective Time, any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or Shareholder fails to take any action validly exercise or perfect, withdraws or loses such holder’s right to appraisal pursuant to this Section 3.3 and Section 238 of the consequence Cayman Companies Act or if a court of which is competent jurisdiction shall determine that such holder Dissenting Shareholder is not entitled to payment for its shares under the DGCLrelief provided by Section 238 of the Cayman Companies Act, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common eLMTree Ordinary Shares shall be deemed treated as if they had been cancelled and ceased to be No Election Shares exist and they had been converted as of the Effective Time into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Per Share Merger Consideration, if any, to which such Dissenting Shareholder is entitled pursuant to Section 2.3(c)3.1, without interest thereon. Xxxxx Best Assistant shall give Mercury provide XXXX prompt written notice of any written objections to the Merger or other demands received by Xxxxx eLMTree for the exercise of dissenter rights in respect of the Merger or appraisal of Xxxxx Common ShareseLMTree Ordinary Shares according to the Cayman Companies Act, withdrawals any written withdrawal of any such demands objection or demand and any other instruments served written demand, notice or instrument delivered to eLMTree prior to the Effective Time pursuant to the Xxxxx LLC Agreement Cayman Companies Act that relates to such objection or demand, and Section 262 of the DGCL and XXXX shall give Mercury the opportunity be consulted with respect to participate in all material negotiations and proceedings with respect theretoto such objection or demands. Xxxxx shall not, without Except with the prior written consent of MercuryXXXX, eLMTree shall not make any payment with respect to, or settle or offer to settle, any such objection or demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provisions of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect Company Shares which are issued and outstanding immediately prior to each Xxxxx Common Share the Effective Time and which are held by a Company stockholder who has not voted such Company Shares in favor of the Merger, who shall have delivered a written demand for appraisal of such Company Shares in the manner provided by the DGCL and who, as of the Effective Time, shall not have effectively withdrawn or lost such right to which appraisal (the holder "Dissenting Shares") shall not be converted into a right to receive the Merger Consideration. The holders thereof would shall be entitled only to demand appraisal such rights as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such Company Shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish its entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws (ii) if any such holder of Dissenting Shares shall have effectively withdrawn its demand for appraisal of such Xxxxx Dissenting Shares, Company Shares or lost its right to appraisal and payment for its Company Shares under Section 262 of the DGCL or (biii) if neither any holder of Xxxxx Dissenting Shares takes or fails to take any action nor the consequence Surviving Corporation shall have filed a petition demanding a determination of which is that such holder is not entitled to payment for its shares under the value of all Dissenting Shares within the time provided in Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Company Shares and each such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares Company Share shall be deemed to be No Election Shares and converted treated as if such Company Share had been converted, as of the Effective Time, into and represent only the a right to receive the Cash Election Consideration and/or Merger Consideration, without interest thereon, from the Stock election Consideration Surviving Corporation as provided in accordance with Section 2.3(c)2.1. Xxxxx The Company shall give Mercury Newco prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Company Shares, withdrawals of such demands and any other instruments served pursuant to and, until the Xxxxx LLC Agreement and Section 262 of Effective Time, Newco shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without except with the prior written consent of MercuryNewco, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementforegoing provisions of this Article III, the holders Dissenting Shares shall not be converted into a right to receive any portion of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish such holder’s entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares share shall thereupon cease to not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall be deemed treated as if it had been a Common Share immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(c)this Article III, without any interest thereon. Xxxxx shall The Company will give Mercury Acquiror prompt notice of any demands all written notices received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served the Company pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL DGCL, and Acquiror shall give Mercury have the opportunity and right to participate in direct all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Without the prior written consent of MercuryAcquiror (which shall not be unreasonably withheld, conditioned or delayed), the Company shall not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment. From and after the Effective Time, no stockholder who has properly exercised and perfected appraisal rights pursuant to Section 262 of the DGCL shall be entitled to vote his or her shares of Common Stock for any purpose or receive payment of dividends or other distributions with respect to his or her shares of Common Stock (except dividends and distributions payable to stockholders of record at a date which is prior to the Effective Time).

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders (a) Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect shares of Company Capital Stock that are outstanding immediately prior to each Xxxxx Common Share to the First Merger Effective Time and which are held by Company Stockholders who did not vote in favor of the holder thereof would be First Merger or consent thereto in writing and who are entitled to demand and have properly exercised and perfected appraisal rights for such shares of Company Capital Stock pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporationto, and shall have properly demanded appraisal in compliance with accordance with, the provisions of Section 262 of the DGCL (eachcollectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive the Participating Holder Per Share Closing Consideration or Non-Participating Holder Per Share Closing Consideration, as the case may be, or the Additional Per Share Consideration, if any. Such Company Stockholders shall be entitled only to such rights as are granted by Section 262 of the DGCL to a “Xxxxx holder of Dissenting Share”)Shares, unless and until such Company Stockholders fail to perfect or effectively withdraw or otherwise lose their appraisal rights under the DGCL. At the First Merger Effective Time, the Dissenting Shares, if any, such will no longer be outstanding and will automatically be canceled and will cease to exist, and each holder shall be entitled of Dissenting Shares will cease to paymenthave any rights with respect thereto, solely from except the Surviving Company, of right to receive the fair value of the Xxxxx Dissenting Shares to the extent permitted by and such shares in accordance with the provisions of Section 262 of the DGCL; provided. Notwithstanding the foregoing, however, that (a) if any holder of Xxxxx all Dissenting Shares, under the circumstances permitted Shares held by and in accordance with the DGCL, affirmatively withdraws its demand for Company Stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their right to appraisal of such Xxxxx Dissenting Shares, or (b) if any holder shares of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares Company Capital Stock under the DGCLDGCL shall thereupon be deemed to have been converted into and to have become exchangeable for, such holder as of the First Merger Effective Time, the right to receive the Participating Holder Per Share Closing Consideration or holders (Non-Participating Holder Per Share Closing Consideration, as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares , plus any Additional Per Share Consideration, if any, without any interest thereon and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares less any applicable Tax withholding and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration any amounts deducted and/or the Stock election Consideration paid in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares2.9 through Section 2.13, withdrawals of such demands and any other instruments served pursuant to upon the Xxxxx LLC Agreement and Section 262 surrender of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall not, without the prior written consent certificate representing such shares of Mercury, make any payment with respect to, or settle or offer to settle, any such demandsCompany Capital Stock.

