Common use of Election and Proration Procedures Clause in Contracts

Election and Proration Procedures. (a) Purchaser shall cause an election statement permitting each holder of an Exchangeable Share the ability to elect consideration pursuant to Section 2.1(b) and subject to 2.1(e) (the “Election Statement”) to be mailed with the Joint Proxy Statement on the date of mailing of the Joint Proxy Statement to each holder of record of Company Common Stock, Series B Preferred Stock and Class C Warrants as of the record date for the Company Shareholder Meeting (the “Record Date”). (b) Each Election Statement shall permit the holder to elect to receive (i) the Per Share Stock Consideration in respect of all of such holder’s Exchangeable Shares (“Stock Election Shares”); (ii) the Per Share Cash Consideration in respect of all of such holder’s Exchangeable Shares (“Cash Election Shares”); or (iii) the Per Share Stock Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Stock Percentage, rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Cash Percentage, rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”). If a holder makes no election with respect to such holder’s Exchangeable Shares, or if there are any Exchangeable Shares with respect to which the Exchange Agent has not otherwise received an effective, properly completed Election Statement on or before 5:00 p.m., Pacific Time, on the date prior to the Determination Date (or such other time and date as Purchaser and Company may mutually agree) (the “Election Deadline”), such shares shall be deemed to be “No Election Shares.”

Election and Proration Procedures. (a) Purchaser Wilshire shall cause an election statement permitting each holder of an Exchangeable Share a share of Saehan Common Stock the ability to elect consideration pursuant to Section 2.1(b2.2(b) and subject to 2.1(e2.2(e) (the “Election Statement”) to be mailed with the Joint Proxy Statement Statement/Prospectus on the date of mailing of the Joint Proxy Statement Statement/Prospectus to each holder of record of Company Saehan Common Stock, Series B Preferred Stock and Class C Warrants as of the record date for the Company Shareholder Meeting (the “Record Date”). (b) Each Election Statement shall permit the holder to elect to receive (i) the Per Share Stock Consideration in respect of all of such holder’s Exchangeable Shares Saehan Common Stock (“Stock Election Shares”); (ii) the Per Share Cash Consideration in respect of all of such holder’s Exchangeable Shares Saehan Common Stock (“Cash Election Shares”); or (iii) the Per Share Stock Consideration in respect of that portion of such holder’s Exchangeable Shares Saehan Common Stock equal to the Stock Percentage, rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder’s Exchangeable Shares Saehan Common Stock equal to the Cash Percentage, rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”). If a holder makes no election with respect to such holder’s Exchangeable Sharesshares of Saehan Common Stock, or if there are any Exchangeable Shares shares of Saehan Common Stock with respect to which the Exchange Agent has not otherwise received an effective, properly completed Election Statement on or before 5:00 p.m., Pacific Time, on the date prior to the Determination Date (or such other time and date as Purchaser Wilshire and Company Saehan may mutually agree) (the “Election Deadline”), such shares shall be deemed to be “No Election Shares.”

