Common use of Dissenting Stock Clause in Contracts

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws of the State of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the Corporation, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by the DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law the DGCL concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting ShareholdersDISSENTING STOCKHOLDERS") 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 such Dissenting Shareholder Stockholder pursuant to the laws of the State of DelawareDGCL; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect or otherwise loses his or her entitlement to appraisal rights as provided by applicable law or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of the shares of Common Stock outstanding at the Effective Time and held by Dissenting Stockholders, in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersStockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything contained in ---------------- this Agreement to the contrary but only to the extent required by the DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law the DGCL concerning the right of holders of Common Stock to dissent from the Merger and require demand appraisal of their shares of Common Stock in connection with the Merger (such holders, "Dissenting ShareholdersStockholders") ), shall not be converted into the right to ----------------------- receive the Merger Consideration but shall only become the right to receive such consideration as may be determined to be due such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any -------- ------- Dissenting Shareholder Stockholder who demands appraisal of such holder's shares of Common Stock under the DGCL shall subsequently deliver a written withdrawal of effectively withdraw or lose (through failure to perfect or otherwise) his or her demand for appraisal (with the written approval right to appraisal, then as of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal occurrence of such event, whichever occurs later, such holder's shares and such shares of Common Stock shall thereupon be deemed to have been converted as of the Effective Time into the right to receive, as of the Effective Time, receive the Merger Consideration, without interestinterest thereon, and such holder shall no longer be a Dissenting Stockholder. The Corporation Company shall give Parent and Sub (Ax) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (By) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal and will shall not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything Dissenting Stock shall not be converted into or represent the right to receive any Merger Consideration unless the Dissenting Stockholder holding particular shares of Dissenting Stock has failed to perfect his, her or its right to appraisal under the DGCL in this Agreement respect of such shares or has properly withdrawn his, her or its demand for appraisal in respect of such shares. If such Dissenting Stockholder has so failed to perfect or has withdrawn his, her or its rights to appraisal in respect of such shares, then such shares of Dissenting Stock shall cease to be Dissenting Stock and shall entitle such Dissenting Stockholder to receive the Merger Consideration as provided in Section 2.4(c)(i) in respect of such shares, and promptly following the occurrence of such event and upon the surrender of the Company Certificate(s) representing such shares of Dissenting Stock, the Exchange Agent and the Surviving Corporation (as applicable) shall deliver to the contrary but only holder of such surrendered Company Certificate(s) the Merger Consideration in respect of such shares. The Company shall comply with those provisions of Section 262 of the DGCL which are required to be performed by the extent required by DGCL, shares of Common Stock that are issued and outstanding immediately Company prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws reasonable satisfaction of the State of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interestParent. The Corporation Company shall give Parent and Sub (Ai) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments under the DGCL actually received by the Corporation, Company and (Bii) the an opportunity to direct all negotiations and proceedings with respect to demands for appraisalappraisal under the DGCL. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and will Company shall not, except with the prior written consent of Parent, settle voluntarily make any payment with respect to demands for appraisal under the DGCL or offer to settle or settle any demandsuch demands. Parent and Merger Sub agree that payments to any holder of Dissenting Stock as a result of such holder’s exercise of appraisal rights pursuant to Section 262 of the DGCL shall be made from the assets of the Surviving Corporation and not from the assets of Parent or assets provided by Parent.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary (including, without limitation, Section 2.06 hereof) but only to the extent required by DGCLthe FBCA, shares of Common Stock Shares that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock Shares who comply with all the provisions of Delaware law the FBCA concerning the right of holders of Common Stock to dissent from the Merger and require an appraisal of their shares of Common Stock (the "Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws Section 607.1320 of the State of DelawareFBCA; PROVIDED, HOWEVERprovided, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after to the Effective Timeextent permitted by the FBCA), or (ii) if any Dissenting Shareholder fails to establish and perfect perfect, or shall have effectively withdrawn or lost, his or her entitlement to appraisal rights as provided by applicable law or (iii) to the extent permitted by the FBCA, if within the time period prescribed by the FBCA neither any Dissenting Shareholder nor the Surviving Corporation has filed a petition demanding a determination of the value of the shares of common stock outstanding at the Effective Time and held by Dissenting Shareholders, in accordance with applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub Purchaser (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the Corporation, Company and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary contrary, but only to the extent required by the DGCL, shares of Common Stock Shares that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock Shares who comply with all the provisions of Delaware law the DGCL concerning the right of holders of Common Stock Shares to dissent from the Merger and require appraisal of their shares of Common Stock Shares ("Dissenting ShareholdersStockholders") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all Shares outstanding at the Effective Time and held by Dissenting Stockholders in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersStockholders, as the case may be, shall forfeit the right to appraisal of such shares Shares and such shares Shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub Purchaser (A) prompt notice of any written demands for appraisalappraisal of Shares, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to any such demands for appraisal. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and Company will not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal or settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCLNew York Business Corporation Law, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware New York law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws law of the State of DelawareNew York; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be cancelled and be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and Company will not, except with the prior written consent of Parent, settle or offer to settle any demand.,