Dissenting Shares. Pursuant Notwithstanding Section 3.01(b) hereof, to the Xxxxx LLC Agreement, the extent that holders of each Xxxxx Common Share thereof are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under Article 5.12 of the DGCL if Xxxxx were TBCA, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time and held by a Delaware corporation holder who has properly exercised and perfected his or her demand for appraisal rights under Article 5.12 of the TBCA (the “Dissenting Shares”), shall not be converted into the right to receive the Merger Consideration, but the holders of Xxxxx Common such Dissenting Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, receive such consideration as shall be determined pursuant to Article 5.12 of the fair value TBCA (and at the Effective Time, such Dissenting Shares shall no longer be outstanding and shall cease to have any rights with respect thereto, except the right to receive such consideration as shall be determined pursuant to Article 5.12 of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCLTBCA); provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled shall have failed to payment for its shares under the DGCL, such holder perfect or holders (as the case may be) shall forfeit the have effectively withdrawn or lost his or her right to appraisal and payment under the TBCA, such holder’s shares of such Xxxxx Company Common Shares and such Xxxxx Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted as of the Effective Time into and represent only the right to receive the Cash Consideration without any interest thereon and such shares shall not be deemed to be Stock Election Shares or Dissenting Shares. Any payments required to be made with respect to the Dissenting Shares shall be made by the Surviving Corporation (and not the Company, Mergerco, New Holdco or either Parent) and the Aggregate Merger Consideration and/or shall be reduced, on a dollar for dollar basis, as if the Stock election Consideration in accordance with Section 2.3(c)holder of such Dissenting Shares had not been a shareholder on the Closing Date. Xxxxx The Company shall give Mercury prompt the Parents notice of any all demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of Parents shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto all holders of Dissenting Shares. Xxxxx The Company shall not, without except with the prior written consent of Mercurythe Parents, voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment from any holder of Dissenting Shares.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Microsource Shares that have not been voted for approval of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, and with respect to each Xxxxx Common Share to which the holder thereof would be entitled to a demand for payment and appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall will have been properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and made in accordance with the provisions of Section 262 Chapter 13 of the DGCL; provided, however, that California GCL (a"Dissenting Microsource Shares") if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is will not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Merger Consideration and/or at or after the Stock election Effective Time but will be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Microsource Shares pursuant to the laws of the State of California. If a holder of Dissenting Microsource Shares ("Dissenting Shareholder"), will withdraw his or her demand for such payment and appraisal or will become ineligible for such payment and appraisal, then, as of the Effective Time or the occurrence of such event of withdrawal or ineligibility, whichever last occurs, such holder's Dissenting Microsource Shares will cease to be Dissenting Microsource Shares and will be converted into the right to receive, and will be exchangeable for, the Merger Consideration in accordance with into which such Dissenting Microsource Shares would have been converted pursuant to Section 2.3(c)1.02(a) hereof. Xxxxx shall Microsource will give Mercury Giga-tronics prompt notice of any demands demand received by Xxxxx Microsource from a holder of Dissenting Microsource Shares for appraisal of Xxxxx Common Microsource Shares, withdrawals of such demands and any other instruments served pursuant to Giga-tronics will have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings Proceedings with respect theretoto such demand. Xxxxx shall notMicrosource agrees that, without except with the prior written consent of MercuryGiga-tronics, or as required under the California GCL, it will not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for appraisal. Each Dissenting Shareholder who, pursuant to the provisions of Chapter 13 of the California GCL, becomes entitled to payment of the value of the Dissenting Microsource Shares will receive payment therefor (but only after the value therefor will have been agreed upon or finally determined pursuant to such provisions). Any Merger Consideration which would have been issuable with respect to Dissenting Microsource Shares will be retained by Giga-tronics.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementforegoing provisions of this Article III, the holders Dissenting Shares shall not be converted into a right to receive any portion of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish such holder’s entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares and each such share shall not constitute a Dissenting Share and shall be treated as if it had been a Common Shares Share (and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares holder shall be deemed treated as a Pre-Closing Holder) immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(c)this Article III, without any interest thereon. Xxxxx shall The Company will give Mercury Buyer prompt notice of any demands all written notices received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served the Company pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL DGCL, and Buyer shall give Mercury have the opportunity and right to participate in direct all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Without the prior written consent of MercuryBuyer (which shall not be unreasonably withheld, conditioned or delayed), the Company shall not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment. From and after the Effective Time, no stockholder who has properly exercised and perfected appraisal rights pursuant to Section 262 of the DGCL shall be entitled to vote his or her shares of Common Stock for any purpose or receive payment of dividends or other distributions with respect to his or her shares of Common Stock (except dividends and distributions payable to stockholders of record at a date which is prior to the Effective Time).

Dissenting Shares. Pursuant Notwithstanding any other provision of this Agreement, shares of Xxxxxx Common Stock that are outstanding immediately prior to the Xxxxx LLC AgreementEffective Time and which are held by a holder of shares of Xxxxxx Common Stock who shall have (i) duly given written notice to Xxxxxx, prior to the holders taking of each Xxxxx Common Share are entitled the vote by Xxxxxx'x shareholders on approval of this Plan of Merger, of such holder's intent to rights dissent from the Merger and demand payment of appraisal the "fair value" of such shares in accordance with Sections 23-1-44 et seq. of the event Indiana Business Corporation Law (the "Dissenters' Rights Provisions"), (ii) not voted such shares in favor of a merger of Xxxxx that would give rise to appraisal the Merger, and (iii) not withdrawn, waived or otherwise lost or forfeited such holder's dissenter's rights under the DGCL if Xxxxx were a Delaware corporation Dissenters' Rights Provisions prior to the Effective Time (collectively, the "Dissenting Shares"), shall not be converted into or represent the right to receive any part of the Merger Consideration. Such Dissenting Shares shall instead be converted into the right to receive from the Surviving Corporation payment of the "fair value" thereof in accordance with the Dissenters' Rights Provisions, except that all Dissenting Shares held by holders who after the Effective Time shall have failed to perfect or who effectively shall have withdrawn, waived or otherwise lost or forfeited their dissenters' rights under such Dissenters' Rights Provisions shall thereupon be deemed to have been converted into and to become exchangeable, as of the holders Effective Time, for the right to receive, without any interest thereon, the appropriate part of Xxxxx Common Shares were stockholders of such corporation. Accordinglythe Merger Consideration, and notwithstanding anything upon surrender, in the manner provided in this Agreement Section 6, of the Certificate or Certificates that formerly evidenced such shares of Xxxxxx Common Stock. Upon application by the Surviving Corporation to the contraryExchange Agent therefor, accompanied by the Certificate or Certificates formerly evidencing Dissenting Shares and a certificate of the Surviving Corporation to the effect that there has been paid, or will be paid contemporaneously with respect the remittance to each Xxxxx Common Share the Surviving Corporation of the Merger Consideration otherwise allocable to such Dissenting Shares, the amount to which the holder thereof would is entitled, or has agreed with the Surviving Corporation to receive, as payment for such Dissenting Shares pursuant to the exercise of such holder's dissenters' rights, then the Exchange Agent shall remit to the Surviving Corporation that part of the Merger Consideration otherwise (but for the exercise of such dissenters' rights) allocable to such Dissenting Shares. In such event, remittance to the Surviving Corporation shall be a full acquittance of the Exchange Agent with respect thereto, and, to the extent such payment was not previously made, the holder of such Dissenting Shares shall look only to the Surviving Corporation for the payment to which such holder is entitled with respect to demand appraisal such Dissenting Shares.] * * * * * End of Plan of Merger EXHIBIT C FORM OF OPINION OF XXXXXX'X COUNSEL [Date] Oakwood Homes Corporation 0000 XxXxxxx Xxxx Greensboro, North Carolina 27409 Ladies and Gentlemen: We have acted as counsel to Xxxxxx Homes Corporation, an Indiana corporation (the "Company"), in connection with the transactions contemplated by the Acquisition Agreement dated January 5, 1997 (the "Agreement") between the Company, Oakwood Homes Corporation, a North Carolina corporation ("Oakwood"), and A & B Acquisition Corp., an Indiana corporation ("Merger Sub"). This opinion letter is delivered pursuant to Section 262 7.3(c) of the DGCLAgreement. All capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as are ascribed to them in the Agreement. As such counsel, if Xxxxx were a Delaware corporation we have examined originals or copies of the Agreement, the Articles of Merger and the holders Plan of Xxxxx Common Shares were stockholders Merger (all of such corporationdocuments being referred to collectively herein as the "Transaction Documents"). We have also examined the articles of incorporation and bylaws of the Company and each Xxxxxx Subsidiary, certified resolutions of the Board of Directors of the Company with respect to the transactions contemplated by the Transaction Documents, certificates of