Election and Proration Procedures. (ai) Purchaser As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with an election statement permitting each holder exchange agent selected by Parent, with the Company's prior approval, which shall not be unreasonably withheld or delayed (the "Exchange Agent"), for the benefit of an Exchangeable Share the ability holders of Certificates representing Company Securities issued and outstanding immediately prior to elect consideration the Effective Time, the shares of Parent Common Stock, cash and any dividends or other distributions with respect to the Parent Common Stock to be issued or paid pursuant to Section 2.1(b4.1 and this Section 4.2 in exchange for such Company Securities upon due surrender of such Certificates pursuant to the provisions of this Article IV (such cash and certificates representing shares of Parent Common Stock, together with any dividends or other distributions payable with respect thereto, being hereinafter referred to as the "Exchange Fund"). (ii) Provided the Average Parent Share Price is greater than or equal to the Floor Price, and subject to 2.1(eallocation and proration in accordance with the provisions of this Section 4.2, each record holder of Shares and Convertible Preferred Shares (other than Excluded Securities) issued and outstanding immediately prior to the Election Deadline (as defined below) shall be entitled (A) to elect to receive in respect of each such Company Security (x) the applicable Security Cash Consideration (a "Cash Election") or (y) the applicable Security Stock Consideration (a "Stock Election") or (B) to indicate that such record holder has no preference as to the receipt of the applicable Security Cash Consideration or the applicable Security Stock Consideration for such Shares or Convertible Preferred Shares (a "Non-Election"). Shares and Convertible Preferred Shares in respect of which a Non-Election is made (including Shares and Convertible Preferred Shares in respect of which such a Non-Election is deemed to have been made pursuant to this Section 4.2 and Section 4.3 (collectively, "Non-Election Securities") shall be deemed by Parent, in its sole and absolute discretion, subject to Sections 4.2(b)(v)-(vii), to be, in whole or in part, Shares and Convertible Preferred Shares in respect of which Cash Elections or Stock Elections have been made. (iii) Elections pursuant to Section 4.2(b)(ii) shall be made on a form with such provisions as may be reasonably agreed upon by the Company and Parent (a "Form of Election") to be provided by the Exchange Agent for that purpose to record holders of Shares and Convertible Preferred Shares (other than holders of Excluded Securities), together with appropriate transmittal materials, at the time of mailing to holders of record of Company Securities of the Prospectus/Proxy Statement (as defined in Section 6.3) in connection with the Stockholders Meeting referred to in Section 6.4. Elections shall be made by mailing to the Exchange Agent a duly completed Form of Election. To be effective, a Form of Election must be (x) properly completed, signed and submitted to the Exchange Agent at its designated office by 5:00 p.m. on the business day that is two trading days prior to the Closing Date (which date shall be publicly announced by Parent as soon as practicable but in no event less than ten trading days prior to the Closing Date) (the “"Election Statement”Deadline") and (y) accompanied by the Certificate(s) representing the Shares and Convertible Preferred Shares as to be mailed with which the Joint Proxy Statement on election is being made (or by an appropriate guarantee of delivery of such Certificate(s) by a commercial bank or trust company in the United States or a member of a registered national security exchange or of the National Association of Securities Dealers, Inc., provided that such Certificates are in fact delivered to the Exchange Agent within five trading days after the date of execution of such guarantee of delivery). The Company shall use its best efforts to make a Form of Election available to all Persons who become holders of record of Shares or Convertible Preferred Shares (other than Excluded Securities) between the date of mailing described in the first sentence of this Section 4.2(b)(iii) and the Joint Proxy Statement Election Deadline. Parent shall determine, in its sole and absolute discretion, which authority it may delegate in whole or in part to each the Exchange Agent, whether Forms of Election have been properly completed, signed and submitted or revoked. The decision of Parent (or the Exchange Agent, as the case may be) in such matters shall be conclusive and binding. Neither Parent nor the Exchange Agent will be under any obligation to notify any Person of any defect in a Form of Election submitted to the Exchange Agent. A holder of record Shares or Convertible Preferred Shares that does not submit an effective Form of Company Common Stock, Series B Preferred Stock and Class C Warrants as of Election prior to the record date for the Company Shareholder Meeting (the “Record Date”)Election Deadline shall be deemed to have made a Non-Election. (biv) Each An election pursuant to Section 4.2(b)(ii) may be revoked, but only by written notice received by the Exchange Agent prior to the Election Statement Deadline. Any Certificate(s) representing Company Securities that have been submitted to the Exchange Agent in connection with an election shall permit be returned without charge to the holder thereof in the event such election is revoked as aforesaid and such holder requests in writing the return of such Certificate(s). Upon any such revocation, unless a duly completed Form of Election is thereafter submitted prior to elect the Election Deadline in accordance with paragraph (b)(iii), such Shares and Convertible Preferred Shares shall be deemed Non-Election Securities. In the event that this Agreement is terminated pursuant to receive the provisions hereof and any Company