Dissenting Stock. Notwithstanding anything contained in this Agreement to the contrary but only to the extent required by the DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of the law of the State of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock (such holders, "Dissenting ShareholdersStockholders") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all shares of Common Stock outstanding at the Effective Time and held by Dissenting Stockholders in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersDissenting Stockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the applicable Merger Consideration, without interest, as provided in Section 5.2, and such shares shall no longer be Dissenting Shares. The Corporation Company shall give Parent and Merger Sub (Ax) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (By) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal and will shall not, except with the prior written consent of Parent, settle or offer to settle any such demand.

Dissenting Stock. Notwithstanding anything contained in this Agreement to the contrary but only to the extent required by the DGCL, shares of Common Stock Shares that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock Shares who comply with all the provisions of Delaware law the DGCL concerning the right of such holders of Common Stock to dissent from the Merger and require demand appraisal of their shares of Common Stock Shares in connection with the Merger (such holders, "Dissenting ShareholdersStockholders") ), shall not be converted into the right to receive the Merger Consideration Consideration, but shall only become the right to receive such consideration as may be determined to be due such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder who demands appraisal of such holder's Shares under the DGCL shall subsequently deliver a written withdrawal of effectively withdraw or lose (through failure to perfect or otherwise) his or her demand for appraisal (with the written approval right to appraisal, then as of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal occurrence of such shares and event, whichever occurs later, such shares holder's Shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receive, as of the Effective Time, receive the Merger Consideration, without interestinterest thereon, and such holder shall no longer be a Dissenting Stockholder. The Corporation Company shall give Parent and Sub Buyer (Aa) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the Corporation, Company after the date hereof and (Bb) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal and will shall not, except with the prior written consent of ParentBuyer, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCLcontrary, those shares of Common Company Stock that are issued and outstanding which immediately prior to the Effective Time and are held by holders of Common Dissenting Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") shall not be converted into the right to receive the Merger Consideration as provided in Section 2.4(c) hereof, but the holders of Dissenting Stock shall become the right be entitled to receive such consideration as may shall be determined to be due such Dissenting Shareholder pursuant to the laws Section 262 of the State of DelawareDGCL from the Company or the Surviving Corporation; PROVIDEDprovided, HOWEVERhowever, that (i) that, if any Dissenting Shareholder such holder shall subsequently deliver a written withdrawal of his have failed to perfect or her demand for appraisal shall withdraw (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), ) or (ii) if any Dissenting Shareholder fails to establish and perfect lose his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of and payment in accordance with the DGCL, such shares and such holder's shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receivereceive the Merger Consideration, as of without any interest thereon, and such shares shall no longer be Dissenting Stock. The Company (and after the Effective Time, the Merger Consideration, without interest. The Corporation Surviving Corporation) shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the Company or the Surviving Corporation, as the case may be, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company (and, after the Effective Time, the Surviving Corporation) will not voluntarily make any payment with respect to any demands for appraisal appraisals and will not, except with without the prior written consent of Parent, settle or offer to settle any such demand, provided however, that notwithstanding anything herein to the contrary, Parent or any of its Affiliates (other than the Surviving Corporation) shall not provide any funds (via loan, capital contributions, or otherwise), solely for the purpose of making the Company's or the Surviving Corporation's payments of consideration to holders of Dissenting Stock.

Dissenting Stock. Notwithstanding anything contained in this Agreement to the contrary but only to the extent required by DGCLthe NGCL, shares of Common Stock Shares that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware the law of the State of Nevada concerning the right rights of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock Shares (such holders, "Dissenting ShareholdersDISSENTING STOCKHOLDERS") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of DelawareNevada; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to Stockholder who demands appraisal of such holder's shares and under the NGCL shall effectively withdraw or lose (through failure to perfect or otherwise) his right to appraisal, then as of the Effective Time or the occurrence of such shares event, whichever later occurs, such holder's Shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receive, as of the Effective Time, the receive Merger Consideration, without interestany interest thereon, and such stockholders shall no longer be Dissenting Stockholders. The Surviving Corporation shall give Parent and Sub Equalnet (Ax) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the Surviving Corporation, and (By) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Surviving Corporation will shall not voluntarily make any payment with respect to any demands for appraisal and will shall not, except with the prior written consent of ParentEqualnet, settle or offer to settle any demand.