officers of the Company and public officials, and shall such other documents, and have properly demanded appraisal made such other investigations, as we have deemed necessary or appropriate for the purpose of giving the opinions herein expressed. As such counsel, we have participated in compliance with the provisions of Section 262 preparation of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, Transaction Documents and have consulted with officers of the fair value of Company concerning the Xxxxx Dissenting Shares to terms and provisions thereof and the extent permitted representations and warranties made by the Company therein. In giving the opinions expressed herein and making our investigations in accordance with the provisions of Section 262 of the DGCL; providedconnection herewith, however, that we have assumed (a) if any holder the due authorization, execution and delivery by the parties thereto other than the Company and the Xxxxxx Subsidiaries of Xxxxx Dissenting Sharesthe documents examined by us, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if the genuineness of all signatures of individuals, (c) the personal legal capacity of all individual signatories, (d) the authenticity of all documents presented to us as originals, (e) the conformity to the originals of all documents presented to us as copies, and (f) the integrity and completeness corporate minute books of the Company and each Xxxxxx Subsidiary presented to us for our examination. We have also assumed that the terms of the Transaction Documents have not been modified, supplemented or qualified by any holder other agreements or understandings (written or oral) of Xxxxx Dissenting Shares takes the parties thereto, or fails by any course of dealing or trade custom or usage, in any manner affecting the opinions expressed herein. Nothing has come to take any action our attention in the consequence course of which our representation of the Company in connection with the transactions contemplated by the Transaction Documents that would cause us to believe that the foregoing assumptions are unwarranted. We note that the Agreement provides that it is that to be governed by the laws of North Carolina. Our opinion herein as to the legality, validity, binding effect and enforceability of the Agreement is intended to address both the effectiveness under Indiana law of such holder choice of law provision and the legality, validity, binding effect and enforceability of the Agreement under Indiana and federal law were the Agreement, notwithstanding such provision, governed by the laws of the State of Indiana, and is not entitled intended to payment address matters of North Carolina law. We express no opinion herein concerning the possible application to the Transaction Documents, the transactions contemplated thereby, or the obligations of the parties thereunder of Section 548 of the Bankruptcy Code, 11 U.S.C. ss.548 or other similar laws relating to "fraudulent transfers" or "fraudulent conveyances." Opinions or statements herein given "to the best of our knowledge" and the factual matters on which we have relied in giving other opinions herein (except for its shares under our opinions as to corporate matters that we have given in reliance upon our own investigation of the DGCLCompany's corporate minute books and stock records and certificates of officers of the Company and public officials) are based upon (a) information coming to our attention in the course of our representation of the Company in connection with the transactions contemplated by the Transaction Documents, or otherwise actually known to the lawyers in our firm who have given substantive attention to such holder transactions, (b) the Company's representations and warranties contained in the Transaction Documents, and (c) inquiries of representatives of the Company whom we believe to be reasonably well informed as to the factual matters in question, but without any other investigations made for purposes of giving such opinions or holders (as statements unless otherwise stated herein. However, nothing has come to our attention in the case may be) shall forfeit course of our representation of the right Company in connection with the transactions contemplated by the Transaction Documents that would cause us to appraisal believe that our reliance thereon for purposes of such Xxxxx Common Shares opinions is unwarranted. Based upon and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant subject to the Xxxxx LLC Agreement foregoing and Section 262 of the DGCL further limitations and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall notqualifications hereinafter expressed, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands.it is our opinion that:

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx share of Company Common Share Stock as to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance complied with the provisions of Section section 262 of the DGCL as to appraisal rights (each, a “Xxxxx Dissenting Share”"DISSENTING SHARE"), if any, such holder shall be entitled to payment, solely from the Surviving CompanyCorporation, of the fair appraisal value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section section 262 of the DGCL; provided, however, that (ai) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its his demand for appraisal of such Xxxxx Dissenting Shares, or (bii) if any holder of Xxxxx Dissenting Shares fails to establish his entitlement to appraisal rights as provided in the DGCL or (iii) if any holder of Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its his shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares of Company Common Shares Stock and such Xxxxx shares of Company Common Shares Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and if such Xxxxx forfeiture shall occur following the Election Deadline, each such share of Company Common Shares Stock shall thereafter be deemed to be No Election Shares and have been converted into and represent only to have become, as of the Effective Time, the right to receive, without interest thereon, the Per Share Stock Consideration; provided that Parent shall be entitled to convert each such share into the right to receive the Per Share Cash Election Consideration and/or or a combination of the Per Share Cash Consideration and Per Share Stock election Consideration if (x) Parent shall have received an opinion from McDermott Will & Emery LLP xxx (x) the Compxxx xhall have received an opinion from Wachtell, Lipton, Rosen & Katz, in accordance with each case, xx the xxxect that the Merger will not fail to satisfy the continuity of interest requirement under Section 2.3(c)368 of the Code as a result thereof. Xxxxx The Company shall give Mercury Parent prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx shares of Company Common SharesStock, withdrawals of such demands and any other instruments served pursuant to Parent shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without the prior written consent of Mercurynot settle, make any payment payments with respect to, or settle or offer to settle, any such demandsclaim with respect to Dissenting Shares without the written consent of Parent.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, any issued and outstanding share of Matrix Capital Stock held by a Person (a “Dissenting Stockholder”) who has not voted in favor of or consented to the adoption of this Agreement and has complied with respect all the provisions of the DGCL concerning the right of holders of Matrix Capital Stock to each Xxxxx Common require appraisal of their shares of Matrix Capital Stock (“Dissenting Shares”) shall not be converted into the right to receive the Per Share Merger Consideration as described in Section 1.6(c), but shall become the right to which the holder thereof would receive such consideration as may be entitled determined to demand appraisal be due to such Dissenting Stockholder pursuant to the procedures set forth in Section 262 of the DGCL. If such Dissenting Stockholder withdraws its demand for appraisal or fails to perfect or otherwise loses its right of appraisal, if Xxxxx were a Delaware corporation and in any case pursuant to the holders DGCL, its shares of Xxxxx Common Shares were stockholders of such corporation, and Matrix Capital Stock shall have properly demanded appraisal in compliance with the provisions of Section 262 be deemed to be converted as of the DGCL (each, a “Xxxxx Dissenting Share”), if any, Effective Time into the right to receive the Per Share Merger Consideration for each such holder shall be entitled to payment, solely from the Surviving Company, share of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Matrix Capital Stock in accordance with the provisions of Section 262 of the DGCL; provided, however, this Agreement (it being understood that (a) if any holder of Xxxxx such Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively Stockholder withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take perfect or otherwise loses its right of appraisal, in any action the consequence of which is that such holder is not entitled case pursuant to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal its shares of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares Matrix Capital Stock shall be deemed to be No Election Shares and converted as of the Effective Time into and represent only the right to receive the Cash Election Merger Consideration and/or the Stock election Consideration in accordance with Section 2.3(cfor each such share of Matrix Capital Stock, without interest). Xxxxx At the Effective Time, any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the rights set forth in Section 262 of the DGCL and as provided in the previous sentence. Any payments required to be made with respect to the Dissenting Shares shall be made by the Surviving Corporation (and not by Immucor). Matrix shall give Mercury Immucor prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common SharesMatrix Capital Stock received by Matrix, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury Immucor the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx Matrix shall not, without the prior written consent of MercuryImmucor, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant Notwithstanding Section 2(d), shares of Company Common Stock which are issued and outstanding immediately prior to the Xxxxx LLC AgreementEffective Time and which are held by a Company Stockholder who has not voted such shares in favor of the Merger, who shall have delivered a written demand for appraisal of such shares in the manner provided by the Delaware General Corporation Law and who, as of the Effective Time, shall not have effectively withdrawn or lost such right to appraisal ("Dissenting Shares") shall not be converted into a right to receive the Merger Consideration. The holders thereof shall be entitled only to such rights as are granted by Section 262 of each Xxxxx Common Share are the Delaware General Corporation Law. Each holder of Dissenting Shares who becomes entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of payment for such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal shares pursuant to Section 262 of the DGCLDelaware General Corporation Law shall receive payment therefor from the Surviving Corporation in accordance with the Delaware General Corporation Law; PROVIDED, HOWEVER, that (i) if Xxxxx