Securities have been transmitted to the Exchange Agent pursuant to the provisions hereof, such Company Securities shall promptly be returned without charge to the Person (ias defined below) submitting the Per same. (v) In the event that the aggregate number of Share Stock Consideration Equivalents represented by the outstanding Shares and Convertible Preferred Shares in respect of which Cash Elections have been made exceeds the Cash Election Number, (a) all Shares and Convertible Preferred Shares in respect of such holder’s Exchangeable Shares which Stock Elections have been made or are deemed to have been made (“the "Stock Election Shares”); Securities") shall be converted into the right to receive the applicable Securities Stock Consideration, and (iib) all Non-Election Securities and Shares and Convertible Preferred Shares in respect of which Cash Elections have been made shall be converted into the Per Share right to receive the respective applicable Security Stock Consideration or Security Cash Consideration in respect of the following order and manner: (A) first, all of such holder’s Exchangeable Shares (“Cash Non-Election Shares”); or (iii) the Per Share Stock Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Stock Percentage, rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Cash Percentage, rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”). If a holder makes no election with respect to such holder’s Exchangeable Shares, or if there are any Exchangeable Shares with respect to which the Exchange Agent has not otherwise received an effective, properly completed Election Statement on or before 5:00 p.m., Pacific Time, on the date prior to the Determination Date (or such other time and date as Purchaser and Company may mutually agree) (the “Election Deadline”), such shares Securities shall be deemed to be “Shares and Convertible Preferred Shares in respect of which Stock Elections have been made and treated as Stock Election Securities; (B) second, if necessary, an aggregate number of shares and Convertible Preferred Shares in respect of which Cash Elections have been made shall be deemed converted into and treated as Stock Election Securities, (such aggregate number to be apportioned pro-rata among record holders of such Shares and Convertible Preferred Shares, based on the number of Share Equivalents represented thereby), so that the number of Share Equivalents represented by the Shares and Convertible Preferred Shares so converted, when added to the Share Equivalents represented by all other Stock Election Securities (including Non-Election Securities deemed to be Stock Election Securities), shall equal as closely as practicable, the Stock Election Number; and (C) third, any remaining Shares and Convertible Preferred Shares in respect of which Cash Elections have been made and all Class B Preferred Shares shall be converted into the right to receive the applicable Security Cash Consideration. (vi) In the event that the aggregate number of Share Equivalents represented by the outstanding Shares and Convertible Preferred Shares in respect of which Stock Elections have been made exceeds the Stock Election Number, (a) all Shares and Convertible Preferred Shares in respect of which Cash Elections have been made or are deemed to have been made (the "Cash Election Securities") and all Class B Preferred Shares shall be converted into the right to receive the applicable Securities Cash Consideration, and (b) all Non-Election Securities and Shares and Convertible Preferred Shares in respect of which Stock Elections have been made shall be converted into the right to receive the respective applicable Security Cash Consideration and Security Stock Consideration in the following order and manner: (A) first, all Non-Election Securities shall be deemed to be Shares and Convertible Preferred Shares in respect of which Cash Elections have been made and treated as Cash Election Securities; (B) second, if necessary, an aggregate number of shares and Convertible Preferred Shares in respect of which Stock Elections have been made shall be deemed converted into and treated as Cash Election Securities, such aggregate number to be apportioned pro-rata among record holders of such Shares and Convertible Preferred Shares, based on the number of Share Equivalents represented thereby), so that the number of Share Equivalents represented by the Shares and Convertible Preferred Shares so converted, when added to the Share Equivalents represented by all Class B Preferred Shares and all other Cash Election Securities (including Non-Election Securities to be deemed Cash Election Securities), shall equal as closely as practicable the Cash Election Number; and (C) third, any remaining Shares and Convertible Preferred Shares in respect of which Stock Elections have been made shall be converted into the right to receive the applicable Security Stock Consideration. (vii) In the event that clauses (v) and (vi) of this Section 4.2(b) are not applicable, all Non-Election Securities shall be deemed by Parent, in its sole and absolute discretion, subject to Section 4.2(a), to be, in whole or in part, Shares and Convertible Preferred Shares in respect of which Cash Elections or Stock Elections have been made, as applicable. (viii) The Exchange Agent, in consultation with Parent and the Company, shall make all computations to give effect to this Section 4.2. (ix) Subject to this Section 4.2(b) and Section 4.2(h), upon surrender of a Certificate representing Stock Election Securities for cancellation to the Exchange Agent together with a duly completed Form of Election, the holder of such Certificate shall be entitled to receive (a) a certificate representing that number of whole shares of Parent Common Stock that such holder is entitled to receive pursuant to this Article IV, (b) a check in the amount (after giving effect to any required tax withholdings) of (x) any cash in lieu of fractional shares plus (y) any unpaid non-stock dividends and