Common use of Entire Agreement; No Third-Party Beneficiaries Clause in Contracts

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; (b) are not intended to confer upon any person other than the parties any rights, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, Agreement (including the Company Disclosure Schedule, Letter and the Parent Disclosure ScheduleLetter and all other exhibits and schedules hereto), and the Confidentiality Agreement (a) and the CCR Agreement constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and, except for the Confidentiality Agreement; provisions of Section 8.13 (b) are not intended which is enforceable by each Finance Related Party), nothing herein express or implied shall give or be construed to confer upon give any person person, other than the parties hereto and such successors and assigns, any rights, benefits legal or remediesequitable rights hereunder, other than (i) in respect of the rights of each Indemnified Party set forth in Section 5.05 from and after the Effective Time. Notwithstanding the immediately preceding sentence, following the Effective Time, the provisions of Article II relating to indemnification and insurance the payment of the Merger Consideration, any dividends or other distributions payable pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries2.02(c) or Section 2.02(j), (iicash in lieu of any fractional shares payable pursuant to Section 2.02(i) the rights of the Company’s stockholders and amounts payable pursuant to Section 2.05(a), Section 2.05(b) or Section 2.05(c) shall be enforceable by holders of Company Incentive Awards Common Stock, Company Stock Options, Company RSUs (including Company PSUs) and Director DSUs, at or immediately prior to pursue claims for the Effective Time as provided therein. Notwithstanding the foregoing, in any suit in which the Company shall have been adjudged to have the right to recover damages and other relief, including equitable relief, for Parent’s or Merger Sub’s from Parent due to the willful and material breach of this Agreement; providedAgreement by Parent, however, that the rights granted pursuant to this clause (ii) shall only be enforceable damages recoverable by the Company for itself and on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or shall be determined by reference to the total amount that would have been recoverable by such holders of Company Incentive Awards if all such holders brought an action against Parent and were recognized as of third party beneficiaries hereunder. (b) Except for the representations and warranties contained in Section 3.01 and in any date determined certificate delivered by the Company to TopCo or (y) retained by Parent in accordance with the terms of this Agreement, each of TopCo and Parent acknowledges that neither the Company for the use and benefit nor any person on behalf of the Company in makes any manner other express or implied representation or warranty with respect to the Company deems fit; provided, further, however, that under no circumstances shall or any such rights of holders of its Subsidiaries or with respect to any other information provided to TopCo or Parent in connection with the Transactions. Neither the Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by nor any other person acting will have or be subject to, as a result of this Agreement, any liability or indemnification obligation to TopCo, Parent or any other person resulting from the distribution to TopCo or Parent, or TopCo’s or Parent’s use of, any such information, including any information, documents, projections, forecasts or other material made available to TopCo or Parent in certain “data rooms” or management presentations in expectation of the Transactions, unless and then only to the extent that any such information is expressly included in a representation or warranty contained in Section 3.01. (c) Except for the representations and warranties contained in Section 3.02 and in any certificate delivered by TopCo or Parent to the Company in accordance with the terms of this Agreement, the Company acknowledges that none of TopCo, Parent or any other person on their behalf of TopCo or Parent makes any other than express or implied representation or warranty with respect to TopCo or Parent or with respect to any other information provided to the Company in connection with the Transactions. None of TopCo or Parent or any other person will have or be subject to, as a result of this Agreement, any liability or indemnification obligation to the Company or any other person resulting from the distribution to the Company; and (iii) after the Effective Time, the rights of or the Company’s stockholders use of, any such information, including any information, documents, projections, forecasts or other material made available to receive the Merger Consideration and Company in certain “data rooms” or management presentations in expectation of the holders of Company Incentive Awards Transactions, unless and then only to receive the benefits of Article II hereofextent that any such information is expressly included in a representation or warranty contained in Section 3.02.

Entire Agreement; No Third-Party Beneficiaries. This AgreementAgreement and the Ancillary Agreements, including the Company Disclosure ScheduleExhibits and Schedules thereto, the Parent Disclosure Schedule, and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter Transactions. Except for (a) Section 6.05 (Indemnification), and (b) the right of the Company on behalf of its shareholders and option holders to pursue damages (including claims for damages based on loss of the economic benefits of the Transactions to the Company’s shareholders and option holders) in the event of Parent’s or Merger Sub’s breach of this Agreement (whether or not the Agreement has been terminated), which right is hereby expressly acknowledged and agreed by Parent and Merger Sub, this Agreement and the Confidentiality Agreement; (b) Ancillary Agreements, including the Exhibits and Schedules thereto, are not intended to confer upon any person Person other than the parties any rights, benefits rights or remedies. The third-party beneficiaries referenced in clause (b) of the preceding sentence may be exercised only by the Company (on behalf of its shareholders as their agent) through action expressly approved by the Company Board, other than and no shareholder or option holder of the Company whether purporting to act in its capacity as a shareholder or option holder purporting to assert any right (iderivatively or otherwise) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights on behalf of the Company’s stockholders , shall have any right or ability to exercise or cause the exercise of any such right. The parties hereto have voluntarily agreed to define their rights, liabilities and holders obligations respecting the acquisition of the Company Incentive Awards exclusively in contract pursuant to pursue claims for damages the express terms and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach provisions of this Agreement; providedand the parties hereto expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement. Furthermore, however, the parties each hereby acknowledge that this Agreement embodies the rights granted pursuant justifiable expectations of sophisticated parties derived from arm’s-length negotiations; all parties to this clause (ii) shall only be enforceable by the Company on behalf Agreement specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of such stockholders an ordinary buyer and holders of Company Incentive Awards an ordinary seller in the Company’s an arm’s-length transaction. The sole and absolute discretion exclusive remedies for any breach of the terms and provisions of this Agreement (including any representations and not directly by any such stockholder or holder)warranties set forth herein, it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company made in connection therewithherewith or as an inducement to enter into this Agreement) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company any claim or cause of action otherwise arising out of or related to the holders acquisition of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or the other Transactions or this Agreement shall be those remedies available at law or in equity for breach of contract only (y) retained by as such contractual remedies have been further limited or excluded pursuant to the Company for the use and benefit express terms of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Companythis Agreement); and the parties hereby agree that neither party hereto shall have any remedies or cause of action (iiiwhether in contract or in tort) after the Effective Timefor any statements, the rights of the Company’s stockholders communications, disclosures, failures to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofdisclose, representations or warranties not set forth in this Agreement.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, the Parent Disclosure Schedule, exhibits and schedules hereto) and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among between the parties parties, or any of them, with respect to the subject matter of hereof and thereof. Nothing in this Agreement and the Confidentiality Agreement; (b) are not , express or implied, is intended to or shall confer upon any person (other than the parties hereto) any rightsright, benefits benefit or remedies, other than remedy of any nature whatsoever under or by reason of this Agreement except for (i) the rights rights, benefits and remedies granted to indemnification and insurance pursuant to the Indemnified Parties under Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries)5.12, (ii) the rights of the holders of Company Common Stock to receive the Merger Consideration, and the rights of holders of Company Stock Options to receive Parent Exchange Options in accordance with the provisions of this Agreement and (iii) the rights of the Company Employees granted under Sections 2.4 and 5.7, and (iv) the right of the Company’s stockholders , on behalf of the holders of Company Common Stock and holders of Company Incentive Awards Stock Options, to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material intentional breach of this Agreement; , fraud, wrongful repudiation or termination of this Agreement, or wrongful failure to consummate the Merger, provided, however, that the rights granted pursuant to this clause (iiiv) of this Section 8.11 shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive Stock Options by the benefits of Article II hereofCompany in its sole and absolute discretion.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, Agreement and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter of this Agreement and the Confidentiality Agreement; (b) are not intended to and do not confer upon any person Person other than the parties hereto any rights, benefits rights or remediesremedies hereunder, other than (i) the rights Persons intended to indemnification and insurance pursuant benefit from the provisions of Section 6.10, each of whom shall have the right to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries)enforce such provisions directly, (ii) the rights right of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and its security holders of Company Incentive Awards to pursue damages in the event of Parent’s, Merger Sub I’s or Merger Sub II’s breach of this Agreement (a claim with respect to which shall be enforceable only by the Company’s , in its sole and absolute discretion (and not directly by any such stockholder or holder)discreton, it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit on behalf of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; Shareholders) and (iii) after the Effective Time, the rights right of the Company’s stockholders Company Shareholders to receive the Merger Consideration and of the holders of Company Incentive Awards Stock Options, Company Phantom Units, Company Restricted Stock Rights and Company Warrants to receive the benefits payments to which they have the right to receive pursuant to Section 2.06 and Section 2.08, respectively, after the Closing (a claim with respect to which may not be made unless and until the First Effective Time shall have occurred). The representations, warranties, covenants and agreements in this Agreement are the product of Article II hereofnegotiations among the parties and are for the sole benefit of the parties and may, in certain instances, be qualified, limited or changed by confidential disclosure letters. Any inaccuracies in such representations or warranties or failure to perform or breach of such covenants or agreements are subject to waiver by the parties in accordance with Section 8.05 without notice or liability to any other Person. In some instances, the representations, warranties, covenants and agreements in this Agreement may represent an allocation among the parties of risk associated with particular matters regardless of the knowledge of any of the parties. Consequently, Persons other than the parties may not rely upon the representations, warranties, covenants and agreements in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