were a Delaware corporation and the holders any such holder of Xxxxx Common Dissenting Shares were stockholders of such corporation, and shall have properly demanded failed to establish his entitlement to appraisal rights as provided in compliance with the provisions of Section 262 of the DGCL Delaware General Corporation Law, (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (aii) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its Shares shall have effectively withdrawn his demand for appraisal of such Xxxxx Dissenting Shares, shares or lost his right to appraisal and payment for his shares under Section 262 of the Delaware General Corporation Law or (biii) if neither any holder of Xxxxx Dissenting Shares takes or fails to take any action nor the consequence Surviving Corporation shall have filed a petition demanding a determination of which is that such holder is not entitled to payment for its shares under the DGCLvalue of all Dissenting Shares within the time provided in Section 262 of the Delaware General Corporation Law, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares share shall be deemed to be No Election Shares treated as if it had been a Non-Stock Electing Share and converted had been converted, as of the Effective Time, into and represent only the a right to receive the Cash Election Consideration and/or Merger Consideration, without interest thereon, from the Stock election Consideration Surviving Corporation as provided in accordance with Section 2.3(c)2(d) hereof. Xxxxx The Company shall give Mercury AAC prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Sharesshares, withdrawals of such demands and any other instruments served pursuant to and, until the Xxxxx LLC Agreement and Section 262 of Effective Time, AAC shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without except with the prior written consent of MercuryAAC, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrarycontrary but only to the extent required by the CCC, each share of Island Capital Stock outstanding immediately prior to the Effective Time held by a Stockholder who has (i) properly demanded that the Company purchase such shares of Island Capital Stock for fair market value in accordance with, and otherwise complied with respect to each Xxxxx Common Share to which and perfected such holder’s rights under, the holder thereof would be entitled provisions of Chapter 13 of the CCC, and (ii) not effectively withdrawn or lost such holder’s rights to demand appraisal purchase for such shares of Island Capital Stock for fair market value pursuant to Chapter 13 of the CCC (such shares, “Dissenting Shares”) shall not be converted pursuant to Section 262 of 2(f)(i) through (iii) into the DGCLright to receive the applicable Per Share Merger Consideration (it being understood and acknowledged that (A) at the Effective Time, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common such Dissenting Shares were stockholders of such corporationshall no longer be outstanding, shall automatically be cancelled, and shall cease to exist, and such holder shall cease to have properly demanded appraisal any rights with respect thereto other than the right to receive the fair market value of such Dissenting Shares as determined in compliance accordance with the provisions of Section 262 Chapter 13 of the DGCL CCC, and (each, a “Xxxxx Dissenting Share”), if any, such holder B) the Company shall be entitled to paymentretain or receive all of the applicable Per Share Merger Consideration to which each such Dissenting Share would have been entitled pursuant to Section 2(f)(i) through (iii) had such shares of Island Capital Stock not been Dissenting Shares), solely from the Surviving Company, unless such holder fails to perfect or otherwise effectively withdraws or loses such holder’s right to receive payment of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx such Dissenting Shares. If, under after the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCLEffective Time, such holder fails to perfect or holders (loses its right to demand or receive such payment, any such share of Island Capital Stock shall be treated as if they had been converted as of the case may be) shall forfeit Effective Time into the right to appraisal receive, subject to the Stockholder’s delivery of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration a Letter of Transmittal in accordance with Section 2.3(c2(h), the applicable Per Share Merger Consideration, without interest thereon, pursuant to Section 2(f)(i) through (iii). Xxxxx Island shall give Mercury the Company prompt notice of any demands received by Xxxxx Island for appraisal payment of Xxxxx Common Shares, withdrawals any shares of such demands and any other instruments served Island Capital Stock pursuant to the Xxxxx LLC Agreement and Section 262 Chapter 13 of the DGCL CCC, and the Company shall give Mercury have the opportunity right to participate in direct all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Except with the prior written consent of Mercurythe Company, Island shall not make any payment with respect to, or offer to settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect shares of Company Common Stock issued and outstanding immediately prior to each Xxxxx Common Share to which the holder thereof would be First Merger Effective Time and held by a Company Stockholder entitled to demand appraisal vote in respect of such shares of Company Common Stock who has not voted in favor of the Merger or consented thereto in writing pursuant to Section 262 228 of the DGCL, if Xxxxx were a Delaware corporation DGCL and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have has properly demanded appraisal for such shares in compliance with the provisions of accordance with, and who complies in all respects with, Section 262 of the DGCL (eachsuch shares, a “Xxxxx Dissenting ShareShares”), if any, such holder shall not be converted into the right to receive the Closing Merger Consideration and shall instead be entitled to payment, solely from the Surviving Company, receive payment of the fair appraised value of the Xxxxx such Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided. At the First Merger Effective Time, however, that (a) if all Dissenting Shares shall be cancelled, extinguished and cease to exist and (b) the holders of Dissenting Shares shall be entitled to only such rights as may be granted to him, her or it under the DGCL. If any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance Shares fails to perfect or otherwise fails to comply with the DGCLprovision of Section 262 of the DGCL or otherwise effectively waives, affirmatively withdraws its demand for or loses such holder’s right to appraisal under Section 262 of such Xxxxx Dissenting Shares, the DGCL or (b) if any holder a court of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that competent jurisdiction shall determine such holder is not entitled to payment for its shares under the relief provided by Section 262 of the DGCL, then the right of such holder or holders (as to be paid the case may be) shall forfeit the right to appraisal appraised value of such Xxxxx Common Dissenting Shares under Section 262 of the DGCL shall cease and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares have been converted, as of the First Merger Effective Time, into, and converted into and represent only to have become exchangeable for the right to receive the Cash Election Closing Merger Consideration and/or upon the Stock election Consideration surrender of such shares in accordance with Section 2.3(c)this Article III and thereafter shall not be deemed to be Dissenting Shares. Xxxxx The Company shall give Mercury Acquiror reasonably prompt notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Sharesshares of Company Stock, attempted withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and received by the Company relating to rights to be paid the appraised value of Dissenting Shares, and Acquiror shall give Mercury have the opportunity right to participate in and direct all negotiations and proceedings with respect theretoto such demands. Xxxxx Prior to the First Merger Effective Time, the Company shall not, without except with the prior written consent of MercuryAcquiror (such consent not to be unreasonably withheld, conditioned or delayed), 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. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any other provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Merger Agreement to the contrary, with respect shares of First Lancaster Common Stock that are outstanding immediately prior to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 Effective Time and that are held by stockholders who shall have not voted in favor of the DGCL, if Xxxxx were Merger or consented thereto in writing and who properly shall have delivered to First Lancaster a Delaware corporation and the holders of Xxxxx Common Shares were stockholders written demand for appraisal of such corporation, and shall have properly demanded appraisal shares in compliance accordance with the provisions of Section 262 of the DGCL (eachcollectively, a “Xxxxx the "Dissenting Share”), if any, such holder Shares") shall not be converted into or represent the right to receive the Consideration. Such stockholders instead shall be entitled to payment, solely from the Surviving Company, receive payment of the fair value of the Xxxxx Dissenting Shares to the extent permitted such shares held by and them in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx except that all Dissenting Shares takes held by stockholders who shall have failed to perfect or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares who effectively shall have withdrawn or otherwise lost their dissenters' rights under the DGCLDGCL shall thereupon be deemed to have been converted into and to have become exchangeable, such holder or holders (as of the case may be) shall forfeit Effective Time, for the right to appraisal receive, without any interest thereon, the Consideration upon surrender in the manner provided in Section 2.3, of the Certificate(s) (as hereinafter defined) of First Lancaster that, immediately prior to the Effective Time, evidenced such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)shares. Xxxxx First Lancaster shall give Mercury CKF Bancorp (i) prompt notice of any written demands received by Xxxxx for appraisal of Xxxxx the fair value of any shares of First Lancaster Common SharesStock, attempted withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury received by First Lancaster relating to stockholders' rights of appraisal, and (ii) the opportunity to participate in direct all negotiations and proceedings with respect theretoto demands for appraisal under the DGCL, provided that CKF Bancorp shall keep First Lancaster fully informed as to the substance of all such negotiations and proceedings. Xxxxx First Lancaster shall not, without except with the prior written consent of MercuryCKF Bancorp, voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for appraisal. Notwithstanding any other provision of this Merger Agreement, any Dissenting Shares shall not, after the Effective Time, be entitled to vote for any purpose or receive any dividends or other distributions and shall be entitled only to such rights as are afforded in respect of Dissenting Shares pursuant to the DGCL.