any other dividends or other distributions that such holder has the right to receive pursuant to the provisions of this Article IV, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates representing Stock Election SharesSecurities. In the event of a transfer of ownership of Company Securities that is not registered in the transfer records of the Company, the applicable Stock Merger Consideration payable in respect of such Company Securities may be issued and/or paid to such a transferee if the Certificate formerly representing such Company Securities is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person (as defined below) requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of certificates for shares of Parent Common Stock in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of Parent or the Exchange Agent that such tax has been paid or is not applicable.” (x) Subject to this Section 4.2(b) and Section 4.2(h), upon surrender of a Certificate representing Cash Election Securities (or, if the Average Parent Share Price is less than (or pursuant to Section 4.2(a)(iv), is, at Parent's option, treated as being less than) the Floor Price, any Company Securities) for cancellation to the Exchange Agent together with a duly completed Form of Election, the holder of such Certificate shall be entitled to receive a check in the amount such holder is entitled to receive pursuant to this Article IV, and the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Company Securities that is not registered in the transfer records of the Company, the applicable Cash Merger Consideration payable in respect of such Company Securities may be issued and/or paid to such a transferee if the Certificate formerly representing such Company Securities is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. For the purposes of this Agreement, the term "Person" shall mean any individual, corporation (including not-for-profit entity), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity (as defined in Section 5.1(d) or other entity of any kind or nature.

Election and Proration Procedures. (a) Purchaser shall cause As promptly as practicable after the Effective Time, but in any event no later than five (5) business days after the Effective Time, an election statement permitting each holder of form (an Exchangeable Share the ability to elect consideration pursuant to Section 2.1(b) and subject to 2.1(e) (the “Election StatementForm”) to ), together with the transmittal materials described in Section 3.3 below, shall be mailed with the Joint Proxy Statement on the date of mailing of the Joint Proxy Statement to each holder of Clover Common Stock of record at the Effective Time (including, for the avoidance of Company Common Stockdoubt, Series B holders of Clover Preferred Stock whose shares automatically convert into Clover Common Stock at the Effective Time) by the exchange agent selected by Buyer and Class C Warrants as of the record date for the Company Shareholder Meeting reasonably acceptable to Clover (the “Record DateExchange Agent”). Clover shall provide all information reasonably necessary for the Exchange Agent to perform its obligations as specified herein. (b) Each Subject to the provisions of this Article 3 (including, without limitation, Sections 3.2(d) and (e)), each Election Statement Form shall permit entitle the holder of Clover Common Stock (or the beneficial owner through appropriate and customary documentation and instructions) to elect to receive (i) the Per Share Stock Cash Consideration in respect of for all of such holder’s Exchangeable Shares shares (a “Stock Election SharesCash Election”); , (ii) the Per Share Cash Stock Consideration in respect of for all of such holder’s Exchangeable Shares shares (a “Stock Election”), (iii) a mixture of Cash Consideration and Stock Consideration in such proportion as the holder shall elect for all of such holder’s shares (a “Mixed Election”), or (iv) make no election (a “Non-Election”). Holders of record of Clover Common Stock who hold such shares as nominees, trustees or in other representative capacity (a “Holder Representative”) may submit multiple Election Forms, provided that such Holder Representative certifies that each such Election Form covers all of the shares of Clover Common Stock held by that Holder Representative for a particular beneficial owner. The shares of Clover Common Stock as to which a Cash Election has been made (including pursuant to a Mixed Election) are referred to herein as “Cash Election Shares”); or (iii) ” and the Per Share Stock Consideration in respect of that portion of such holder’s Exchangeable Shares equal aggregate number thereof is referred to the Stock Percentage, rounded to the nearest whole share (as the “Cash Election Number”. The shares of Clover Common Stock as to which a Stock Election has been made (including pursuant to a Mixed Election) are referred to herein as “Stock Election Shares”), ” and the Per Share Cash Consideration in respect of that portion of such holder’s Exchangeable Shares equal aggregate number thereof is referred to the Cash Percentage, rounded to the nearest whole share (herein as the “Mixed Cash Shares,Stock Election Number.” and Shares of Clover Common Stock as to which no election has been made (or as to which an Election Form is not properly completed or returned in a timely fashion, together with the Mixed Stock Shares, the all Certificates (if shares are held in certificated form)) are referred to as “Mixed Election Shares”). If a holder makes no election with respect to such holder’s Exchangeable Shares, or if there are any Exchangeable Shares with respect to which the Exchange Agent has not otherwise received an effective, properly completed Election Statement on or before 5:00 p.m., Pacific Time, on the date prior to the Determination Date (or such other time and date as Purchaser and Company may mutually agree) (the “Election Deadline”), such shares shall be deemed to be “No Non-Election Shares.”