Entire Agreement; No Third-Party Beneficiaries. This Agreement (together with the Confidentiality Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, Transaction Support Agreement and the Confidentiality Agreement (aany other documents and instruments executed pursuant hereto) constitute constitutes the entire agreement, agreement and supersede supersedes all prior agreements and understandings, both written and oral, among the parties Parties with respect to the subject matter hereof. Except for the provisions of this Agreement and (a) Article III (including, for the Confidentiality Agreement; (b) are not intended to confer upon any person other than the parties any rightsavoidance of doubt, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and former holders of Company Incentive Awards Common Stock to pursue claims receive the Merger Consideration) but only from and after the Effective Time and (b) Section 6.10 (which from and after the Effective Time is intended for damages the benefit of, and shall be enforceable by, the Persons referred to therein and by their respective heirs and Representatives) but only from and after the Effective Time, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other reliefthan the Parties any right, including equitable reliefbenefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, for in the event of Parent’s or Merger Sub’s willful Willful and material breach Material Breach of this AgreementAgreement or fraud, then the Company’s stockholders, acting solely through the Company, shall be beneficiaries of this Agreement and shall be entitled to pursue any and all legally available remedies, including equitable relief, and to seek recovery of all losses, liabilities, damages, costs and expenses of every kind and nature, including reasonable attorneys’ fees; provided, however, that the rights granted pursuant to this clause (ii) sentence shall only be enforceable only by the Company Company, on behalf of such stockholders and holders of the Company Incentive Awards stockholders, in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder)discretion, it being understood and agreed that any and all interests in such claims rights shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements settlements, or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) rights may, in the Company’s sole and absolute discretion, be (xa) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock and/or holders of Company Incentive Awards record as of any date determined by the Company or (yb) retained by the Company for the use and benefit of the Company on behalf of its stockholders in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. (a) This AgreementAgreement together with Annex A hereto, including the Company Disclosure ScheduleLetter, the Parent Disclosure Schedule, and the Confidentiality Agreement (a) and the Limited Guarantee constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter hereof and thereof. The parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and conditions of this Agreement Agreement, and the Confidentiality parties hereto expressly disclaim that they are owed any duties or entitled to any remedies not expressly set forth in this Agreement; . Furthermore, the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and all parties to this Agreement specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary purchaser and an ordinary seller in an arm’s-length transaction. (b) are not Nothing in this Agreement, express or implied, is intended to or shall confer upon any person Person other than the parties hereto and their respective successors and permitted assigns any rights, benefits right or remedies, remedy of any nature whatsoever under or by reason of this Agreement other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders holders of Company Common Stock or Company Restricted Stock to receive the Offer Price or the Merger Consideration pursuant to the provisions of Articles I and III, as applicable; (ii) the rights of Indemnitees as provided in Section 6.8, (iii) the rights of Non-Party Affiliates as provided in Section 9.12 and (iv) as to the financing sources under the Debt Financing, the provisions of Section 8.2, Section 8.4, Section 8.6, this Section 9.6 and Section 9.7 (it being understood that such provisions may not be amended in a manner adverse to such financing sources in any material respect without their prior written consent). Notwithstanding anything to the contrary in this Agreement, it is explicitly agreed that, as set forth in Section 6 of the holders Equity Commitment Letter, the Company shall be a third party beneficiary of the Equity Commitment Letter, solely to the extent that the Company Incentive Awards is awarded, in accordance with Section 9.8, specific performance of Parent’s obligation to receive cause the benefits of Article II hereofEquity Financing to be funded.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement (including the exhibits to this Agreement), including the Company Disclosure ScheduleLetter, the Parent Disclosure Schedule, Letter and the Confidentiality Agreement (a) Agreement, which shall survive the execution and delivery of this Agreement, constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter hereof and thereof. The Company Disclosure Letter and the Parent Disclosure Letter are “facts ascertainable” as that term is used in Section 251(b) of the DGCL, and do not form part of this Agreement and but instead operate upon the Confidentiality Agreement; terms of this Agreement as provided herein. (b) are not Nothing in this agreement, express or implied, is intended to or shall confer upon any person other than the parties Person any rightsright, benefits benefit or remedies, remedy of any nature whatsoever under or by reason of this agreement other than (ia) as specifically provided in Section 6.12 (which shall be for the benefit of the Company Indemnified Parties from and after the Effective Time) and (b) the rights provisions of Article III with respect to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards Parent Shares (which, from and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, shall be for the rights benefit of holders of the Company’s stockholders to receive the Merger Consideration Company Common Stock and Parent Shares as of the holders Effective Time). (c) The parties acknowledge and agree that in the event that any of Company Incentive Awards the provisions of this Agreement are breached or are not performed in accordance with their terms, irreparable damage may occur; that the parties and the third-party beneficiaries of this Agreement may not have an adequate remedy at law; that the parties (on behalf of themselves and the third-party beneficiaries of this Agreement) shall be entitled to receive injunctive or other equitable relief to prevent breaches of this Agreement and to enforce the benefits terms of Article II hereofthis Agreement; and that the parties to this Agreement shall not object to the granting of injunctive or other equitable relief on the basis that there exists an adequate remedy at law. (d) If any provision or provisions of this agreement shall be held to be invalid, illegal, or unenforceable for any reason (a) the validity, legality and enforceability of the remaining provisions of this agreement shall not be affected or impaired thereby; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable Law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this agreement shall be construed to give the maximum effect to the intent of the parties hereto.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, Agreement (including the Company Disclosure Schedule, the Parent Disclosure Schedule, Letter) and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; (b) are not intended to confer upon any person other than the parties any rights, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that for the rights granted pursuant to this clause (ii) shall only be enforceable by the Company avoidance of doubt any limitations on behalf of such stockholders and holders of Company Incentive Awards use in the Company’s sole Confidentiality Agreement shall not be interpreted to limit the ability of the parties to enforce their rights and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company obligations under this Agreement to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company extent required. This Agreement is for the use and sole benefit of the Company in parties hereto and their respective successors and permitted assigns and nothing herein express or implied shall give or be construed to give any manner the Company deems fit; providedperson, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; parties hereto and (iii) after such assigns, any legal or equitable rights hereunder, except for the rights of each Indemnified Party set forth in Section 5.05. Notwithstanding the immediately preceding sentence, following the Effective Time, the rights provisions of Article II relating to the payment of the Merger Consideration, any dividends or other distributions payable pursuant to Section 2.02(c) or Section 2.02(h) and cash in lieu of any fractional shares payable pursuant to Section 2.02(g) shall be enforceable by holders of Company Common Stock, Company Stock Options and Company Restricted Stock Units at, or immediately prior to, the Effective Time as provided therein. (b) Except for the representations and warranties contained in Section 3.01, each of Parent and Sub acknowledges that neither the Company nor any person on behalf of the Company makes any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or with respect to any other information provided to Parent or Sub in connection with the Transactions. Neither the Company nor any other person will have or be subject to any liability or indemnification obligation to Parent, Sub or any other person resulting from the distribution to Parent or Sub, or Parent’s or Sub’s use of, any such information, including any information, documents, projections, forecasts or other material made available to Parent or Sub in certain “data rooms” or management presentations in expectation of the Transactions, unless and then only to the extent that any such information is expressly included in a representation or warranty contained in Section 3.01. (c) Except for the representations and warranties contained in Section 3.02, the Company acknowledges that none of Parent, Sub or any other person on behalf of Parent or Sub makes any other express or implied representation or warranty with respect to Parent or Sub or with respect to any other information provided to the Company in connection with the Transactions. None of Parent, Sub or any other person will have or be subject to any liability or indemnification obligation to the Company or any other person resulting from the distribution to the Company, or the Company’s stockholders use of, any such information, including any information, documents, projections, forecasts or other material made available to receive the Merger Consideration and Company in certain “data rooms” or management presentations in expectation of the holders of Company Incentive Awards Transactions, unless and then only to receive the benefits of Article II hereofextent that any such information is expressly included in a representation or warranty contained in Section 3.02.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including taken together with the Company Continental Disclosure Schedule, Letter and the Parent United Disclosure ScheduleLetter, and the Confidentiality Agreement Agreement, (a) constitute the entire agreement, and supersede supersedes all prior agreements (other than the Confidentiality Agreement) and understandings, both written and oral, among the parties with respect to the subject matter of Merger and the other transactions contemplated by this Agreement and the Confidentiality Agreement; (b) are is not intended to confer upon any person Person other than the parties any rights, benefits rights or remedies, remedies other than (i) the rights to indemnification and insurance pursuant to as specifically provided in Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries)6.6, (ii) the rights right of the Company’s stockholders and holders Continental, on behalf of Company Incentive Awards its stockholders, to pursue claims for damages and other relief, including equitable relief, for Parentin the event of United’s or Merger Sub’s willful and knowing material breach of any of its representations and warranties in this AgreementAgreement or deliberate material breach of any covenant in this Agreement (as the terms “knowing” and “deliberate” are defined in Section 8.2), which right is hereby acknowledged and agreed by United and Merger Sub and (iii) the right of United, on behalf of its stockholders, to pursue damages and other relief, including equitable relief, in the event of Continental’s knowing material breach of any of its representations and warranties in this Agreement or deliberate material breach of any covenant in this Agreement (as the terms “knowing” and “deliberate” are defined in Section 8.2), which right is hereby acknowledged and agreed by Continental; provided, however, that the rights granted pursuant to this clause clauses (ii) and (iii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards Continental Common Stock only by Continental in the Company’s its sole and absolute discretion (or on behalf of holders of United Common Stock only by United in its sole and not directly by any such stockholder or holder)absolute discretion, it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Continental Common Stock and Company Incentive Awards (and any shares of Company or United Common Stock issued upon exercise or conversion of such Company Incentive Awards)Stock, as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company Continental or United, as applicable, with respect to such claims (net of expenses incurred by the Company Continental or United, as applicable, in connection therewith) may, in the CompanyContinental’s or United’s, as applicable, sole and absolute discretion, be (x) as applicable, distributed, in whole or in part, by the Company Continental to the holders of Company shares of Continental Common Stock and/or holders of Company Incentive Awards record as of any date determined by Continental or by United to the Company holders of shares of United Common Stock of record as of