Dissenting Stock. (a) Notwithstanding anything in any provision of this Agreement to the contrary but only to the extent required by DGCLcontrary, including Section 2.6, shares of Common Company Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders Company Stockholders (other than shares of Common Company Stock that are canceled pursuant to Section 2.6) who comply with all the provisions shall not have voted in favor of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require adoption of this Agreement or consented thereto in writing and who shall have properly exercised appraisal rights of their such shares in accordance with Section 262 of Common Stock the DGCL ("collectively, the “Dissenting Shareholders"Stock”) shall not be converted into into, or represent the right to receive receive, any portion of the Aggregate Initial Consideration or Final Merger Consideration but shall become the right to receive such consideration as may be determined to be due such Dissenting Shareholder payable pursuant to the laws terms of this Agreement. Such holders of Company Stock shall be entitled to receive payment of the State appraised value of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal such shares of his or her demand for appraisal (Company Stock held by them in accordance with the written approval provisions of Section 262 of the Surviving CorporationDGCL, if such withdrawal is not tendered within 60 days after except that all Dissenting Stock held by the Effective Time), holders of Company Stock who shall have failed to perfect or (ii) if any Dissenting Shareholder fails to establish and perfect his who effectively shall have withdrawn or her entitlement to appraisal lost their rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares under Section 262 of the DGCL shall thereupon be deemed to have been converted into the right into, and to receivehave become exchangeable for, as of the Effective Time, the right to receive any portion of the Aggregate Initial Consideration and Final Merger Consideration payable pursuant to the terms of this Agreement, without any interest thereon, upon surrender, in the manner provided herein, of the Certificate or Certificates that formerly evidenced such shares or the execution and delivery of a lost stock affidavit to the Company as set forth in Section 2.7(c). Purchaser shall be entitled to retain any Aggregate Initial Consideration or Final Merger Consideration not paid on account of the Dissenting Stock pending resolution of the claims of such holders, and the remaining Company Stockholders shall not be entitled to any portion of such retained Aggregate Initial Consideration or Final Merger Consideration, without interest. . (b) The Corporation Company shall give Parent provide (i) Purchaser and Sub (A) the Sellers’ Representative prompt written notice of any written demands for appraisal, withdrawals of demands for appraisal received by the Company, any withdrawals of such demands, and any other related instruments served pursuant to the DGCL and received by the Corporation, Company and (Bii) Purchaser the opportunity to direct all negotiations and proceedings with respect to demands for appraisalappraisal under the DGCL. The Corporation will not voluntarily Company shall not, except with the prior written consent of Purchaser, make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle or settle any demandsuch demands.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCLNew York Business Corporation Law, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware New York law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws law of the State of DelawareNew York; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be cancelled and be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and Company will not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal or settle or offer to settle any such demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary (including, without limitation, Section 2.04 hereof) but only to the extent required by DGCLthe FBCA, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law the FBCA concerning the right of holders of Common Stock to dissent from the Merger and require an appraisal of their shares of Common Stock (the "Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws Section 607.1320 of the State of DelawareFBCA; PROVIDED, HOWEVERprovided, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after to the Effective Timeextent permitted by the FBCA), or (ii) if any Dissenting Shareholder fails to establish and perfect perfect, or shall have effectively withdrawn or lost, his or her entitlement to appraisal rights as provided by applicable law or (iii) to the extent permitted by the FBCA, if within the time period prescribed by the FBCA neither any Dissenting Shareholder nor the Surviving Corporation has filed a petition demanding a determination of the value of the shares of Common Stock outstanding at the Effective Time and held by Dissenting Shareholders, in accordance with applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the Corporation, Company and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting ShareholdersDISSENTING STOCKHOLDERS") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all shares of the Common Stock that are issued and outstanding at the Effective Time and held by Dissenting Stockholders, then such Dissenting Shareholder Stockholder or ShareholdersStockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interestinterest according to the terms of this Agreement. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any such demand.