Dissenting Shares. Pursuant to the Xxxxx LLC Laxxx XLC Agreement, the holders of each Xxxxx Common Laxxx Xommon Share are entitled to rights of appraisal in the event of a merger of Xxxxx that Laxxx xhat would give rise to appraisal rights under the DGCL if Xxxxx were Laxxx xere a Delaware corporation and the holders of Xxxxx Common Laxxx Xommon Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Laxxx Xommon Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were Laxxx xere a Delaware corporation and the holders of Xxxxx Common Laxxx Xommon Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Laxxx Xissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Laxxx Xissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Laxxx Xissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Laxxx Xissenting Shares, or (b) if any holder of Xxxxx Dissenting Laxxx Xissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Laxxx Xommon Shares and such Xxxxx Common Laxxx Xommon Shares shall thereupon cease to constitute Xxxxx Dissenting Laxxx Xissenting Shares and such Xxxxx Common Laxxx Xommon Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall Laxxx xhall give Mercury prompt notice of any demands received by Xxxxx for Laxxx xor appraisal of Xxxxx Common Laxxx Xommon Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Laxxx XLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx shall Laxxx xhall not, without the prior written consent of Mercury, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementforegoing provisions of this Article III, the holders of each Xxxxx Common Share are entitled Dissenting Shares shall not be converted into a right to rights of appraisal in receive the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish such holder’s entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx shares and each such share shall not constitute a Dissenting Share and shall be treated as if it had been a Common Shares Share (and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares holder shall be deemed treated as a Pre-Closing Holder) immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(c)this Article III, without any interest thereon. Xxxxx The Company shall give Mercury serve prompt notice to Acquiror of any demands received by Xxxxx for appraisal of Xxxxx Common any Dissenting Shares, attempted withdrawals of such notices or demands and any other instruments served pursuant received by the Company relating to rights to appraisal, and Acquiror shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in and direct all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without the prior written consent of MercuryAcquiror, make any payment with respect to, or settle or offer to settle, or approve any withdrawal of any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 shares of Woodward-Clyde Stock that are issued and outstanding immediately prxxx xx xxx Xxxective Time of the DGCL, if Xxxxx were a Delaware corporation Merger and the holders of Xxxxx Common Shares were that are held by stockholders of who have not voted such corporation, and shall have properly demanded appraisal shares in compliance with the provisions of Section 262 favor of the DGCL (each, Merger and who have delivered a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its written demand for appraisal of such Xxxxx shares in the manner provided in Section 262 of the Delaware Law ("Dissenting Shares") shall not be canceled and converted into shares of URS Common Stock in accordance with Section 2.1 above unless and until such holder shall have failed to perfect, or (b) if any holder of Xxxxx Dissenting Shares takes shall have effectively withdrawn or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCLlost, such holder or holders (as the case may be) shall forfeit the holder's right to appraisal and payment under the Delaware Law. If such stockholder shall have so failed to perfect, or shall have effectively withdrawn or lost such right, such holder's shares of such Xxxxx Common Shares and such Xxxxx Common Shares Woodward-Clyde Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares have been canceled xxx xxxxxxxxx as described in Section 2.1 at the Effective Time of the Merger, and converted into and each such share shall represent only solely the right to receive the Cash Election Consideration and/or the shares of URS Common Stock election Consideration and cash in accordance with Section 2.3(c)2.1. Xxxxx Woodward-Clyde shall give Mercury URS prompt notice of any demands received by Xxxxx Xxxxxxxx-Xxxxe for appraisal of Xxxxx Common Sharesits shares, withdrawals of such demands and any other instruments served pursuant and, prior to the Xxxxx LLC Agreement and Section 262 of Effectivx Xxxx xx xxx Merger, URS shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx Prior to the Effective Time of the Merger, Woodward-Clyde shall not, without except with the prior written consent of MercuryURS, make any payment xxxx xxx xxxment with respect to, or settle or offer to settle, any such demands. From and after the Effective Time of the Merger, no stockholder of Woodward-Clyde who has demanded appraisal rights as provided in Sectxxx 000(x) xx the Delaware Law shall be entitled to vote such holder's shares of Woodward-Clyde Stock for any purpose or to receive payment of dividendx xx xxxxx xxstributions with respect to such holder's shares (except dividends and other distributions payable to stockholders of record at a date which is prior to the Effective Time of the Merger).

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect Cardo Units which are issued and outstanding immediately prior to each Xxxxx Common Share to the Effective Time and which are held by Cardo Members properly exercising dissenter’s rights available under the holder thereof would be entitled to demand appraisal pursuant to Section 262 of Dissenter’s Act (the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Cardo Dissenting ShareUnits”), if any, such holder ) shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit converted into the right to appraisal of such Xxxxx Common Shares receive payment from Surviving Entity with respect thereto and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall not be deemed to be No Election Shares and converted into and represent only or be exchangeable for the right to receive the Cash Election Consideration and/or shares of Parent Common Stock unless and until such holders shall have failed to perfect or shall have effectively withdrawn or lost their rights to appraisal under the Stock election Consideration Dissenter’s Act. Cardo Dissenting Units shall be treated in accordance with Section 2.3(c)the Dissenter’s Act. Xxxxx If any such holder shall have failed to perfect or shall have effectively withdrawn or lost such right to appraisal, such holder’s Cardo Units shall thereupon be converted into and become exchangeable only for the right to receive, as of the Effective Time, shares of Parent Common Stock in accordance with the terms of this Article III. Cardo shall give Mercury Parent: (a) prompt notice of any written demands received by Xxxxx for appraisal of Xxxxx Common Sharesany Cardo Units, attempted withdrawals of such demands and any other instruments instruments, served pursuant to the Xxxxx LLC Agreement Dissenter’s Act and Section 262 received by Cardo relating to rights to be paid the “fair value” of Cardo Dissenting Units, as provided in the DGCL Dissenter’s Act; and shall give Mercury (b) the opportunity to participate in in, and after the Closing, direct, all negotiations and proceedings Proceedings with respect theretoto demands for appraisal under the Dissenter’s Act. Xxxxx Cardo shall not, without except with the prior written consent of MercuryParent, voluntarily make or agree to make any payment with respect toto any demands for appraisals of Cardo Units. Cardo or Surviving Entity, or settle or offer to settleas applicable under the Dissenter’s Act, any shall comply with all notice requirements under such demandsDissenter’s Act.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementforegoing provisions of Article III and this Article IV, the holders Dissenting Shares shall not be converted into a right to receive any portion of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Merger Consideration and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely such rights as are granted by Section 13.1‑730 of the VSCA. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to Section 13.1‑730 of the VSCA shall receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCLVSCA; provided, however, that (ai) if any such holder of Xxxxx Dissenting SharesShares shall have failed to establish such holder’s entitlement to appraisal rights as provided in Section 13.1‑730 of the VSCA, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder’s demand for appraisal of such Xxxxx Dissenting Shares, shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 13.1‑730 of the DGCLVSCA, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares share shall thereupon cease to not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall be deemed treated as if it had been a Common Share immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the a right to receive from the Cash Election Surviving Corporation the portion of the Corp Merger Consideration and/or the Stock election Consideration deliverable in respect thereof as determined in accordance with Section 2.3(cArticle II, as set forth on the Allocation Schedule, without any interest thereon (and such holder shall be treated as a Pre‑Closing Holder). Xxxxx shall CMP will give Mercury prompt Buyer reasonable notice of any demands all written notices received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served CMP pursuant to the Xxxxx LLC Agreement and Section 262 13.1‑733 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect theretoVSCA. Xxxxx shall not, without Without the prior written consent of MercuryBuyer (which shall not be unreasonably withheld, conditioned or delayed), CMP shall not voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment. From and after the Effective Time, no Stockholder who has properly exercised and perfected appraisal rights pursuant to Section 13.1‑735.1 of the VSCA shall be entitled to vote his or her shares of Common Stock for any purpose or receive payment of dividends or other distributions with respect to his or her shares of Common Stock (except dividends and distributions payable to stockholders of record at a date which is prior to the Effective Time).