any date determined by United or (y) as applicable, retained by the Company Continental for the use and benefit of the Company Continental on behalf of its stockholders in any manner Continental deems fit or retained by United for the Company use and benefit of United on behalf of its stockholders in any manner United deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, including the Exhibits hereto, the Company Disclosure Schedule, the Parent Disclosure Schedule, Schedule and the Confidentiality Agreement other Transaction Agreements (ai) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter hereof and thereof and (ii) except for, after the Effective Time, if the Merger is consummated, the rights of this Agreement and the Confidentiality Agreement; (b) Company Holders to receive the applicable portion of the Merger Aggregate Consideration, are not intended to and shall not confer upon any person Person other than the parties Parties any rights, benefits rights or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the CompanyCompany Indemnified Parties pursuant to Section 4.9; provided that the Debt Financing Sources are express third party beneficiaries of Sections 9.2, 9.3, 9.5(d) and this Section 9.9. The Exhibits to this Agreement constitute a part of this Agreement and are incorporated into this Agreement for all purposes as if fully set forth herein. (b) This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement or the Transactions may only be made against the entities that are expressly identified as signatories hereto and none of the Debt Financing Sources, Parent’s stockholders Affiliates, and holders any Specified Person of Parent shall have any liability for any obligations or liabilities of the Parties to this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any oral representations made or alleged to be made in connection herewith. The Company Incentive Awards agrees not to, and to pursue cause its Affiliates not to, seek to enforce this Agreement against, make any claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; providedAgreement against, howeveror seek to recover monetary damages from, that any Specified Person of Parent. Without limiting the rights granted pursuant to this clause (ii) shall only be enforceable by generality of any of the foregoing, the Company on behalf of such stockholders and holders of Company Incentive Awards hereby agrees that (a) no Debt Financing Source shall have any liability (whether in the Company’s sole and absolute discretion (and not directly by any such stockholder contract or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) maytort, in the Company’s sole and absolute discretion, be (x) distributed, in whole law or in partequity, or granted by the Company statute) to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the any Company Holder for the use and benefit any claims, causes of the Company action, obligations or losses arising under, out of, in connection with or related in any manner the Company deems fit; providedto this Agreement or based on, further, however, that under no circumstances shall any such rights in respect of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for reason of this Agreement or on their behalf other than its negotiation, execution, performance or breach (provided that nothing in this sentence shall limit the Company; and (iii) after the Effective Time, the rights liability or obligations of the Company’s stockholders to receive parties under the Merger Consideration and of Debt Commitment Letter or the holders of Company Incentive Awards to receive the benefits of Article II hereofdocuments governing any credit facilities or other financing provided by any Debt Financing Source).

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, Agreement (including the Company Disclosure ScheduleLetter), the Parent Disclosure Schedule, and the Confidentiality Agreement (a) and the Common Interest Agreement constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement. Other than as set forth in Section 8.13, this Agreement is for the sole benefit of the parties hereto and the Confidentiality Agreement; (b) are not intended their respective successors and permitted assigns and nothing herein express or implied shall give or be construed to confer upon give any person person, other than the parties hereto and such assigns, any rights, benefits legal or remediesequitable rights hereunder, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (in respect of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of each indemnified party set forth in Section 5.05 from and after the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other reliefEffective Time. Notwithstanding the immediately preceding sentence, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after following the Effective Time, the rights provisions of Article II relating to the payment of the Merger Consideration, any dividends or other distributions payable pursuant to Section 2.02(j), cash in lieu of any fractional shares payable pursuant to Section 2.02(i), Option Amounts, RSU Amounts, Restricted Stock Consideration and Deferred Stock Unit Consideration, Substituted Restricted Stock and Restricted Cash Awards shall be enforceable by holders of Company Common Stock, Company Stock Options, Company RSUs, Company Restricted Stock and Company Deferred Stock Units, at or immediately prior to, the Effective Time as provided therein. (b) Except for the representations and warranties contained in Section 3.01, each of Parent and Sub acknowledges that neither the Company nor any person on behalf of the Company makes any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or with respect to any other information provided to Parent or Sub in connection with the Transactions. Neither the Company nor any other person will have or be subject to any liability or indemnification obligation to Parent, Sub or any other person resulting from the distribution to Parent or Sub, or Parent’s or Sub’s use of, any such information, including any information, documents, projections, forecasts or other material made available to Parent or Sub in certain “data rooms” or management presentations in expectation of the Transactions, unless and then only to the extent that any such information is expressly included in a representation or warranty contained in Section 3.01. (c) Except for the representations and warranties contained in Section 3.02, the Company acknowledges that none of Parent, Sub or any other person on behalf of Parent or Sub makes any other express or implied representation or warranty with respect to Parent or Sub or with respect to any other information provided to the Company in connection with the Transactions. None of Parent, Sub or any other person will have or be subject to any liability or indemnification obligation to the Company or any other person resulting from the distribution to the Company, or the Company’s stockholders use of, any such information, including any information, documents, projections, forecasts or other material made available to receive the Merger Consideration and Company in certain “data rooms” or management presentations in expectation of the holders of Company Incentive Awards Transactions, unless and then only to receive the benefits of Article II hereofextent that any such information is expressly included in a representation or warranty contained in Section 3.02.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, Agreement (including the Exhibits and Schedules hereto), the Company Disclosure ScheduleSupport Agreements, the Parent Disclosure ScheduleSupport Agreements, the Confidentiality Agreement, and any document delivered by the Confidentiality Agreement (a) Parties in connection herewith constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties Parties with respect to the subject matter of this Agreement hereof and the Confidentiality Agreement; thereof. (b) are not This Agreement shall be binding upon and inure solely to the benefit of each Party, and nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties Person any rightsright, benefits benefit or remediesremedy of any nature whatsoever under or by reason of this Agreement, other than (i) Section 6.7 (which is intended to be for the rights to indemnification benefit of the Persons covered thereby and insurance pursuant to Section 6.04 hereof (may be enforced by such Persons who are directors or officers of which the persons entitled to indemnification are the intended beneficiariesCompany), ; (ii) the rights right of the Company’s stockholders and holders Parent, on behalf of Company Incentive Awards its stockholders, to pursue claims for damages and other relief, including equitable relief, for in the event of the Company’s Willful and Material Breach of any of its covenants and agreements in this Agreement, which right is hereby acknowledged and agreed by the Company; and (iii) the right of the Company, on behalf of its stockholders, to pursue damages and other relief, including equitable relief, in the event of Parent’s or Merger Sub’s willful Willful and material breach Material Breach of any of its covenants and agreements in this Agreement, which right is hereby acknowledged and agreed by Parent; provided, however, that the rights granted pursuant to this clause clauses (ii) and (iii) shall only be enforceable by the Company on behalf of such Parent’s stockholders and holders of Company Incentive Awards only by Parent in the Company’s its sole and absolute discretion (and not directly on behalf of the Company’s stockholders only by any such stockholder or holder)the Company in its sole and absolute discretion, as applicable, it being understood and agreed that any and all interests in such claims shall attach to such shares of Parent Common Stock or Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards)Stock, as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by Parent or the Company Company, as applicable, with respect to such claims (net of expenses incurred by Parent or the Company Company, as applicable, in connection therewith) may, in Parent’s or the Company’s ’s, as applicable, sole and absolute discretion, be (xA) as applicable, distributed, in whole or in part, by Parent to Parent’s stockholders as of any record date determined by Parent or by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards Company’s stockholders as of any record date determined by the Company Company; or (yB) as applicable, retained by Parent for the use and benefit of Parent on behalf of Parent’s stockholders in any manner Parent deems fit or retained by the Company for the use and benefit of the Company on behalf of the Company’s stockholders in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Scheduleschedules hereto, and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements agreements, understandings, representations and understandingswarranties, both written and oral, among the parties with respect to the subject matter hereof and thereof. Each party hereto agrees that, except for the representations and warranties contained in this Agreement, neither Purchaser and Merger Sub, nor Company makes any other representations or warranties, and each hereby disclaims any other representations or warranties, express or implied, or as to the accuracy or completeness of any other information made by, or made available by, itself or any of its Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement and or the Confidentiality Agreement; transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing. (b) are not This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties Person any rightsright, benefits benefit or remedies, other than remedy of any nature whatsoever under or by reason of this Agreement except for: (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after following the Effective Time, the rights right of the (A) Company’s stockholders to receive the Merger Consideration and in respect of shares of Company Common Stock pursuant to Section 1.8, (B) the holders of Company Incentive Stock Options to receive the aggregate consideration payable in respect of Company Stock Options pursuant to Section 1.11(a) and (C) the holders of Other Stock Awards to receive the aggregate consideration payable in respect of Other Stock Awards pursuant to Section 1.11(b), (ii) the right of Company on behalf of its stockholders to pursue damages (including claims for damages based on loss of the economic benefits of Article II hereofthe Merger to Company’s stockholders), which right is hereby expressly acknowledged and agreed by Purchaser and Merger Sub, (iii) the right of the Indemnified Persons to enforce the provisions of Section 5.6 only and (iv) the right of the Financing Parties to enforce the provisions of Section 8.6 and 8.15. The third-party beneficiary rights referenced in clause (ii) of the preceding sentence may be exercised only by Company (on behalf of its stockholders as their agent) through actions expressly approved by the Board of Directors of Company, and no stockholder of Company whether purporting to act in its capacity as a stockholder or purporting to assert any right (derivatively or otherwise) on behalf of Company, shall have any right or ability to exercise or cause the exercise of any such right. (c) The representations and warranties in this Agreement are the product of negotiations among the parties and are for the sole benefit of the parties. Any inaccuracies in such representations and warranties are subject to waiver by the parties in accordance with Section 8.9 without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties of risks associated with particular matters regardless of the Knowledge of any of the parties. Consequently, Persons other than the parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date hereof or as of any other date.