Dissenting Stock. Notwithstanding anything Each outstanding Share as to which a written demand for appraisal is filed in this Agreement to accordance with (S) 262 of the contrary but only to the extent required by DGCL, shares of Common Stock that are issued and outstanding immediately DGCL at or prior to the Effective Time Stockholders Meeting (as hereinafter defined) and are held by holders not withdrawn at or prior to the Stockholders Meeting and which is not voted in favor of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") shall not be converted into the or represent a right to receive the Merger Consideration but hereunder unless and until the holder shall become the right have failed to receive such consideration as may be determined to be due such Dissenting Shareholder pursuant to the laws of the State of Delaware; PROVIDEDperfect, HOWEVER, that (i) if any Dissenting Shareholder or shall subsequently deliver a written withdrawal of have effectively withdrawn or lost his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of and payment for his or her Shares under such shares (S) 262, at which time his or her Shares shall be treated in accordance with Section 3.3(b) below. All such Shares as to which such a written demand for appraisal is so filed and not withdrawn at or prior to the time of such shares shall thereupon be deemed vote and which are not voted in favor of the Merger, except any such Shares the holder of which, prior to have been converted into the right to receive, as of the Effective Time, the Merger Considerationshall have effectively withdrawn or lost, without interest. his or her right to appraisal of and payment for his or her Shares under such (S) 262, are herein called "Dissenting Shares." The Corporation Company shall give Parent and Sub (A) prompt notice upon receipt by the Company of any written demands for appraisalappraisal rights, withdrawals withdrawal of demands for appraisal such demands, and any other related instruments received by served pursuant to (S) 262 of the CorporationDGCL, and (B) the Company shall give Parent the opportunity to direct all negotiations and proceedings with respect to demands for appraisalsuch demands. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal rights and will shall not, except with the prior written consent of the Parent, settle or offer to settle any demandsuch demands. Each holder of Shares who becomes entitled, pursuant to (S) 262 of the DGCL, to payment for his or her Shares under the provisions of such section shall receive payment therefor from the Surviving Corporation and such Shares shall be canceled.

Dissenting Stock. Notwithstanding anything in this Agreement to ---------------- the contrary (including, without limitation, Section 2.04 hereof) but only to the extent required by DGCLthe FBCA, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law the FBCA concerning the right of holders of Common Stock to dissent from the Merger and require an appraisal of their shares of Common Stock (the "Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws Section 607.1320 of the State of DelawareFBCA; PROVIDED, HOWEVERprovided, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after to the Effective Timeextent permitted by the FBCA), or (ii) if any Dissenting Shareholder fails to establish and perfect perfect, or shall have effectively withdrawn or lost, his or her entitlement to appraisal rights as provided by applicable law or (iii) to the extent permitted by the FBCA, if within the time period prescribed by the FBCA neither any Dissenting Shareholder nor the Surviving Corporation has filed a petition demanding a determination of the value of the shares of Common Stock outstanding at the Effective Time and held by Dissenting Shareholders, in accordance with applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the Corporation, Company and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything Each outstanding Share as to which a written demand for appraisal is filed in this Agreement to accordance with ss. 262 of the contrary but only to the extent required by DGCL, shares of Common Stock that are issued and outstanding immediately DGCL at or prior to the Effective Time Stockholders Meeting (as hereinafter defined) and are held by holders not withdrawn at or prior to the Stockholders Meeting and which is not voted in favor of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") shall not be converted into the or represent a right to receive the Merger Consideration but hereunder unless and until the holder shall become the right have failed to receive such consideration as may be determined to be due such Dissenting Shareholder pursuant to the laws of the State of Delaware; PROVIDEDperfect, HOWEVER, that (i) if any Dissenting Shareholder or shall subsequently deliver a written withdrawal of have effectively withdrawn or lost his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of and payment for his or her Shares under such shares ss. 262, at which time his or her Shares shall be treated in accordance with Section 3.3(b) below. All such Shares as to which such a written demand for appraisal is so filed and not withdrawn at or prior to the time of such shares shall thereupon be deemed vote and which are not voted in favor of the Merger, except any such Shares the holder of which, prior to have been converted into the right to receive, as of the Effective Time, the Merger Considerationshall have effectively withdrawn or lost, without interesthis or her right to appraisal of and payment for his or her Shares under such ss. 262, are herein called "Dissenting Shares." The Corporation Company shall give Parent and Sub (A) prompt notice upon receipt by the Company of any written demands for appraisalappraisal rights, withdrawals withdrawal of demands for appraisal such demands, and any other related instruments received by served pursuant to ss. 262 of the CorporationDGCL, and (B) the Company shall give Parent the opportunity to direct all negotiations and proceedings with respect to demands for appraisalsuch demands. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal rights and will shall not, except with the prior written consent of the Parent, settle or offer to settle any demandsuch demands. Each holder of Shares who becomes entitled, pursuant to ss. 262 of the DGCL, to payment for his or her Shares under the provisions of such section shall receive payment therefor from the Surviving Corporation and such Shares shall be canceled.