Dissenting Shares. Pursuant (a) Notwithstanding Section 3.1, no outstanding shares of CCI Common Stock shall be converted into or represent a right to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled receive any Acquisition Shares pursuant to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL Section 3.1 hereof if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to has demanded and perfected his demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, for payment of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and his CCI Capital Stock in accordance with the applicable provisions of Section 262 Article 13 of the DGCL; provided, however, that Georgia Code (athe "GEORGIA DISSENTER'S STATUTES") if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, has not effectively withdrawn or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the lost his right to appraisal such payment. All such shares of such Xxxxx Common Shares and such Xxxxx Common Shares CCI Capital Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right rights granted with respect to receive such shares pursuant to the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)Georgia Dissenter's Statutes. Xxxxx CCI shall give Mercury prompt notice to MIOA upon receipt by CCI of any written demands received by Xxxxx for appraisal payment of Xxxxx the fair value of CCI Common Shares, Stock and of withdrawals of such demands and any other instruments served written communications provided in accordance with or pursuant to the Xxxxx LLC Agreement and Section 262 of Georgia Dissenter's Statutes (any stockholder duly making such a demand being hereinafter called a "CCI Dissenting Stockholder"). MIOA shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto any CCI Dissenting Stockholder. Xxxxx shall CCI agrees that it will not, without except with the prior written consent of MercuryMIOA, make any determination of fair value or any payment with respect to, or settle or offer to settlesettle any matter arising out of, any dissent. Each CCI Dissenting Stockholder, if any, who becomes entitled to payment for his shares of CCI Capital Stock pursuant to the Georgia Dissenter's Statutes shall receive payment therefore from MIOA (but only after the amount thereof shall have been agreed upon or finally determined pursuant to the Georgia Dissenter's Statutes and such demandsdissenting shares of CCI Capital Stock shall be canceled and shall not be entitled to receive any Acquisition Shares. If any holder of the shares of CCI Capital Stock who demands payment of the fair value of his shares under the Georgia Dissenter's Statute shall effectively withdraw or lose (through failure to perfect or otherwise) his right to such payment at any time, the shares of CCI Capital Stock of such holder shall be converted into a right to receive the Acquisition Shares set forth in Section 3.1 hereof.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding (a) Notwithstanding anything in this Agreement to the contrary, if any stockholder of ESS Delaware Common Stock (each, a “Dissenting Stockholder”) shall demand to be paid the “fair value” of its shares of ESS Delaware Common Stock (“Dissenting Share”), as provided in Section 262(d)(2) of the DGCL, such Dissenting Shares shall not be converted into or exchangeable for the right to receive the Merger Consideration (except as provided in this Section 4.3) and shall entitle such Dissenting Stockholder only to be paid the “fair value” of such Dissenting Shares, in accordance with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation unless and the holders of Xxxxx Common Shares were stockholders of until such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL Dissenting Stockholder (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and a) withdraws (in accordance with Section 262(k) of the provisions DGCL) or (b) effectively loses the right to dissent and receive the “fair value” of such Dissenting Shares under Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c). Xxxxx shall give Mercury prompt notice of any demands received by Xxxxx for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity to participate in all negotiations and proceedings with respect thereto. Xxxxx ESS Delaware shall not, without except with the prior written consent of MercuryParent, voluntarily make any payment with respect to, or settle or offer to settle, any such demandsdemand for payment of “fair value” of Dissenting Shares prior to the Effective Time of the Merger. ESS Delaware shall give Parent prompt notice of any written demand by a Dissenting Stockholder to be paid the “fair value” of its Dissenting Shares received by ESS Delaware prior to the Effective Time of the Merger, any attempted withdrawals of such demands and any other instruments received by ESS Delaware relating to stockholders’ rights of appraisal, and Parent shall have the right to participate in all negotiations and proceedings with respect to any such demand or instrument. If any Dissenting Stockholder shall have effectively withdrawn (in accordance with Section 262(k) of the DGCL) or otherwise lost its right to dissent and receive the “fair value” of its Dissenting Shares, then as of the later of the Effective Time of the Merger or the occurrence of such event, the Dissenting Shares held by such Dissenting Stockholder shall be cancelled and converted into and represent solely the right to receive (upon the surrender of the Certificate representing such share) the Merger Consideration, without interest thereon, in accordance with Section 4.1.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect any Shares (other than any Shares to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal cancelled pursuant to Section 262 2.07(b) and 2.07(c)) outstanding immediately prior to the Effective Time and held by a holder who (a) has not voted in favor of the DGCLMerger or consented to it in writing, if Xxxxx were and (b) has properly demanded the appraisal of such Shares in accordance with, and has complied in all respects with, Michigan Law (“Dissenting Shares”), shall not be converted into or be exchangeable for the right to receive a Delaware corporation portion of the Final Merger Consideration unless and until such holder effectively withdraws or loses such holder’s right to appraisal and payment under Michigan Law. At the Effective Time, all Dissenting Shares shall be cancelled and cease to exist and the holders of Xxxxx Common Dissenting Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled only to paymentsuch rights as may be granted them under Michigan Law. Notwithstanding the foregoing, solely from the Surviving Companyif, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; providedat any time, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCL, effectively withdraws or loses such holder or holders (as the case may be) shall forfeit the holder’s right to appraisal of under Michigan Law, such Xxxxx Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed no longer to be No Election Dissenting Shares and shall be treated as if each such Dissenting Share had been converted as of the Effective Time into and represent only the right to receive the Cash Election portion of the Final Merger Consideration and/or to which such holder is entitled, without interest, and any portion of the Stock election Consideration in accordance with China Joint Venture Dividend to which such holder is entitled pursuant to Section 2.3(c)5.17, and such holder shall have all of the other rights of a shareholder set forth hereunder. Xxxxx Prior to the Effective Time, the Company shall give Mercury Buyer (a) prompt notice of any written demands received by Xxxxx the Company for appraisal of Xxxxx Common Shares, written withdrawals of such demands and any other instruments served pursuant to Michigan Law and received by the Xxxxx LLC Agreement Company relating to the Shareholders’ rights to appraisal with respect to the Merger; and Section 262 of the DGCL and shall give Mercury (b) the opportunity to participate in all negotiations and proceedings with respect theretoto any exercise of such appraisal rights under Michigan Law. Xxxxx Except to the extent required by applicable Law, the Company shall notnot voluntarily make any payment with respect to any demands for payment of fair value for capital stock of the Company or offer to settle or settle any such demands, without the prior written consent of MercuryBuyer, make which consent shall not be unreasonably withheld, delayed or conditioned in the case of any payment with respect to, or settle or offer made prior to settle, any such demandsthe Closing Date.