Election and Proration Procedures. (a) Purchaser CVCY shall cause an election statement permitting each holder of an Exchangeable Share the ability to elect consideration pursuant to Section 2.1(b2.3(a) and subject to 2.1(e2.4(e) (the “Election Statement”) to be mailed with the Joint Proxy Statement on the date of mailing of the Joint Proxy Statement to each holder of record of Company SVBank Common Stock, Series B Preferred Stock and Class C Warrants as of the record date for the Company SVBank Shareholder Meeting (the “Record Date”). (b) Each Election Statement shall permit the holder to elect to receive (i) the Per Share Stock Consideration in respect of all of such holder’s Exchangeable Shares (“Stock Election Shares”); (ii) the Per Share Cash Consideration in respect of all of such holder’s Exchangeable Shares (“Cash Election Shares”); or (iii) the Per Share Stock Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Stock Percentage, rounded to the nearest whole share (the “Mixed Stock Shares”) (with, for the avoidance of doubt, cash in lieu of any fractional shares in accordance with Section 2.3(b)), and the Per Share Cash Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Cash Percentage, rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”). If a holder makes no election with respect to such holder’s Exchangeable Shares, or if there are any Exchangeable Shares with respect to which the Exchange Agent has not otherwise received an effective, properly completed Election Statement on or before 5:00 p.m., Pacific Time, on the date prior to the Determination Date (or such other time and date as Purchaser CVCY and Company SVBank may mutually agree) (the “Election Deadline”), such shares shall be deemed to be “No Election Shares.” (c) CVCY shall make available one or more Election Statements as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of SVBank Common Stock between the Record Date and the close of business on the business day prior to the Election Deadline, and SVBank shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein. (d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Statement by the Election Deadline, and such election is not revoked or changed prior to the Election Deadline. Any Election Statement may be revoked or changed by the person submitting such Election Statement at or prior to the Election Deadline. Subject to the terms of this Agreement and of the Election Statement, the Exchange Agent shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in the Election Statements, and any good faith decisions of CVCY regarding such matters shall be binding and conclusive. Neither CVCY nor the Exchange Agent shall be under any obligation to notify any person of any defect in an Election Statement. To the extent the holder of Dissenting Shares submits an Election Statement, such holder’s election shall have no effect, the Exchange Agent will disregard such Election Statement, and the Dissenting Shares shall be converted in accordance with Section 1.4(f). (e) Within ten (10) business days after the Election Deadline, unless the Effective Time has not yet occurred, in which case as soon thereafter as practicable, CVCY shall cause the Exchange Agent to effect the allocation among the holders of Exchangeable Shares of rights to receive CVCY Common Stock or cash in the Merger in accordance with the Election Statements as follows:

Election and Proration Procedures. (ai) Purchaser As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with an election statement permitting each holder exchange agent selected by Parent, with the Company's prior approval, which shall not be unreasonably withheld or delayed (the "Exchange Agent"), for the benefit of an Exchangeable Share the ability holders of Certificates representing Company Securities issued and outstanding immediately prior to elect consideration the Effective Time, the shares of Parent Common Stock, cash and any dividends or other distributions with respect to the Parent Common Stock to be issued or paid pursuant to Section 2.1(b4.1 and this Section 4.2 in exchange for such Company Securities upon due surrender of such Certificates pursuant to the provisions of this Article IV (such cash and certificates representing shares of Parent Common Stock, together with any dividends or other distributions payable with respect thereto, being hereinafter referred to as the "Exchange Fund"). (ii) Provided the Average Parent Share Price is greater than or equal to the Floor Price, and subject to 2.1(eallocation and proration in accordance with the provisions of this Section 4.2, each record holder of Shares and Convertible Preferred Shares (other than Excluded Securities) issued and outstanding immediately prior to the Election Deadline (as defined below) shall be entitled (A) to elect to receive in respect of each such Company Security (x) the applicable Security Cash Consideration (a "Cash Election") or (y) the applicable Security