Dissenting Stock. (a) Notwithstanding anything in any provision of this Agreement to the contrary but only to the extent required by DGCLcontrary, shares of Common Company Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders Company Stockholders who shall have not voted in favor of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require who shall have demanded properly in writing appraisal for such shares in accordance with Section 262 of their shares of Common Stock the DGCL ("collectively, the “Dissenting Shareholders"Stock”) shall not be converted into into, or represent the right to receive receive, any portion of the Aggregate Initial Consideration or Final Merger Consideration but shall become the right to receive such consideration as may be determined to be due such Dissenting Shareholder payable pursuant to the laws terms of this Agreement. Such holders of Company Stock shall be entitled to receive payment of the State appraised value of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal such shares of his or her demand for appraisal (Company Stock held by them in accordance with the written approval provisions of such Section 262 of the Surviving CorporationDGCL, if such withdrawal is not tendered within 60 days after except that all Dissenting Stock held by the Effective Time), holders of Company Stock who shall have failed to perfect or (ii) if any Dissenting Shareholder fails to establish and perfect his who effectively shall have withdrawn or her entitlement to appraisal lost their rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and under such shares Section 262 of the DGCL shall thereupon be deemed to have been converted into the right into, and to receivehave become exchangeable for, as of the Effective Time, the right to receive any portion of the Aggregate Initial Consideration and Final Merger ConsiderationConsideration payable pursuant to the terms of this Agreement, without interest. any interest thereon, upon (i) surrender, in the manner provided herein, of the Certificate or Certificates that formerly evidenced such shares or the execution and delivery of a lost stock affidavit to the Company as set forth in Section 2.7(b) and (ii) execution and delivery of a Letter of Transmittal, pursuant to and in accordance with Section 2.7(b). (b) The Corporation Company shall give Parent (i) Purchaser and Sub (A) the Sellers’ Representative prompt written notice of any written demands for appraisalappraisal received by the Company, withdrawals of demands for appraisal such demands, and any other related instruments served pursuant to the DGCL and received by the Corporation, Company and (Bii) Purchaser the opportunity to direct all negotiations and proceedings with respect to demands for appraisalappraisal under the DGCL. The Corporation will not voluntarily Company shall not, except with the prior written consent of Purchaser, make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle or settle any demandsuch demands.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by the DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting ShareholdersDISSENTING STOCKHOLDERS") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of the shares of Common Stock outstanding at the Effective Time and held by Dissenting Stockholders, in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersStockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCLChapter 13 of the California GCL, shares of Common Company Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Company Stock who comply with all the provisions of Delaware law Chapter 13 of the California GCL concerning the right of holders of Common Company Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting Shareholders") 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 such Dissenting Shareholder pursuant to the laws of the State of DelawareCalifornia GCL; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal purchase (with the written approval consent of the Company or the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 180 days of the Effective Time neither any Dissenting Shareholder nor the Surviving Corporation has filed a complaint or intervened in a pending action in accordance with applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit their rights under the right to appraisal of such shares California GCL and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent EMKT and Sub FMI: (A) prompt notice of any written demands for appraisalby Dissenting Shareholders, withdrawals of such demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisalsuch demands. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of ParentEMKT and FMI, settle or offer to settle any demand.