Dissenting Shares. Pursuant Notwithstanding anything to the Xxxxx LLC Agreementcontrary herein, shares of Target Capital Stock issued and outstanding immediately prior to the holders of each Xxxxx Common Share are Effective Time and held by a Stockholder who is entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to and has properly exercised and perfected appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would be entitled to demand appraisal pursuant to Section 262 of the DGCLDelaware Law (collectively, the “Dissenting Shares”) shall not be converted as of the Effective Time into the right to receive any of the Merger Consideration, if Xxxxx were a applicable, but instead shall have such rights as may be available under the Delaware corporation Law. At the Effective Time, all Dissenting Shares shall no longer be outstanding and shall be cancelled and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the holders of Xxxxx Common Shares were stockholders right to receive the fair value of such corporation, and shall have properly demanded appraisal Dissenting Shares in compliance accordance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCLDelaware Law; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, such Stockholder shall have failed to perfect or shall effectively withdraw or lose its right to appraisal and payment under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting SharesDelaware Law, or (b) if any holder a court of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is competent jurisdiction shall determine that such holder is not entitled to payment for its shares under the DGCLrelief provided by Section 262, such holder or holders (as the case may be) shall forfeit the right to appraisal Stockholder’s shares of such Xxxxx Common Shares and such Xxxxx Common Shares Target Capital Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted as of the Effective Time into and represent only the right to receive the Cash Election applicable portion of the Merger Consideration and/or pursuant to Section 1.5, if any, and such shares of Target Capital Stock shall no longer be Dissenting Shares. Target shall give Purchaser prompt notice identifying those Stockholders who did not vote in favor of the Stock election Consideration Merger or consent thereto in writing. Promptly following Stockholder approval of the Merger, Purchaser shall prepare and deliver to the Stockholders all written notices required to be delivered in accordance with Section 2.3(c)Sections 228, 251 and 262 of the Delaware Law, in forms reasonably acceptable to the Agent. Xxxxx Prior to the Effective Time, (i) Target shall have the right to control the negotiations, proceedings and any settlement of any such demands, (ii) Target shall give Mercury Purchaser prompt notice of any demands received by Xxxxx Target for appraisal of Xxxxx Common Shares, withdrawals shares of such demands Target Capital Stock and any other instruments served pursuant to (iii) Purchaser shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations negotiations, proceedings and proceedings settlements with respect theretoto such demands. Xxxxx On and after the Effective Time, (a) Purchaser shall notgive the Agent prompt notice of any demands for appraisal received by the Surviving Corporation, (b) so long as (I) the Agent can demonstrate that it has sufficient amounts which may be used in connection with such demand for appraisal to (A) defend such demand for appraisal, and (B) defend all other demands for appraisal then pending which the Agent is defending pursuant to this Section 1.13 and defend all Third Party Claims then pending which the Agent is defending pursuant to Section 8.8, and (II) the Agent has acknowledged in writing to Purchaser the Sellers’ unconditional obligation to indemnify Purchaser for such demand for appraisal, subject to the limitations set forth in Article VIII, the Agent shall have the right to control the negotiations, proceedings and any settlement of any such demands for appraisal; provided that the Agent shall not settle or compromise any such demand for appraisal without the prior written consent of MercuryPurchaser if pursuant to or as a result of such settlement, make such settlement would lead to Liability or create any payment financial or other obligation on the part of any Purchaser Protected Party for which such Purchaser Protected Party is not entitled to be indemnified pursuant to Section 8.3 and (c) Purchaser shall have the right (for purposes of clarification, at Purchaser’s expense) to participate in all negotiations, proceedings and settlements with respect to, or settle or offer to settle, any such demands.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect all shares of Puget Sound Common Stock that are issued and outstanding immediately prior to each Xxxxx Common Share to the Effective Time and which the holder thereof would be entitled to demand appraisal pursuant to Section 262 are held by a shareholder who did not vote in favor of the DGCL, if Xxxxx were a Delaware corporation Merger (or consent thereto in writing) and who exercises dissenters rights when and in the holders of Xxxxx Common Shares were stockholders of such corporation, and shall have properly demanded appraisal in compliance with the provisions of Section 262 manner required under Chapter 23B.13 of the DGCL WBCA shall not be converted into or be exchangeable for the right to receive the Merger Consideration (each, a “Xxxxx the "Dissenting Share”Shares"), if any, but instead such holder shall be entitled to payment, solely from only such rights as are granted with respect to the Surviving Company, payment of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any holder of Xxxxx Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any holder of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is that such holder is not entitled to payment for its shares under the DGCLapplicable provisions of Chapter 23B.13 of the WBCA (and at the Effective Time, such Dissenting Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the rights provided for pursuant to the foregoing provisions of the WBCA and this Section 1.4(d)), unless and until such holder shall have failed to perfect or holders (as shall have effectively withdrawn or lost rights to demand or receive the case may befair value of such shares of Puget Sound Common Stock under the WBCA. If any shareholder dissenting pursuant to the WBCA and this Section 1.4(d) shall forfeit have failed to perfect or shall have effectively withdrawn or lost such right, such holder's shares of Puget Sound Common Stock shall thereupon be treated as if they had been converted into and become exchangeable for the right to appraisal receive, as of the Effective Time, the Merger Consideration for each such Xxxxx share of Puget Sound Common Shares and such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and converted into and represent only the right to receive the Cash Election Consideration and/or the Stock election Consideration Stock, in accordance with Section 2.3(c1.4(b), without any interest thereon. Xxxxx Puget Sound shall give Mercury Heritage (i) prompt notice of any demands received by Xxxxx for appraisal written notices to exercise dissenters' rights in respect of Xxxxx any shares of Puget Sound Common SharesStock, attempted withdrawals of such demands notices and any other instruments served pursuant to the Xxxxx LLC Agreement WBCA and Section 262 of the DGCL received by Puget Sound relating to shareholders' dissenters' rights and shall give Mercury (ii) the opportunity to participate in all negotiations and proceedings with respect theretoto demands for fair value under the WBCA. Xxxxx Puget Sound shall not, without except with the prior written consent of MercuryHeritage, voluntarily make any payment with respect to, or settle settle, or offer or agree to settle, any such demandsdemand for payment. Any Merger Consideration made available to the Exchange Agent as (defined in Section 2.1) pursuant to Article II to pay for shares of Puget Sound Common Stock for which dissenters' rights have been perfected shall be returned to Heritage upon demand.