Stock Consideration (a "Stock Election") or (B) to indicate that such record holder has no preference as to the receipt of the applicable Security Cash Consideration or the applicable Security Stock Consideration for such Shares or Convertible Preferred Shares (a "Non-Election"). Shares and Convertible Preferred Shares in respect of which a Non-Election is made (including Shares and Convertible Preferred Shares in respect of which such a Non-Election is deemed to have been made pursuant to this Section 4.2 and Section 4.3 (collectively, "Non-Election Securities") shall be deemed by Parent, in its sole and absolute discretion, subject to Sections 4.2(b)(v)-(vii), to be, in whole or in part, Shares and Convertible Preferred Shares in respect of which Cash Elections or Stock Elections have been made. (iii) Elections pursuant to Section 4.2(b)(ii) shall be made on a form with such provisions as may be reasonably agreed upon by the Company and Parent (a "Form of Election") to be provided by the Exchange Agent for that purpose to record holders of Shares and Convertible Preferred Shares (other than holders of Excluded Securities), together with appropriate transmittal materials, at the time of mailing to holders of record of Company Securities of the Prospectus/Proxy Statement (as defined in Section 6.3) in connection with the Stockholders Meeting referred to in Section 6.4. Elections shall be made by mailing to the Exchange Agent a duly completed Form of Election. To be effective, a Form of Election must be (x) properly completed, signed and submitted to the Exchange Agent at its designated office by 5:00 p.m. on the business day that is two trading days prior to the Closing Date (which date shall be publicly announced by Parent as soon as practicable but in no event less than ten trading days prior to the Closing Date) (the “"Election Statement”Deadline") and (y) accompanied by the Certificate(s) representing the Shares and Convertible Preferred Shares as to be mailed with which the Joint Proxy Statement on election is being made (or by an appropriate guarantee of delivery of such Certificate(s) by a commercial bank or trust company in the United States or a member of a registered national security exchange or of the National Association of Securities Dealers, Inc., provided that such Certificates are in fact delivered to the Exchange Agent within five trading days after the date of execution of such guarantee of delivery). The Company shall use its best efforts to make a Form of Election available to all Persons who become holders of record of Shares or Convertible Preferred Shares (other than Excluded Securities) between the date of mailing described in the first sentence of this Section 4.2(b)(iii) and the Joint Proxy Statement Election Deadline. Parent shall determine, in its sole and absolute discretion, which authority it may delegate in whole or in part to each the Exchange Agent, whether Forms of Election have been properly completed, signed and submitted or revoked. The decision of Parent (or the Exchange Agent, as the case may be) in such matters shall be conclusive and binding. Neither Parent nor the Exchange Agent will be under any obligation to notify any Person of any defect in a Form of Election submitted to the Exchange Agent. A holder of record Shares or Convertible Preferred Shares that does not submit an effective Form of Company Common Stock, Series B Preferred Stock and Class C Warrants as of Election prior to the record date for the Company Shareholder Meeting (the “Record Date”)Election Deadline shall be deemed to have made a Non-Election. (biv) Each An election pursuant to Section 4.2(b)(ii) may be revoked, but only by written notice received by the Exchange Agent prior to the Election Statement Deadline. Any Certificate(s) representing Company Securities that have been submitted to the Exchange Agent in connection with an election shall permit be returned without charge to the holder thereof in the event such election is revoked as aforesaid and such holder requests in writing the return of such Certificate(s). Upon any such revocation, unless a duly completed Form of Election is thereafter submitted prior to elect the Election Deadline in accordance with paragraph (b)(iii), such Shares and Convertible Preferred Shares shall be deemed Non-Election Securities. In the event that this Agreement is terminated pursuant to receive the provisions hereof and any Company Securities have been transmitted to the Exchange Agent pursuant to the provisions hereof, such Company Securities shall promptly be returned without charge to the Person (ias defined below) submitting the Per same. (v) In the event that the aggregate number of Share Stock Consideration Equivalents represented by the outstanding Shares and Convertible Preferred Shares in respect of which Cash Elections have been made exceeds the Cash Election Number, (a) all Shares and Convertible Preferred Shares in respect of such