Entire Agreement; No Third-Party Beneficiaries. This AgreementAgreement and any exhibits, annexes or schedules hereto, including the Company Disclosure ScheduleLetter, the Parent Disclosure Schedule, and together with the Confidentiality Agreement (a) Agreement, constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties and their Affiliates, or any of them, with respect to the subject matter hereof and thereof, and except for (i) if the Effective Time occurs, the right of the holders of Company Common Stock to receive the Merger Consideration, the right of the holders of Company Stock Options, Company Restricted Stock Awards and Company Deferred Stock Awards to receive the Company Equity Award Consideration and the right of holders of Company Performance Cash Awards to receive payments pursuant to Section 2.04(d), (ii) if the Effective Time occurs, the provisions set forth in Section 6.04 of this Agreement Agreement, and (iii) with respect to the Confidentiality Financing Sources, the provisions set forth in Section 8.04, Section 8.05, Section 9.07 and Section 9.08 of this Agreement; (b) , are not intended to and shall not confer upon any person other than the parties hereto, any rightsrights or remedies hereunder. Notwithstanding anything to the contrary, benefits the Company (on behalf of itself and its Affiliates and its and their respective stockholders, directors, officers, representatives or remedies, other than agents) (i) hereby waives any and all rights or claims it or any of them may have against any Financing Source (whether based in contract, tort, fraud, strict liability, other laws or otherwise) arising under or in connection with, this Agreement, the rights to indemnification Financing, the Commitment Letter or the transactions contemplated hereby or thereby and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights hereby agrees that no Financing Source shall have any liability or obligations of any kind (whether based in contract. tort, fraud, strict liability, other laws or otherwise) to the Company’s stockholders and holders , any of Company Incentive Awards to pursue claims for damages and other reliefits Affiliates or any of its or their respective stockholders, including equitable reliefdirectors, for Parent’s officers, representatives or Merger Sub’s willful and material breach of agents arising under or in connection with, this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of Financing, the Company’s stockholders to receive Commitment Letter or the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereoftransactions contemplated hereby or thereby.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including together with the Exhibits and Schedules attached hereto, the Company Disclosure ScheduleLetter, the Parent Disclosure ScheduleLetter, and the Confidentiality Agreement Agreement, (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties and their Affiliates, or any of them, with respect to the subject matter of this Agreement hereof and the Confidentiality Agreement; thereof and (b) except for: (i) if the Effective Time occurs, (A) the right of the holders of Company Shares to receive the Merger Consideration payable in accordance with Article III and (B) the right of the holders of Series A Preferred Shares to receive preferred shares of the Surviving Company in accordance with Article III and (ii) the provisions set forth in Section 6.07 of this Agreement, are not intended to and shall not confer upon any person Person other than the parties any rightsrights or remedies hereunder. Notwithstanding the foregoing, benefits or remediesthe Company shall have the right to recover, other than (i) through an Action brought by the rights to indemnification Company, damages from Parent in the event of a breach of this Agreement by Parent, in which event the damages recoverable by the Company for itself and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights on behalf of the Company’s stockholders shareholders shall be determined by reference to the total amount that would have been recoverable by such holders if all such holders brought an action against Parent and holders were recognized as third party beneficiaries hereunder. The representations, warranties, covenants and agreements in this Agreement are the product of Company Incentive Awards to pursue claims negotiations among the parties and are for damages the sole benefit of the parties and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretioncertain instances, be (x) distributedqualified, limited or changed by confidential disclosure letters. Any inaccuracies in whole such representations or in part, warranties or failure to perform or breach of such covenants or agreements are subject to waiver by the Company parties in accordance with Section 9.03 without notice or liability to any other Person. In some instances, the holders representations, warranties, covenants and agreements in this Agreement may represent an allocation among the parties of Company Common Stock and/or holders risk associated with particular matters regardless of Company Incentive Awards the knowledge of any of the parties. Consequently, Persons other than the parties may not rely upon the representations, warranties, covenants and agreements in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofdate.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, and the Confidentiality Agreement (a) constitute constitutes the entire agreement, and supersede supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; (b) are except for the provisions of Sections 6.3, 8.2 and 9.8, is not intended to confer upon any person other than the parties any rights, benefits rights or remedies. Notwithstanding the foregoing, other than (i) the current and former directors and officers of the Company, and their respective heirs and Representatives, are intended to be conferred with the rights to indemnification and insurance pursuant to remedies set forth in Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), 6.3 and (ii) the rights Lenders and their affiliates shall be express third party beneficiaries of Sections 8.2 and 9.8. Notwithstanding the foregoing, this Section 9.5 will not limit (a) the right of the Company’s stockholders and holders , on behalf of Company Incentive Awards its shareholders, to pursue claims for damages and other relief, including equitable relief, for in the event of Parent’s or Merger Sub’s willful and material breach of any provisions of this Agreement, which right is hereby acknowledged and agreed by Parent ( on behalf of itself and Merger Sub); provided, however, that the rights granted pursuant to of this clause (ii) shall only sentence will be enforceable on behalf of the Company shareholders only by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s its sole and absolute discretion (and not directly by any such stockholder or holder)discretion, it being understood and agreed that any and all interests in such claims shall will attach to such shares of Company the Company’s Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards)Stock, as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (xi) as applicable, distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards its shareholders as of any date determined by the Company or (yii) retained by the Company for the use and benefit of the Company on behalf of its shareholders in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, and Agreement (together with the Confidentiality Agreement (aand any other documents and instruments executed pursuant hereto) constitute constitutes the entire agreement, agreement and supersede supersedes all prior agreements agreements, understandings, representations and understandingswarranties, both written and oral, among the parties Parties with respect to the subject matter hereof. The Company Disclosure Letter and the Parent Disclosure Letter do not form part of this Agreement but instead operate upon the terms of this Agreement as provided in this Agreement. Except for (a) the provisions of Section 6.10 (which from and after the Confidentiality Agreement; Effective Time are intended for the benefit of, and shall be enforceable by, the Persons referred to in Section 6.10 and by their respective heirs and Representatives), but only from and after the Effective Time, and (b) are not intended to confer upon any person other than the parties any rights, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s stockholders (each of which are third party beneficiaries of this Agreement to the extent required for this provision to be enforceable), and the rights of Parent, on behalf of Parent’s stockholders (each of which are third party beneficiaries of this Agreement to the extent required for this provision to be enforceable), to pursue specific performance as set forth in Section 9.9 or, if specific performance is not sought or granted as a remedy, damages (including damages based on the loss of the benefits of the transactions contemplated by this Agreement to such stockholders) in accordance with Section 8.2(b) in the event of fraud or Willful and Material Breach (it being agreed that in no event shall any Company or Parent shareholder be entitled to enforce any of their rights, or any of the party’s obligations, under this Agreement directly in the event of any such breach, but rather that (i) the Company shall have the sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests exclusive right to do so in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s its sole and absolute discretion, be as agent for the Company’s stockholders, and (xii) distributedParent shall have the sole and exclusive right to do so in its sole and absolute discretion, in whole or in partas agent for Parent’s stockholders, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by and the Company or (y) retained by the Company for the use and benefit of the Company Parent, as applicable, may retain any amounts obtained in connection therewith), nothing in this Agreement, express or implied, is intended to or shall confer upon any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf Person other than the Company; and (iii) after the Effective TimeParties any right, the rights benefit or remedy of the Company’s stockholders to receive the Merger Consideration and any nature whatsoever under or by reason of the holders of Company Incentive Awards to receive the benefits of Article II hereofthis Agreement.