Dissenting Stock. a. Notwithstanding anything in any provision of this Agreement to the contrary but only to the extent required by DGCLcontrary, shares of Common Company Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders Company Stockholders who have not voted in favor of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal who have demanded properly in writing payment for such shares in accordance with Section 623 of their shares of Common Stock the NYBCL ("collectively, the “Dissenting Shareholders"Stock”) shall not be converted into into, or represent the right to receive receive, any portion of the Final Merger Consideration but shall become the right to receive such consideration as may be determined to be due such Dissenting Shareholder payable pursuant to the laws terms of the State this Agreement. Such holders of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder Company Stock shall subsequently deliver a written withdrawal be entitled to receive payment for such shares of his or her demand for appraisal (Company Stock held by them in accordance with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal provisions of such shares and Section 623, except that all Dissenting Stock held by the holders of Company Stock who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to payment for such shares under such Section 623 shall thereupon be deemed to have been converted into the right into, and to receivehave become exchangeable for, as of the Effective Time, the right to receive a portion of the Final Merger ConsiderationConsideration payable pursuant to the terms of this Agreement, without interest. any interest thereon, upon surrender, in the manner provided herein, of such Company Stock, together with a Joinder Agreement, duly executed and completed in accordance with the instructions thereto, to Parent as set forth in Section 2.10(a). b. The Corporation Company shall give (i) Parent and Sub (A) the Representative prompt written notice of any written notices of dissent or demands for appraisalpayment pursuant to Section 623 received by the Company, withdrawals of demands for appraisal such demands, and any other related instruments served pursuant to the NYBCL and received by the Corporation, Company and (Bii) Parent the opportunity to direct all negotiations and proceedings with respect to demands for appraisalappraisal under the NYBCL. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and will Company shall not, except with the prior written consent of Parent, settle make any payment with respect to any demands for payment pursuant to Section 623 or offer to settle or settle any demandsuch demands.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by the DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting ShareholdersStockholders") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of the shares of Common Stock outstanding at the Effective Time and held by Dissenting Stockholders, in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersStockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything contained ---------------- in this Agreement to the contrary contrary, but only to the extent required by the DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of the law of the State of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock (such holders, "Dissenting ShareholdersStockholders") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to Stockholder who demands appraisal of such holder's shares and under DGCL shall effectively withdraw or lose (through failure to perfect or otherwise) his right to appraisal, then as of the Effective Time or the occurrence of such event, whichever later occurs, such holder's shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receive, as of the Effective Time, receive the Merger Consideration, without interestany interest thereon, and such holder shall no longer be a Dissenting Stockholder. The Corporation Company shall give Parent and Sub (Ax) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (By) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal and will shall not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. (a) Notwithstanding anything in any provision of this Agreement to the contrary but only to the extent required by DGCLcontrary, shares of Common Company Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders Company Stockholders who shall have not voted in favor of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require who shall have demanded properly in writing appraisal for such shares in accordance with Section 262 of their shares of Common Stock the DGCL ("collectively, the “Dissenting Shareholders"Stock”) shall not be converted into into, or represent the right to receive receive, any portion of the Aggregate Initial Cash Consideration or Final Merger Cash Consideration, Share Consideration but shall become the right to receive such consideration as may be determined to be due such Dissenting Shareholder and Earnout Consideration payable pursuant to the laws terms of this Agreement. Such holders of Company Stock shall be entitled to receive payment of the State appraised value of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal such shares of his or her demand for appraisal (Company Stock held by them in accordance with the written approval provisions of such Section 262, except that all Dissenting Stock held by the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), holders of Company Stock who shall have failed to perfect or (ii) if any Dissenting Shareholder fails to establish and perfect his who effectively shall have withdrawn or her entitlement to appraisal lost their rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and under such shares Section 262 shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. rights provided in Section 262. (b) The Corporation Company shall give Parent (i) Purchaser and Sub (A) the Sellers’ Representative prompt written notice of any written demands for appraisalappraisal received by the Company, withdrawals of demands for appraisal such demands, and any other related instruments served pursuant to the DGCL and received by the Corporation, Company and (Bii) Purchaser the opportunity to direct all negotiations and proceedings with respect to demands for appraisalappraisal under the DGCL. The Corporation will not voluntarily Company shall not, except with the prior written consent of Purchaser, make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle or settle any demandsuch demands.

Dissenting Stock. (a) Notwithstanding anything in any other provisions of this Agreement to the contrary but contrary, no Dissenting Stock will be converted into or represent a right to receive any portion of the Merger Consideration set forth in this Section 2, and any holder of the Dissenting Stock will only be entitled to such rights as are provided by Delaware General Corporation Law. (b) Notwithstanding the extent required by DGCLprovisions of Section 2.10(a) of this Agreement, shares if any holder of Common Dissenting Stock that are issued and outstanding immediately prior effectively withdraws or loses (through the failure to perfect or otherwise) such holder's appraisal rights under the Delaware General Corporation Law, then, as of the later of the Effective Time and are held by holders or the occurrence of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their such event, such holder's shares of Common Target Stock ("Dissenting Shareholders") shall not will automatically be converted into and represent only the right to receive that portion of the Merger Consideration but shall become the right to receive such consideration as may be determined to be due issued in exchange for such Dissenting Shareholder pursuant shares, without interest thereon, and subject to any other applicable provisions of this Agreement, upon surrender of a certificate(s) representing such shares. (c) The Target will give the laws of the State of Delaware; PROVIDED, HOWEVER, that Parent (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands demand for appraisal and any other related instruments received by the CorporationTarget pursuant to the applicable provisions of Delaware General Corporation Law, and (Bii) the opportunity to direct participate in all negotiations and proceedings with respect to demands for appraisalsuch demands. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and Target will not, except with the prior written consent of the Parent, settle make any payment with respect to any such demands or offer to settle or settle any demandsuch demands. Any communication to be made by the Target to any holder of Target Stock with respect to such demands will be submitted to the Parent in advance and will not be presented to any holder of Target Stock prior to the Target receiving the Parent's consent. (d) Notwithstanding the provisions of Section 2.10(c) of this Agreement, to the extent that the Parent or the Surviving Corporation incurs any Appraisal Costs, the Parent will be entitled to recover the full amount of such Appraisal Costs from the Escrow or any unpaid or future 2004 Earnout Payment or 2005 Earnout Payment.