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding Notwithstanding anything in this Agreement to the contrary, with respect Shares which are issued and outstanding immediately prior to each Xxxxx Common Share the Effective Time and which are held by shareholders who have not voted such Shares in favor of the adoption of this Agreement and who shall have delivered a written demand for appraisal of such Shares within the time and in the manner provided in Section 262 of the Delaware Act and who, as of the Effective Time, shall not have withdrawn such demand or lost such right to which appraisal and payment therefor under the holder Delaware Act (the "Dissenting Shares") shall not be converted into or be exchangeable for the right 4 Next Page to receive the Merger Consideration provided in Section 1.3(a) of this Agreement. The holders thereof would shall be entitled only to demand appraisal such rights as are granted by Section 262 of the Delaware Act. Each holder of Dissenting Shares who becomes entitled to payment for such Shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and Act shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCLDelaware Act; provided, however, that (ai) if any such holder of Xxxxx Dissenting Shares, under Shares shall have failed to establish such holder's entitlement to appraisal rights as provided in Section 262 of the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws its Delaware Act or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn such holder's demand for appraisal of such Xxxxx Dissenting Shares, Shares or (b) if any holder of Xxxxx Dissenting Shares takes or fails lost such holder's right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its shares such holder's Shares under Section 262 of the DGCLDelaware Act, such holder or holders (as the case may be) shall forfeit the right to of appraisal of such Xxxxx Common Shares and each such Xxxxx Common Shares shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares Share shall be deemed to be No Election Shares and treated as if it had been, as of the Effective Time, converted into and represent only the a right to receive the Cash Election Consideration and/or Merger Consideration, without interest thereon, from the Stock election Consideration Surviving Corporation as provided in accordance with Section 2.3(c1.3(a). Xxxxx The Company shall give Mercury prompt Buyer notice as promptly as practicable of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Shares, withdrawals of such demands and any other instruments served pursuant to Buyer shall have the Xxxxx LLC Agreement and Section 262 of the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx The Company shall not, without except with the prior written consent of MercuryBuyer, which consent shall not be unreasonably withheld or delayed, make any payment with respect to, or settle or offer to settle, any such demands.. ARTICLE II

Dissenting Shares. Pursuant to the Xxxxx LLC Agreement, the holders Notwithstanding any provision of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrarycontrary and to the extent available under the DGCL, with respect shares of Company Stock issued and outstanding immediately prior to each Xxxxx Common Share to which the First Effective Time and held by a holder thereof would be who has not voted in favor of adoption of this Agreement or consented thereto in writing and who is entitled to demand and has properly exercised appraisal pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders rights of such corporation, and shall have properly demanded appraisal shares in compliance accordance with the provisions of Section 262 of the DGCL (each, a such shares of Company Stock being referred to collectively as the “Xxxxx Dissenting Share”), if any, 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, and the holders thereof shall have no right to receive a portion of the Closing Share Consideration, Aggregate Earnout Consideration and Closing Cash Consideration that would otherwise be attributable to such holder of Company Stock, but instead shall be entitled to payment, solely from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted only such rights as are granted by and in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any if, after the First Effective Time, such holder of Xxxxx Dissenting Sharesfails to perfect, under the circumstances permitted by and in accordance with the DGCLwaives, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shareswithdraws, or (b) loses such holder’s right to appraisal pursuant to Section 262 of the DGCL or if any holder a court of Xxxxx Dissenting Shares takes or fails to take any action the consequence of which is competent jurisdiction shall determine that such holder is not entitled to payment for its shares under the relief provided by Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal shares of such Xxxxx Common Shares and such Xxxxx Common Shares Company Stock shall thereupon cease to constitute Xxxxx Dissenting Shares and such Xxxxx Common Shares shall be deemed to be No Election Shares and have been converted as of the First Effective Time into and represent only the right to receive a portion of the Closing Share Consideration, Aggregate Earnout Consideration and Closing Cash Election Consideration and/or the Stock election Consideration in accordance with Section 2.3(c)3.02 without interest thereon, upon transfer of such shares in the manner provided in Section 3.03. Xxxxx At the First Effective Time, (a) all Dissenting Shares shall give Mercury be cancelled, extinguished and cease to exist and (b) the holders of Dissenting Shares shall be entitled to only such rights as may be granted to him, her or it under the DGCL. The Company shall provide Acquiror prompt written notice of any demands received by Xxxxx the Company for appraisal of Xxxxx Common Sharesshares of Company Stock, withdrawals any waiver or withdrawal of any such demands demand, and any other instruments served pursuant demand, notice, communication or instrument delivered to the Xxxxx LLC Agreement Company prior to the First Effective Time that relates to such demand, and Section 262 of Acquiror shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands. Xxxxx shall not, without Except with the prior written consent of MercuryAcquiror (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not make any payment with respect to, or settle settle, or offer to settle, any such demands, or agree to do any of the foregoing.

Dissenting Shares. Pursuant to Notwithstanding the Xxxxx LLC Agreementforegoing provisions of this Article III, the holders Dissenting Shares shall not be converted into a right to receive the Estimated Merger Consideration, or any portion of each Xxxxx Common Share are entitled to rights of appraisal in the event of a merger of Xxxxx that would give rise to appraisal rights under the DGCL if Xxxxx were a Delaware corporation Escrow Amount or Adjustment Amount, and the holders of Xxxxx Common Shares were stockholders of such corporation. Accordingly, and notwithstanding anything in this Agreement to the contrary, with respect to each Xxxxx Common Share to which the holder thereof would shall be entitled to demand appraisal such rights as are granted by Section 262 of the DGCL to the extent that such rights were not waived by such holders pursuant to Section 2.3(b) of the Management Stockholders Agreement or by execution of any other stockholders agreement. Each holder of Dissenting Shares who is entitled to exercise the rights granted by Section 262 of the DGCL pursuant to the immediately preceding sentence and who becomes entitled to payment for such shares pursuant to Section 262 of the DGCL, if Xxxxx were a Delaware corporation and the holders of Xxxxx Common Shares were stockholders of such corporation, and DGCL shall have properly demanded appraisal in compliance with the provisions of Section 262 of the DGCL (each, a “Xxxxx Dissenting Share”), if any, such holder shall be entitled to payment, solely receive payment therefor from the Surviving Company, of the fair value of the Xxxxx Dissenting Shares to the extent permitted by and Corporation in accordance with the provisions of Section 262 of the DGCL; provided, however, that (a) if any such holder of Xxxxx Dissenting Shares, under the circumstances permitted by and Shares shall have failed to establish such holder’s entitlement to appraisal rights as provided in accordance with Section 262 of the DGCL, affirmatively withdraws its demand for appraisal of such Xxxxx Dissenting Shares, or (b) if any such holder of Xxxxx Dissenting Shares takes shall have effectively withdrawn such holder’s demand for appraisal of such shares or fails lost such holder’s right to take any action the consequence of which is that such holder is not entitled to appraisal and payment for its such holder’s shares under Section 262 of the DGCL, such holder or holders (as the case may be) shall forfeit the right to appraisal of such Xxxxx Common Shares shares and each such Xxxxx Common Shares share shall thereupon cease to not constitute Xxxxx a Dissenting Shares Share and such Xxxxx Common Shares shall be deemed treated as if it had been a Common Share immediately prior to be No Election Shares the Effective Time and converted converted, as of the Effective Time, into and represent only the right to receive the Cash Election Consideration and/or the consideration payable in respect of such shares of Common Stock election Consideration as determined in accordance with this Article III and Section 2.3(c)11.4, without any interest thereon. Xxxxx The Company shall give Mercury prompt written notice to Acquiror of any demands received by Xxxxx for appraisal of Xxxxx any shares of Common SharesStock, withdrawals of such demands and demands, including a copy of any other instruments written instruments, notices or demands served pursuant to the Xxxxx LLC Agreement DGCL received by the Company relating to appraisal demands, and Section 262 of Acquiror shall have the DGCL and shall give Mercury the opportunity right to participate in all negotiations and proceedings with respect theretoto such demands occurring prior to the Effective Time, including by requiring the Company to enforce any rights under the Management Stockholders Agreement. Xxxxx Prior to the Effective Time, the Company shall not, without the prior written consent of MercuryAcquiror, 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. For the avoidance of doubt, no portion of the Adjustment Amount, Escrow Amount or Holder Allocable Expenses shall be paid to any holder of Dissenting Shares, and any such amount shall instead, in the case of the Adjustment Amount or the Escrow Amount be paid to the Surviving Corporation or, in the case of the Holder Allocable Expenses, retained by the Holder Representative, in each case, to be held for the benefit of such holder of Dissenting Shares and shall only be paid to such holder of Dissenting Shares when, and as provided, in the immediately preceding sentence.