holder’s Exchangeable Shares which Stock Elections have been made or are deemed to have been made (“the "Stock Election Shares”); Securities") shall be converted into the right to receive the applicable Securities Stock Consideration, and (iib) all Non-Election Securities and Shares and Convertible Preferred Shares in respect of which Cash Elections have been made shall be converted into the Per Share right to receive the respective applicable Security Stock Consideration or Security Cash Consideration in respect of the following order and manner: (A) first, all of such holder’s Exchangeable Shares (“Cash Non-Election Shares”); or (iii) the Per Share Stock Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Stock Percentage, rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder’s Exchangeable Shares equal to the Cash Percentage, rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”). If a holder makes no election with respect to such holder’s Exchangeable Shares, or if there are any Exchangeable Shares with respect to which the Exchange Agent has not otherwise received an effective, properly completed Election Statement on or before 5:00 p.m., Pacific Time, on the date prior to the Determination Date (or such other time and date as Purchaser and Company may mutually agree) (the “Election Deadline”), such shares Securities shall be deemed to be “Shares and Convertible Preferred Shares in respect of which Stock Elections have been made and treated as Stock Election Securities; (B) second, if necessary, an aggregate number of shares and Convertible Preferred Shares in respect of which Cash Elections have been made shall be deemed converted into and treated as Stock Election Securities, (such aggregate number to be apportioned pro-rata among record holders of such Shares and Convertible Preferred Shares, based on the number of Share Equivalents represented thereby), so that the number of Share Equivalents represented by the Shares and Convertible Preferred Shares so converted, when added to the Share Equivalents represented by all other Stock Election Securities (including Non- Election Securities deemed to be Stock Election Securities), shall equal as closely as practicable, the Stock Election Number; and (C) third, any remaining Shares and Convertible Preferred Shares in respect of which Cash Elections have been made and all Class B Preferred Shares shall be converted into the right to receive the applicable Security Cash Consideration. (vi) In the event that the aggregate number of Share Equivalents represented by the outstanding Shares and Convertible Preferred Shares in respect of which Stock Elections have been made exceeds the Stock Election Number, (a) all Shares and Convertible Preferred Shares in respect of which Cash Elections have been made or are deemed to have been made (the "Cash Election Securities") and all Class B Preferred Shares shall be converted into the right to receive the applicable Securities Cash Consideration, and (b) all Non-Election Securities and Shares and Convertible Preferred Shares in respect of which Stock Elections have been made shall be converted into the right to receive the respective applicable Security Cash Consideration and Security Stock Consideration in the following order and manner: (A) first, all Non-Election Securities shall be deemed to be Shares and Convertible Preferred Shares in respect of which Cash Elections have been made and treated as Cash Election Securities; (B) second, if necessary, an aggregate number of shares and Convertible Preferred Shares in respect of which Stock Elections have been made shall be deemed converted into and treated as Cash Election Securities, such aggregate number to be apportioned pro-rata among record holders of such Shares and Convertible Preferred Shares, based on the number of Share Equivalents represented thereby), so that the number of Share Equivalents represented by the Shares and Convertible Preferred Shares so converted, when added to the Share Equivalents represented by all Class B Preferred Shares and all other Cash Election Securities (including Non-Election Securities to be deemed Cash Election Securities), shall equal as closely as practicable the Cash Election Number; and (C) third, any remaining Shares and Convertible Preferred Shares in respect of which Stock Elections have been made shall be converted into the right to receive the applicable Security Stock Consideration. (vii) In the event that clauses (v) and (vi) of this Section 4.2(b) are not applicable, all Non-Election Securities shall be deemed by Parent, in its sole and absolute discretion, subject to Section 4.2(a), to be, in whole or in part, Shares and Convertible Preferred Shares in respect of which Cash Elections or Stock Elections have been made, as applicable. (viii) The Exchange Agent, in consultation with Parent and the Company, shall make all computations to give effect to this Section 4.2. (ix) Subject to this Section 