Dissenting Stock. Notwithstanding anything contained in this ---------------- Agreement to the contrary but only to the extent required by DGCLthe Delaware General Corporation Law, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of the law of the State of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock (such holders, "Dissenting ShareholdersStockholders") shall not be ----------------------- converted into the right to receive the Applicable Merger Consideration but shall become the right to receive such consideration as may be determined to be due such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently -------- ------- deliver a -7- written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all shares of Stock outstanding at the Effective Time and held by Dissenting Stockholders in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersDissenting Stockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Applicable Merger Consideration, without interest. The Corporation Company shall give Parent and Sub (Ax) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (By) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal and will shall not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting ShareholdersStockholders") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all shares of the Common Stock that are issued and outstanding at the Effective Time and held by Dissenting Stockholders, then such Dissenting Shareholder Stockholder or ShareholdersStockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interestinterest according to the terms of this Agreement. The Corporation Company shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any such demand.

Dissenting Stock. Notwithstanding anything contained in this Agreement to the contrary but only to the extent required by the DGCL, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by holders of Common Stock who comply with all the provisions of the law of the State of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their shares of Common Stock (such holders, "Dissenting ShareholdersStockholders") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVERhowever, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all shares of Common Stock outstanding at the Effective Time and held by Dissenting Stockholders in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersDissenting Stockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the applicable Merger Consideration, without interest, as provided in Section 5.2, and such shares shall no longer be Dissenting Shares. The Corporation Company shall give Parent and Merger Sub (Ax) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (By) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation will Company shall not voluntarily make any payment with respect to any demands for appraisal and will shall not, except with the prior written consent of Parent, settle or offer to settle any such demand.

Dissenting Stock. (a) Notwithstanding anything in any other provisions of this Agreement to the contrary but contrary, no Dissenting Stock will be converted into or represent a right to receive any portion of the Merger Consideration set forth in this Section 2, and any holder of the Dissenting Stock will only be entitled to such rights as are provided by Delaware General Corporation Law. (b) Notwithstanding the extent required by DGCLprovisions of Section 2.10(a) of this Agreement, shares if any holder of Common Dissenting Stock that are issued and outstanding immediately prior effectively withdraws or loses (through the failure to perfect or otherwise) such holder's appraisal rights under the Delaware General Corporation Law, then, as of the later of the Effective Time and are held by holders or the occurrence of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require appraisal of their such event, such holder's shares of Common Target Stock ("Dissenting Shareholders") shall not will automatically be converted into and represent only the right to receive that portion of the Merger Consideration but shall become the right to receive such consideration as may be determined to be due issued in exchange for such Dissenting Shareholder pursuant shares, without interest thereon, and subject to any other applicable provisions of this Agreement, upon surrender of a certificate(s) representing such shares. (c) The Target will give the laws of the State of Delaware; PROVIDED, HOWEVER, that Parent (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation shall give Parent and Sub (A) prompt notice of any written demands for appraisal, withdrawals of demands demand for appraisal and any other related instruments received by the CorporationTarget pursuant to the applicable provisions of Delaware General Corporation Law, and (Bii) the opportunity to direct participate in all negotiations and proceedings with respect to demands for appraisalsuch demands. The Corporation will not voluntarily make any payment with respect to any demands for appraisal and Target will not, except with the prior written consent of the Parent, settle make any payment with respect to any such demands or offer to settle or settle any demandsuch demands. Any communication to be made by the Target to any holder of Target Stock with respect to such demands will be submitted to the Parent in advance and will not be presented to any holder of Target Stock prior to the Target receiving the Parent's consent. (d) Notwithstanding the provisions of Section 2.10(c) of this Agreement, to the extent that the Parent or the Surviving Corporation incurs any Appraisal Costs, the Parent will be entitled to recover the full amount of such Appraisal Costs from the Escrow.

Dissenting Stock. Notwithstanding anything in this Agreement to the contrary but only to the extent required by DGCLthe Delaware Law, shares of Common Stock Shares that are issued and outstanding immediately prior to the Effective Time Date and are held by holders of Common Stock who comply with all the provisions of the Delaware law Law concerning the right of holders of Common Stock common stock to dissent from the Merger and require appraisal of their shares of Common Stock ("Dissenting ShareholdersDISSENTING STOCKHOLDERS") 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 such Dissenting Shareholder Stockholders pursuant to the laws of the State of DelawareDelaware Law; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective TimeDate), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Date neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all Shares outstanding at the Effective Date and held by Dissenting Stockholders in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersStockholders, as the case may be, shall forfeit the right to appraisal of such shares Shares and such shares Shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective TimeDate, the Merger Consideration, without interest. The Corporation Company shall give Parent and Sub Purchaser (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationCompany, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any demand.