Entire Agreement; No Third-Party Beneficiaries. This AgreementAgreement (including any Exhibit, including the Company Disclosure Schedule, Letter and the Parent Disclosure Schedule, Letter) and the Confidentiality Nondisclosure Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements and understandings, both written and oral, among between the parties Parties with respect to the subject matter of this Agreement. This Agreement and the Confidentiality Agreement; (b) are is not intended to and shall not confer any rights or remedies upon any person Person other than the parties any rightsParties and their respective successors and permitted assigns, benefits except for the provisions of Article 3 (which, from and after the Partnership Merger Effective Time and REIT Merger Effective Time, as applicable, shall be for the benefit of holders of the Company Partnership Units immediately prior to the Partnership Merger Effective Time or remediesthe holders of the Company Common Shares immediately prior to the REIT Merger Effective Time, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiariesas applicable), and Section 7.5 (ii) which, from and after the rights Partnership Merger Effective Time and the REIT Merger Effective Time shall be for the benefit of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this AgreementIndemnified Parties); provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (Financing Sources and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company their respective Representatives shall be intended third party beneficiaries with respect to Sections 10.9(b), 10.12(b) and 10.13 (and no amendment or modification to such claims (net provisions in respect of expenses incurred any Financing Sources may be made without the prior consent of such Financing Sources). The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties other than as described in this Section 10.5. Any inaccuracies in such representations and warranties are subject to waiver by the Company Parties in connection therewith) mayaccordance with Section 10.8 without notice or liability to any other Person. The representations and warranties in this Agreement may represent an allocation among the Parties of risks associated with particular matters regardless of the Knowledge of any of the Parties. Accordingly, Persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the Company’s sole and absolute discretion, be (x) distributed, in whole date of this Agreement or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofdate.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, Agreement (including the Exhibits and Company Disclosure Schedule, the Parent Disclosure Schedule, ) and the Confidentiality Agreement (except with respect to any provision of such agreement requiring Parent or Merger Sub or their Affiliates to file any Claim or Action under seal, which provisions are hereby terminated) and any agreements entered into contemporaneously herewith (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; , provided that the Confidentiality Agreement shall survive the execution and delivery of this Agreement and (b) are not intended to and do not confer upon any person other than the parties any rights, benefits legal or equitable rights or remedies, other than except for: (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (right of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by who validly tender shares pursuant to the Company or (y) retained by Offer to receive the Company for consideration in respect thereof from and after the use Share Acceptance Date and benefit the right of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf (including ESPP participants) other than those who tender their shares of Company Common Stock pursuant to the Company; Offer, the Company Stock Options and (iii) the Company Restricted Stock Units to receive, from and after the Effective Time, the rights aggregate consideration which they are entitled to receive pursuant to Article III; (ii) in circumstances in which the holders of Company Common Stock do not have legal standing to seek remedies at law or in equity against Parent and Merger Sub, the right of the Company’s stockholders to receive the Merger Consideration , on its own behalf and on behalf of the holders of Company Incentive Awards Common Stock, to receive seek all remedies available at law or equity against Parent and Merger Sub in the benefits event of Article II hereofany failure by Parent or Merger Sub to consummate the Offer and the Merger in accordance with the terms and conditions of this Agreement (it being understood and agreed among the parties hereto that the obligations of Parent and Merger Sub under this Agreement are material to the Company’s execution of this Agreement); (iii) the provisions set forth in Section 6.05 of this Agreement (from and after the Share Acceptance Date); and (iv) the right of the Company (but not any third party) to seek remedies at law or in equity to enforce the provisions set forth in the last sentence of Section 6.14(c) of this Agreement.

Entire Agreement; No Third-Party Beneficiaries. This AgreementThe Transaction Documents, including taken together with the Company Seller Disclosure ScheduleLetter, the Parent Disclosure Schedule, and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter of this Agreement Transactions and the Confidentiality Agreement; (b) are not intended to confer upon any person Person other than the parties hereto any rights, benefits rights or remedies. Notwithstanding anything to the contrary contained in this Agreement, other than no provision under this Agreement, whether express or implied, shall (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), constitute or create an employment agreement with any Transferred Employee or (ii) limit the rights right of the Company’s stockholders and holders Purchaser, Seller or any of Company Incentive Awards their respective Affiliates to pursue claims for damages and other reliefamend, including equitable reliefterminate or otherwise modify any Business Benefit Plan, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements Purchaser plan or other amounts recovered benefit or received by employment plan or arrangement following the Company Closing Date. Seller and Purchaser acknowledge and agree that all provisions contained in this Agreement with respect to such claims (net Transferred Employees are included for the sole benefit of expenses incurred by the Company Seller, Purchaser and their respective affiliates, and that nothing in connection therewith) maythis Agreement, in the Company’s sole and absolute discretionwhether express or implied, be shall create any third-party beneficiary or other rights (x) distributedin any other person, including, without limitation, any current or former Transferred Employees, any participant in whole any existing benefit plan or in partarrangement, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of or any date determined by the Company dependent or beneficiary thereof, or (y) retained by to continued employment with Seller, Purchaser or any of their respective affiliates. In the Company for event of any conflict between the use provisions of this Agreement (including the Seller Disclosure Letter and benefit Exhibits hereto), on the one hand, and the provisions of the Company in any manner Confidentiality Agreement or the Company deems fit; providedother Transaction Documents (including the schedules and exhibits thereto), furtheron the other hand, howeverthe provisions of this Agreement shall control. Notwithstanding anything herein to the contrary, that under no circumstances following the Closing the provisions of the last sentence of Section 6.06(h) shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofUSW.

Entire Agreement; No Third-Party Beneficiaries. This Agreement (together with the Confidentiality Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, Designated Stockholder Voting Agreements and the Confidentiality Agreement (aany other documents and instruments executed pursuant hereto) constitute constitutes the entire agreement, agreement and supersede supersedes all prior agreements and understandings, both written and oral, among the parties Parties with respect to the subject matter hereof. Except for the provisions of this Agreement and (a) Article III (including, for the Confidentiality Agreement; (b) are not intended to confer upon any person other than the parties any rightsavoidance of doubt, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and former holders of Company Incentive Awards Common Stock or, where applicable, Converted PSUs, to pursue claims receive the Merger Consideration) but only from and after the Effective Time and (b) Section 6.10 (which from and after the Effective Time is intended for damages the benefit of, and shall be enforceable by, the Persons referred to therein and by their respective heirs and Representatives) but only from and after the Effective Time, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other reliefthan the Parties any right, including equitable reliefbenefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, for in the event of Parent’s or Merger Sub’s willful Willful and material breach Material Breach of this AgreementAgreement or intentional fraud, then the Company’s stockholders, acting solely through the Company, shall be beneficiaries of this Agreement and shall be entitled to pursue any and all legally available remedies, including equitable relief, and to seek recovery of all losses, liabilities, damages, costs and expenses of every kind and nature, including reasonable attorneys’ fees; provided, however, that the rights granted pursuant to this clause (ii) sentence shall only be enforceable only by the Company Company, on behalf of such stockholders and holders of the Company Incentive Awards stockholders, in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder)discretion, it being understood and agreed that any and all interests in such claims rights shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements settlements, or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) rights may, in the Company’s sole and absolute discretion, be (xa) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock and/or holders of Company Incentive Awards record as of any date determined by the Company or (yb) retained by the Company for the use and benefit of the Company on behalf of its stockholders in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the Exhibits hereto and the documents and the instruments referred to herein), the Voting and Support Agreement, including the Company Disclosure ScheduleLetter, the Parent Disclosure ScheduleLetter, the Voting and Support Agreement, the Equity Commitment Letter and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements and understandings, both written and oral, between Parent and the Company and among the parties Parties with respect to the subject matter hereof and thereof (provided that any provisions of the Confidentiality Agreement conflicting with this Agreement shall be superseded by this Agreement) and the Confidentiality Agreement; (b) are not intended to confer any rights, benefits, remedies, obligations or liabilities upon any person Person other than the parties any rightsParties and their respective successors and permitted assigns, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) except for the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other reliefpursue, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and the holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards Awards, damages (and any shares of Company Common Stock issued upon exercise including damages incurred or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received suffered by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or and Company Awards in the event such holders would not receive the benefit of the bargain negotiated by the Company on their behalf as set forth in this Agreement) in the event of Parent’s, or Merger Sub’s breach of this Agreement, the rights of the holders of Company Incentive Awards as of any date determined by Common Stock to, following the Company or (y) retained by Effective Time, receive the Company for Merger Consideration in accordance with Article II, the use and benefit rights of the holders of Company Awards, following the Effective Time, to receive the consideration payable in any manner accordance with Article II and the rights of holders of Contingent Value Rights to receive all amounts distributable in respect thereof in accordance with Article II; provided that notwithstanding the foregoing, following the Effective Time, the provisions of Section 6.2 shall be enforceable by each Company deems fitIndemnified Party hereunder and his or her heirs or representatives; provided, further, howeverthat the Company shall be an express third-party beneficiary with respect to the Equity Commitment Letter; provided, further, that under no circumstances shall any such rights the Debt Financing Parties and each of holders of Company Common Stock their respective Affiliates and their respective directors, officers, employees, agents, Affiliates, members, managers, general or Company Incentive Awards be enforceable by such stockholderslimited partners, holders assignees or by any other person acting for or on their behalf other than the Company; and representatives (iii) after the Effective Timeeach, a “Debt Financing Source Party”, collectively, the rights of the Company’s stockholders “Debt Financing Source Parties”) shall be express third-party beneficiaries with respect to receive the Merger Consideration Section 9.3(f)(ii), Section 10.2, this Section 10.8, Section 10.10 (third sentence), Section 10.12, Section 10.13(d), Section 10.14 and of the holders of Company Incentive Awards to receive the benefits of Article II hereofSection 10.15.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, including the Company Disclosure ScheduleLetter, the Parent Disclosure ScheduleLetter, the Exhibits attached hereto and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements agreements, understandings, representations and understandingswarranties, both written and oral, among the parties with respect to the subject matter hereof and thereof. Each party hereto agrees that, except for the representations and warranties contained in this Agreement, neither Parent and Merger Sub nor the Company makes any other representations or warranties, and each hereby disclaims any other representations or warranties, express or implied, as to the accuracy or completeness of any other information made by, or made available by, itself or any of its Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement and or the Confidentiality Agreement; transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing. (b) are not intended The provisions of this Agreement shall be binding upon and shall inure solely to confer upon any person other than the benefit of the parties any rightshereto, benefits or remedies, other than except for: (i) only following the rights Effective Time, the right of the shareholders of the Company and holders of Company Equity Awards, as applicable, to indemnification and insurance receive (x) the Merger Consideration in respect of Shares pursuant to Section 6.04 hereof 2.2 and (y) the consideration payable in respect of which the persons entitled Company Equity Awards, warrants and other rights to indemnification are the intended beneficiaries)purchase pursuant to Section 2.6, (ii) the rights right of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder its shareholders to seek equitable relief or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received pursue damages suffered by the Company with respect and its shareholders in the event of the wrongful termination of this Agreement or fraud by Parent or Merger Sub (whether or not this Agreement has been terminated pursuant to such claims Section 8.1), which right is hereby expressly acknowledged and agreed by Parent and Merger Sub and (net iii) the right of expenses incurred the Indemnified Parties to enforce the provisions of Section 6.8 only. The third-party beneficiary rights referenced in clause (ii) of the preceding sentence may be exercised only by the Company in connection therewith) may, in through actions expressly approved by the Board of Directors of the Company’s sole , and absolute discretionno shareholder of the Company, be whether purporting to act in its capacity as a shareholder or purporting to assert any right (xderivatively or otherwise) distributedon behalf of the Company, shall have any right or ability to exercise or cause the exercise of any such right. (c) No party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of each other party hereto, except that Parent may transfer or assign its rights and obligations under this Agreement, in whole or from time to time in part, by to any Person after the Company Closing, and Merger Sub may transfer or assign its rights and obligations under this Agreement, in whole or from time to the holders time in part, to any other wholly-owned Subsidiary of Company Common Stock and/or holders Parent, which Subsidiary shall be a Cayman Islands exempted company; provided that such transfer or assignment shall not (i) relieve Parent or Merger Sub of Company Incentive Awards as its obligations hereunder or enlarge, alter or change any obligation of any date determined by the Company other party hereto or due to Parent or Merger Sub or (yii) retained by materially delay the Company for the use and benefit consummation of the Company in Merger or any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofother transactions contemplated hereby.

Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the exhibits and schedules hereto), the Voting Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, and the Confidentiality Agreement (a) and the Amendment Agreement constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among between the parties parties, or any of them, with respect to the subject matter of hereof and thereof. Notwithstanding anything contained in this Agreement to the contrary, except for (a) following the Effective Time, the right of the Company’s stockholders (other than holders of Excluded Shares) to receive Merger Consideration pursuant to Section 2.1(a) and the Confidentiality Agreementholders of Company Stock Options to receive Merger Consideration in respect of the Company Stock Options pursuant to Section 2.2(e) (provided that the Company’s stockholders shall not have the right to enforce their right to receive Merger Consideration against Parent or any of its affiliates while the aggregate Merger Consideration to which the Company’s stockholders are entitled pursuant to Article II remains deposited with the Paying Agent and the Paying Agent has not received any instruction from Parent or any of its affiliates to withhold payment); (b) the right of the Indemnified Parties to enforce the provisions of Section 5.11 hereof (Indemnification and Insurance); and (c) the right of the Company on behalf of its stockholders to pursue damages in the event of Parent’s or Merger Sub’s willful breach of this Agreement (whether or not the Agreement has been terminated pursuant to Article VII), which rights are not hereby acknowledged and agreed by Parent and Merger Sub, nothing contained in this Agreement is intended to to, and nothing herein shall, confer upon any person other than the parties hereto any rightsrights or remedies hereunder. The third-party beneficiary rights referenced in clause (c) of the preceding sentence of this Section 8.13 may be exercised only by the Company (on behalf of its stockholders or as their agent) through actions expressly approved by the Board of Directors, benefits and no stockholder of the Company whether purporting to act in its capacity as a stockholder or remedies, other than purporting to assert any right (iderivatively or otherwise) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights on behalf of the Company’s stockholders , shall have any right or ability to exercise or cause the exercise of any such right and holders of Company Incentive Awards if any Action by any stockholder with respect to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material a breach of this Agreement; providedAgreement is not dismissed based on pleadings, however, that the third party beneficiary rights granted pursuant to this contained in clause (iic) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereoflonger apply.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including together with Annex A hereto, the Company Disclosure Schedule, the Parent Disclosure Schedule, Schedule and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter hereof and thereof. Except for the provisions of Section 5.7, nothing in this Agreement, together with Annex A hereto, the Company Disclosure Schedule and the Confidentiality Agreement, is intended to and shall not confer upon any Person other than the parties hereto any legal or equitable rights or remedies by reason of this Agreement. Notwithstanding the immediately preceding sentence: (i) prior to the Effective Time, the Company shall have the right, on behalf of the stockholders of the Company, to pursue equitable remedies pursuant to Section 8.8 or, if such equitable remedies are not sought or are not granted as a remedy, damages (which Parent and Purchaser acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs, and may include the benefit of the bargain lost by the stockholders of the Company, taking into consideration relevant matters, including the total amount payable to the stockholders of the Company under this Agreement and the Confidentiality Agreement; (b) are not intended time value of money, which, in each case, shall be deemed in such event to confer upon any person other than the parties any rights, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights be damages of the Company and shall be recoverable by the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement); provided, however, that the rights granted pursuant to this clause (iii) shall only will be enforceable by the Company on behalf of such the stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred only by the Company in connection therewith) may, in the Company’s its sole and absolute discretion, (ii) following the Effective Time the provisions of Article II hereof shall be (x) distributed, in whole enforceable by any one or in part, by more of the stockholders of the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders extent necessary to receive the Merger Consideration and to which each such stockholder of the holders of Company Incentive Awards is entitled pursuant to receive the benefits of Article II hereofand (iii) nothing in this Agreement shall modify, alter or otherwise derogate from any right or remedy available to any stockholder of the Company under the Exchange Act in connection with the Transactions.

Entire Agreement; No Third-Party Beneficiaries. This AgreementAgreement (including the Exhibits hereto and the documents and the instruments referred to herein), including the Company Disclosure ScheduleLetter, the Parent Disclosure ScheduleLetter, the Escrow Agreement, the Equity Commitment Letter and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements and understandings, both written and oral, between Parent and the Company and among the parties Parties with respect to the subject matter hereof and thereof (provided that (x) any provisions of the Confidentiality Agreement conflicting with this Agreement shall be superseded by this Agreement and (y) all standstill or similar provisions set forth in the Confidentiality Agreement; Agreement shall terminate and no longer be in effect upon execution and delivery hereof) and (b) are not intended to confer any rights, benefits, remedies, obligations or liabilities upon any person Person other than the parties any rightsParties and their respective successors and permitted assigns, benefits or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) except for the rights of the Company’s stockholders and Company to pursue, on behalf of the holders of Company Incentive Stock and Company Awards, damages (including damages incurred or suffered by the holders of Company Stock and Company Awards to pursue claims for damages and other reliefin the event such holders would not receive the benefit of the bargain negotiated by the Company on their behalf as set forth in this Agreement) in the event of Parent’s, including equitable relief, for ParentShareholder’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or to, following the Effective Time, receive the Merger Consideration in accordance with Article II and the rights of the holders of Company Incentive Awards as Awards, following the Effective Time, to receive the consideration payable in accordance with Article II; provided that notwithstanding the foregoing, following the Effective Time, the provisions of any date determined Section 6.2 shall be enforceable by the each Company Indemnified Party hereunder and his or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fither heirs or representatives; provided, further, howeverthat the Company shall be an express third-party beneficiary with respect to the Equity Commitment Letter; provided, further, that under no circumstances shall any such rights the Debt Financing Parties and each of holders of Company Common Stock their respective Affiliates and their respective directors, officers, employees, agents, Affiliates, members, managers, general or Company Incentive Awards be enforceable by such stockholderslimited partners, holders assignees or by any other person acting for or on their behalf other than the Company; and representatives (iii) after the Effective Timeeach, a “Debt Financing Source Party”, collectively, the rights of the Company’s stockholders “Debt Financing Source Parties”) shall be express third-party beneficiaries with respect to receive the Merger Consideration Section 9.3(f)(ii), Section 10.2, this Section 10.8, Section 10.10 (third sentence), Section 10.12, Section 10.13(d), Section 10.14 and of the holders of Company Incentive Awards to receive the benefits of Article II hereofSection 10.15.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including the Company Disclosure ScheduleLetter and Voting Agreements, together with the Equity Commitment Letter, the Parent Disclosure ScheduleGuarantee, the Plan of Merger and the Confidentiality Agreement (a) constitute Agreement, constitutes the entire agreement, and supersede supersedes all other prior agreements and understandings, both written and oral, among the parties and their Affiliates, or any of them, with respect to the subject matter of this hereof and thereof. This Agreement and the Confidentiality Agreement; (b) are is not intended to and does not confer upon on any person Person other than the parties hereto any rightsrights or remedies hereunder, benefits or remedies, other than except for: (ia) the rights to indemnification provisions of Article II (which, from and insurance pursuant to Section 6.04 hereof after the Effective Time, shall be for the express benefit of, and enforceable by, each holder of Company Shares or Company Equity Awards as of the Effective Time) concerning payment of the Aggregate Consideration (including the premium reflected in the Aggregate Consideration, which was specifically negotiated by the Special Committee on behalf of which the persons entitled to indemnification are the intended beneficiariesCompany’s equity holders), (iib) if the Effective Time occurs, the rights of the Indemnitees set forth in Section 5.06 and (c) the rights of the Company’s stockholders Company Related Parties set forth in Section 7.03(d) and holders of Company Incentive Awards to pursue claims for damages and other reliefSection 7.03(f), including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company indemnified parties specified in any manner Section 5.08(f) and the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholdersthe Parent Related Parties set forth in Section 7.03(d). Notwithstanding the foregoing, holders or by any other person acting for or on their behalf other than the Company; and (iii) after prior to the Effective Time, the rights and remedies conferred on the Company’s equity holders pursuant to Article II concerning payment of the Aggregate Consideration (including the premium reflected in Aggregate Consideration, which was specifically negotiated by the Special Committee on behalf of the Company’s stockholders to receive equity holders) may only be enforced by the Merger Consideration and Company acting as an agent on the behalf of the Company’s equity holders (including the holders of Company Incentive Awards to receive Equity Awards) in its sole and absolute discretion, and the benefits of Article II hereofCompany may retain any amounts obtained in connection therewith.