4.2(b) and Section 4.2(h), upon surrender of a Certificate representing Stock Election Securities for cancellation to the Exchange Agent together with a duly completed Form of Election, the holder of such Certificate shall be entitled to receive (a) a certificate representing that number of whole shares of Parent Common Stock that such holder is entitled to receive pursuant to this Article IV, (b) a check in the amount (after giving effect to any required tax withholdings) of (x) any cash in lieu of fractional shares plus (y) any unpaid non-stock dividends and any other dividends or other distributions that such holder has the right to receive pursuant to the provisions of this Article IV, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates representing Stock Election SharesSecurities. In the event of a transfer of ownership of Company Securities that is not registered in the transfer records of the Company, the applicable Stock Merger Consideration payable in respect of such Company Securities may be issued and/or paid to such a transferee if the Certificate formerly representing such Company Securities is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person (as defined below) requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of certificates for shares of Parent Common Stock in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of Parent or the Exchange Agent that such tax has been paid or is not applicable.” (x) Subject to this Section 4.2(b) and Section 4.2(h), upon surrender of a Certificate representing Cash Election Securities (or, if the Average Parent Share Price is less than (or pursuant to Section 4.2(a)(iv), is, at Parent's option, treated as being less than) the Floor Price, any Company Securities) for cancellation to the Exchange Agent together with a duly completed Form of Election, the holder of such Certificate shall be entitled to receive a check in the amount such holder is entitled to receive pursuant to this Article IV, and the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Company Securities that is not registered in the transfer records of the Company, the applicable Cash Merger Consideration payable in respect of such Company Securities may be issued and/or paid to such a transferee if the Certificate formerly representing such Company Securities is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. For the purposes of this Agreement, the term "Person" shall mean any individual, corporation (including not-for-profit entity), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity (as defined in Section 5.1(d) or other entity of any kind or nature.

Election and Proration Procedures. (a) Purchaser shall cause an 2.2.1 An election statement permitting each holder of an Exchangeable Share Stockmans Common Stock the ability to elect consideration pursuant to Section 2.1(b) 2.2.2 and subject to 2.1(e) 2.2.5 (the “Election Statement”) to shall be mailed with within five days following the Joint Proxy Statement on the date of mailing later of the Joint Proxy Statement to each holder of record of Company Common Stock, Series B Preferred Stock and Class C Warrants as end of the record date for Company Measuring Period or the Company Shareholder Meeting (the “Record Date”)Stockmans Meeting. (b) 2.2.2 Each Election Statement shall permit the holder to (a) elect to receive (i) the Per Share Stock Consideration in respect of all of such holder’s Exchangeable Shares Stockmans Common Stock (“Stock Election Shares”); (ii) the Per Share Cash Consideration in respect of all of such holder’s Exchangeable Shares Stockmans Common Stock (“Cash Election Shares”); or (iii) a combination of the Per Share Stock Consideration in respect of that portion of such holder’s Exchangeable Shares shares of Stockmans Common Stock equal to the Stock Percentage, rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder’s Exchangeable Shares shares of Stockmans Common Stock equal to the Cash Percentage, rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”). If a holder makes ; or (b) to make no election with respect to such holder’s Exchangeable Stockmans Common Stock (“No Election Shares, or if there are any Exchangeable Shares ”). Any Stockmans Common Stock with respect to which the Exchange Agent has not otherwise received an effective, properly completed Election Statement on or before 5:00 p.m., Pacific Time, on the date prior to thirtieth day following the Determination Effective Date (or such other time and date as Purchaser Company and Company Stockmans may mutually agree) agree (the “Election Deadline”), such shares ) shall also be deemed to be “No Election Shares.”” “Cash Percentage” shall mean the quotient, rounded to the nearest thousandth, obtained by dividing (x) the quotient obtained by dividing the Total Cash Amount by the Per Share Consideration, by (y) the total number of shares of Stockmans Common Stock outstanding as of the close of business on the Effective Date.