Dissenting Stock. (a) Notwithstanding anything in any provision of this Agreement to the contrary but only to the extent required by DGCLcontrary, shares of Common Company Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders Company Stockholders who shall have not voted in favor of Common Stock who comply with all the provisions of Delaware law concerning the right of holders of Common Stock to dissent from the Merger and require who shall have demanded properly in writing appraisal for such shares in accordance with Section 262 of their shares of Common Stock the DGCL ("collectively, the “Dissenting Shareholders"Stock”) shall not be converted into into, or represent the right to receive receive, any portion of the Aggregate Initial Consideration or Final Merger Consideration but shall become the right to receive such consideration as may be determined to be due such Dissenting Shareholder payable pursuant to the laws terms of this Agreement. Such holders of Company Stock shall be entitled to receive payment of the State appraised value of Delaware; PROVIDED, HOWEVER, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal such shares of his or her demand for appraisal (Company Stock held by them in accordance with the written approval provisions of such Section 262, except that all Dissenting Stock held by the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), holders of Company Stock who shall have failed to perfect or (ii) if any Dissenting Shareholder fails to establish and perfect his who effectively shall have withdrawn or her entitlement to appraisal lost their rights as provided by applicable law, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and under such shares Section 262 shall thereupon be deemed to have been converted into the right into, and to receivehave become exchangeable for, as of the Effective Time, the right to receive any portion of the Aggregate Initial Consideration and Final Merger ConsiderationConsideration payable pursuant to the terms of this Agreement, without interest. any interest thereon, upon surrender, in the manner provided herein, of the Certificate or Certificates that formerly evidenced such shares or the execution and delivery of a lost stock affidavit to the Company as set forth in Section 2.7(b). (b) The Corporation Company shall give Parent (i) Purchaser and Sub (A) the Sellers’ Representative prompt written notice of any written demands for appraisalappraisal received by the Company, withdrawals of demands for appraisal such demands, and any other related instruments served pursuant to the DGCL and received by the Corporation, Company and (Bii) the Sellers’ Representative the opportunity to direct all negotiations and proceedings with respect to demands for appraisalappraisal under the DGCL. The Corporation will not voluntarily make Company Stockholders shall be responsible pursuant to Section 7.1(d) for the excess, if any, of all reasonable third-party out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) related to, arising out of, or incurred in connection with, the Company’s negotiations or proceedings relating to any demand for payment of Dissenting Stock, including any payment required to be made to any holder of Dissenting Stock with respect to the settlement or resolution of any demands for appraisal and will notproceeding relating thereto in excess of the aggregate amount of consideration that would have otherwise been payable with respect to such Dissenting Stock (such excess, except with being referred to as the prior written consent of Parent, settle or offer to settle any demand“Excess Dissenters Costs”).

Dissenting Stock. Notwithstanding anything contained in this ---------------- Agreement to the contrary but only to the extent required by DGCLthe Delaware General Corporation Law, shares of Common SMGH Preferred Stock that are issued and outstanding immediately prior to the Effective Time Exhibit 2 --------- to Agreement and Plan of Merger ------------------------------- and are held by holders of Common SMGH Preferred Stock who comply with all the provisions of the law of the State of Delaware law concerning the right of holders of Common Stock preferred stock to dissent from the Merger and require appraisal of their shares of Common SMGH Preferred Stock ("Dissenting ShareholdersStockholders") 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 such Dissenting Shareholder Stockholder pursuant to the laws law of the State of Delaware; PROVIDEDprovided, HOWEVER-------- however, that (i) if any Dissenting Shareholder Stockholder shall subsequently deliver a ------- written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder Stockholder fails to establish and perfect his or her entitlement to appraisal rights as provided by applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Stockholder nor the Surviving Corporation has filed a petition demanding determination of the value of all shares of SMGH Preferred Stock outstanding at the Effective Time and held by Dissenting Stockholders in accordance with applicable law, then such Dissenting Shareholder Stockholder or ShareholdersDissenting Stockholders, as the case may be, shall forfeit the right to appraisal of such shares and such shares shall thereupon be deemed to have been converted into the right to receive, as of the Effective Time, the Merger Consideration, without interest. The Corporation SMGH shall give Parent and Sub Pathmark (A) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other related instruments received by the CorporationSMGH, and (B) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal. The Corporation SMGH will not not, except with the prior written consent of Pathmark, voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, or settle or offer to settle any such demand.