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure ScheduleLetter, the Parent Disclosure ScheduleLetter and the Annexes and Exhibits hereto), and taken together with the Confidentiality Agreement (a) constitute and the other documents delivered in connection with this Agreement, constitutes the entire agreement, and supersede supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter of this Agreement Merger, the Offer, the Parent Stock Issuance and the Confidentiality other transactions contemplated by this Agreement; (b) are . This Agreement is not intended to confer upon any person Person other than the parties hereto any rights, benefits rights or remedies, other than ; provided that (ia) the rights provisions of Section 7.05 are intended to indemnification be for the benefit of, and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries)shall be enforceable by, each indemnified or insured party, his or her heirs and Representatives, (iib) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards the Company’s equity and equity-based awards to receive the benefits applicable consideration set forth in Section 3.04, as the case may be, following the Effective Time, each of Article II hereofwhich shall be for the benefit of, and shall be enforceable by, each such holder following the Effective Time, or (c) before the Effective Time, each stockholder of the Company shall be a third-party beneficiary of this Agreement for the purpose of pursuing claims for damages (including for the lost stockholder premium) under this Agreement in the event of a failure by Parent or Merger Sub to irrevocably accept for purchase all shares of Company Common Stock validly tendered (and not validly withdrawn) as of the Expiration Date by the end of the period specified in Section 1.01(e) as required by this Agreement or otherwise to effect the Merger as required by this Agreement, or in the event of Fraud or Willful Breach of this Agreement by Parent or Merger Sub which has been the proximate cause of a failure of any of the Offer Conditions or the conditions to Closing from being satisfied; provided, that the rights granted pursuant to this clause (c) shall be enforceable by, and only by, the Company, in its sole and absolute discretion, on behalf of the stockholders of the Company, and any amounts received by the Company in connection therewith may be retained by the Company.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Letter and the Parent Disclosure Schedule, Letter) and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement Agreement, and the Confidentiality Agreement; (b) are except for the provisions in Section 6.7, (which provisions may be enforced directly by Indemnified Parties) and Section 8.2, is not intended to and shall not confer upon any person Person other than the parties to this Agreement and their permitted assigns any rights, benefits or remediesremedies of any nature whatsoever, other than (i) the rights right of the holders of Shares of the Company to indemnification receive the Merger Consideration after the Closing (a claim with respect to which may not be made unless and insurance pursuant to Section 6.04 hereof (of which until the persons entitled to indemnification are the intended beneficiariesEffective Time shall have occurred), (ii) the right of the Company on behalf of its security holders to enforce the provisions of this Agreement subject to and in accordance with the terms hereof and (iii) the rights of the Company’s stockholders Financing Sources and holders the Financing Source Parties under Section 8.2(e), Section 8.2(f), Section 8.2(g), Section 9.1, this Section 9.6 or Section 9.11 (which provisions may be enforced directly by the Financing Source Parties). For the avoidance of Company Incentive Awards to pursue claims for damages and other reliefdoubt, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this the foregoing clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred only by the Company in connection therewith) may, in the Company’s its sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards Shares of the Company. The representations and warranties in this Agreement are the product of negotiations among the parties and are for the sole benefit of the parties. Any inaccuracies in such representations and warranties are subject to receive waiver by the benefits parties in accordance with the terms of Article II hereofthis Agreement without notice or liability to any other Person. The representations and warranties in this Agreement may represent an allocation among the parties of risks associated with particular matters regardless of the knowledge of any of the parties and may have been qualified by certain disclosures not reflected in the text of this Agreement. Accordingly, Persons other than the parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, Agreement (including the Company Disclosure Scheduleexhibits, the Parent Disclosure Schedule, annexes and schedules to this Agreement) and the Confidentiality Agreement (a) Agreement, which shall survive the execution and delivery of this Agreement, constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter hereof and thereof. (b) Nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement and the Confidentiality Agreement; (b) are not intended to confer upon any person other than the parties any rights, benefits or remedies, other than (i) as specifically provided in Section 2.5 and Section 3.9 (which shall be for the rights to indemnification benefit of each Consenting Member and insurance pursuant to its Affiliates), Section 6.04 hereof 6.15 (which shall be for the benefit of which the persons all holders of Company Common Units and other Persons entitled to indemnification are receive part of the intended beneficiariesAggregate Merger Consideration hereunder), Section 6.14 (which shall be for the benefit of the Company Indemnified Parties from and after the Effective Time), and Section 9.12 (which shall be for the benefit of the Persons named in the second sentence thereof); (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards Common Units and Parent Ordinary Shares to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger SubCompany’s willful respective Willful Breach or Fraud; and material breach (iii) the provisions of this AgreementArticle III with respect to holders of Company Common Units (which, from and after the Effective Time, shall be for the benefit of holders of Company Common Units as of the Effective Time); provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders members of Company Incentive Awards by Company in the Company’s its sole and absolute discretion (and not directly on behalf of such shareholders of Parent by any such stockholder or holder)Parent in its sole and absolute discretion, it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise Units or conversion of such Company Incentive Awards)Parent Ordinary Shares, as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company or Parent, as applicable, with respect to such claims (net of expenses incurred by the Company such Person in connection therewith) may, in the Company’s or Parent’s, as applicable, sole and absolute discretion, be (x) distributed, in whole or in part, by the Company such party to the holders of Company Common Stock and/or holders Units or Parent Ordinary Shares, as applicable, of Company Incentive Awards record as of any date determined by Company or Parent, as the Company case may be, or (y) retained by Company or Parent, as the Company case may be, for the use and benefit of the Company or Parent, as applicable, on behalf of its members or shareholders, as applicable, in any manner the Company such Person deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, Agreement and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter of this Agreement and the Confidentiality Agreement; (b) are not intended to and do not confer upon any person Person other than the parties hereto any rights, benefits rights or remediesremedies hereunder, other than (i) from and after the rights Effective Time, each Indemnified Party and their respective successors, heirs and representatives, each of whom shall have the right to indemnification and insurance pursuant to enforce the provisions of Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries)6.11 directly, (ii) the rights right of the Company’s stockholders and holders Company on behalf of the Company Incentive Awards Stockholders to pursue claims for damages and other reliefin the event of AIG’s, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that Agreement to the rights granted pursuant to this clause extent permitted by Section 8.03 (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company a claim with respect to such claims (net of expenses incurred which shall be enforceable only by the Company in connection therewith) mayCompany, in the Company’s its sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit on behalf of the Company in any manner the Company deems fit; providedStockholders), further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after following the Effective Time, the rights right of the Company’s stockholders Company Stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards Stock Rights, Fidelity & Guaranty Life Holdings stock options, Fidelity & Guaranty Life Holdings restricted stock units and Fidelity & Guaranty Life Holdings dividend equivalents to receive the benefits payments which they have the right to receive pursuant to Section 2.07 after the Closing. The representations, warranties, covenants and agreements in this Agreement are the product of Article II hereofnegotiations among the parties and are for the sole benefit of the parties and may, in certain instances, be qualified, limited or changed by confidential disclosure letters. Any inaccuracies in such representations or warranties or failure to perform or breach of such covenants or agreements are subject to waiver by the parties in accordance with Section 8.05 without notice or liability to any other Person. In some instances, the representations, warranties, covenants and agreements in this Agreement may represent an allocation among the parties of risk associated with particular matters regardless of the knowledge of any of the parties. Consequently, Persons other than the parties may not rely upon the representations, warranties, covenants and agreements in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

Entire Agreement; No Third-Party Beneficiaries. This AgreementAgreement (including the Exhibits, including the Company Disclosure Schedule, Letter and the Parent Disclosure ScheduleLetter), the Guarantee and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements and understandings, both written and oral, among between the parties Parties with respect to the subject matter of this Agreement. This Agreement and the Confidentiality Agreement; (b) are is not intended to and shall not confer any rights or remedies upon any person other than the parties any rightsParties and their respective successors and permitted assigns, benefits or remediesexcept for the provisions of Article 3 (which, other than (i) from and after the rights to indemnification Partnership Merger Effective Time and insurance pursuant to Section 6.04 hereof (REIT Merger Effective Time, as applicable, shall be for the benefit of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards Partnership Units immediately prior to pursue claims for damages and other relief, including equitable relief, for Parent’s the Partnership Merger Effective Time or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards)immediately prior to the REIT Merger Effective Time, as applicable), Section 3.7, Section 7.5 (which, from and subsequently trade after the Partnership Merger Effective Time and transfer therewith andthe REIT Merger Effective Time shall be for the benefit of the Indemnified Parties) and Section 7.18(a) (which, consequentlyfrom and after the REIT Merger Effective Time shall be for the benefit of officers of Company, any damages, settlements or other amounts recovered or received Company LP and the Company Subsidiaries set forth in Section 7.18(a)(i) of the Company Disclosure Letter). The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Company Parties in accordance with respect Section 10.6 without notice or liability to such claims (net any other Person. The representations and warranties in this Agreement may represent an allocation among the Parties of expenses incurred by risks associated with particular matters regardless of the Company knowledge of any of the Parties. Accordingly, persons other than the Parties may not rely upon the representations and warranties in connection therewith) may, in this Agreement as characterizations of actual facts or circumstances as of the Company’s sole and absolute discretion, be (x) distributed, in whole date of this Agreement or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofdate.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, the Parent Disclosure Schedule, ) and the Confidentiality Agreement (a) and any agreements entered into contemporaneously herewith constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; (b) Agreement and are not intended to and do not confer upon any person Person other than the parties hereto any rightslegal or equitable rights or remedies except (a) following the Effective Time, benefits or remediesfor the provisions of Section 6.04, other than and (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (iib) the rights of the Company’s stockholders and holders of Company Incentive Awards Stockholders to pursue claims for damages and other relief, including specific performance or other equitable relief, for Parent’s or Merger Sub’s willful breach or willful and material breach wrongful repudiation or termination of this Agreement, willful and wrongful failure to consummate the Merger or fraud, and after the Effective Time, the rights of Company Stockholders to receive the Merger Consideration and of holders of Company Stock Options, Performance-Based Restricted Stock Units, Performance Share Awards or Phantom Stock Units to receive the consideration described in Section 2.08; providedprovided that, howeverprior to the Effective Time, that the rights granted pursuant to this clause (ii) Section 9.07 shall only be enforceable on behalf of the Company Stockholders by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s its sole and absolute discretion (and not directly by any such stockholder or holder)discretion, it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements settlement or other amounts recovered or received by the Company with respect to such claims (net of any expenses incurred by the Company in connection therewith) with respect to such claims may, in the Company’s sole and absolute discretion, discretion be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards Stockholders as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company on behalf of the Company Stockholders in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. ‌ (a) This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Scheduleschedules hereto, and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements agreements, understandings, representations and understandingswarranties, both written and oral, among the parties with respect to the subject matter hereof and thereof. Each party hereto agrees that, except for the representations and warranties contained in this Agreement, neither Purchaser and Merger Sub, nor Company makes any other representations or warranties, and each hereby disclaims any other representations or warranties, express or implied, or as to the accuracy or completeness of any other information made by, or made available by, itself or any of its Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement and or the Confidentiality Agreement; transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other's Representatives of any documentation or other information with respect to any one or more of the foregoing. (b) are not This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties Person any rightsright, benefits benefit or remedies, other than remedy of any nature whatsoever under or by reason of this Agreement except for: (i) only following the rights Effective Time, the right of (A) Company's stockholders to indemnification and insurance receive the Merger Consideration in respect of shares of Company Common Stock pursuant to Section 6.04 hereof 1.8, (B) the holders of which Company Stock Options to receive the persons entitled aggregate consideration payable in respect of Company Stock Options pursuant to indemnification are Section 1.11(a) and (C) the intended beneficiariesholders of Other Stock Awards to receive the aggregate consideration payable in respect of Other Stock Awards pursuant to Section 1.11(b), (ii) the rights of the Company’s stockholders and holders right of Company Incentive Awards on behalf of its stockholders to pursue damages (including claims for damages based on loss of the economic benefits of the Merger to Company's stockholders), which right is hereby expressly acknowledged and other relief, including equitable relief, for Parent’s or agreed by Purchaser and Merger Sub’s willful , (iii) the right of the Indemnified Persons to enforce the provisions of Section 5.6 only and material breach (iv) the right of this Agreement; provided, however, that the Financing Parties to enforce the provisions of Section 8.6 and 8.15. The third-party beneficiary rights granted pursuant to this referenced in clause (ii) shall of the preceding sentence may be exercised only be enforceable by the Company (on behalf of such its stockholders as their agent) through actions expressly approved by the Board of Directors of Company, and holders no stockholder of Company Incentive Awards whether purporting to act in its capacity as a stockholder or purporting to assert any right (derivatively or otherwise) on behalf of Company, shall have any right or ability to exercise or cause the Company’s sole and absolute discretion (and not directly by exercise of any such stockholder or holder), it being understood right. (c) The representations and agreed that any warranties in this Agreement are the product of negotiations among the parties and all interests are for the sole benefit of the parties. Any inaccuracies in such claims shall attach representations and warranties are subject to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received waiver by the Company parties in accordance with respect Section 8.9 without notice or liability to such claims (net any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties of expenses incurred by risks associated with particular matters regardless of the Company Knowledge of any of the parties. Consequently, Persons other than the parties may not rely upon the representations and warranties in connection therewith) may, in this Agreement as characterizations of actual facts or circumstances as of the Company’s sole and absolute discretion, be (x) distributed, in whole date hereof or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofdate.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, Agreement (including the Company Disclosure ScheduleExhibits, Schedules, the Parent REIT I Disclosure Schedule, Letter and the REIT II Disclosure Letter) and the Confidentiality Agreement Agreements (a) constitute the entire agreement, agreement and supersede all prior agreements and understandings, both written and oral, among between the parties Parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; and, (b) except for the provisions of Article 3 (which, from and after the Merger Effective Time, shall be for the benefit of holders of shares of REIT I Common Stock immediately prior to the Merger Effective Time), Section 7.7 (which, from and after the Merger Effective Time shall be for the benefit of the Indemnified Parties) and Section 10.5(b), are not intended to confer upon any person Person other than the parties Parties hereto any rights, benefits rights or remedies. (b) Notwithstanding anything to the contrary herein, other than REIT I and REIT I Operating Partnership, on behalf of themselves and the REIT I Subsidiaries, hereby (i) acknowledge that none of the rights lenders or other parties providing any financing to indemnification REIT II and insurance pursuant the REIT II Parties (including for the purposes hereof the REIT I Parties and the REIT I Subsidiaries as of the Merger Effective Time) (collectively the “Financing Sources”) (and/or any of their Affiliates and/or their or their Affiliates’ officers, directors, employees, controlling persons, advisors, agents, attorneys or representatives) shall have any liability to Section 6.04 hereof any REIT I Party or any REIT I Subsidiary under this Agreement or for any claim made by any REIT I Party or any REIT I Subsidiary based on, in respect of, or by reason of, the transactions contemplated hereby, including, but not limited to, any dispute relating to, or arising from, any debt financing, any commitment letters relating thereto or the performance thereof (of which the persons entitled to indemnification are the intended beneficiariescollectively a “Debt Financing”), (ii) the waive any rights or claims of any kind or nature (whether in law or in equity, in contract, in tort or otherwise) any of the Company’s stockholders and holders REIT I Parties or any REIT I Subsidiary may have against any Financing Source (and/or any of Company Incentive Awards their Affiliates and/or their or their Affiliates’ officers, directors, employees, controlling persons, advisors, agents, attorneys or representatives) relating to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequentlyDebt Financing, any damages, settlements commitment letter or other amounts recovered the transactions contemplated hereby or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; thereby and (iii) after agree not to commence (and/if commenced, agrees to dismiss or otherwise terminate, and not to assist) any action, arbitration, audit, hearing, investigation, litigation, petition, grievance, complaint, suit or proceeding against any Financing Source (and/or any of their Affiliates and/or their or their Affiliates’ officers, directors, employees, controlling persons, advisors, agents, attorneys or representatives) in connection with this Agreement, the Effective TimeDebt Financing, any debt commitment letters or the transactions contemplated hereby or thereby. Nothing in this Section 10.5(b) will limit the rights of the Company’s stockholders to receive the Merger Consideration and REIT II in respect of the holders Debt Financing under any commitment letter related thereto. Without limiting the foregoing, no Financing Source (and/or any of Company Incentive Awards their Affiliates and/or their or their Affiliates’ officers, directors, employees, controlling persons, advisors, agents, attorneys or representatives) shall be subject to receive any special, consequential, punitive or indirect damages or damages of a tortious nature to a REIT I Party or any REIT I Subsidiary. Any disputes involving the benefits Financing Source will be governed by and construed in accordance with the applicable Laws of Article II hereofthe State of New York without giving regard to conflicts or choice of law principles that would result in the application of any Law other than the Law of the State of New York, and shall be subject to the wavier of jury trial, jurisdiction and venue (and related waivers) set forth in any commitment letter provided by the Financing Sources. The terms of this Section 10.5(b) may not be amended without the prior written consent of the Financing Sources.

Entire Agreement; No Third-Party Beneficiaries. This AgreementAgreement (including the Schedules, including the Company Disclosure Schedule, Letter and the Parent Sutherland Disclosure Schedule, Letter) and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all prior agreements and understandings, both written and oral, among between the parties Parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; and, (b) except for the provisions of Article 3 (which, from and after the Sutherland Merger Effective Time, shall be for the benefit of holders of shares of Sutherland Common Stock immediately prior to the Merger Effective Time) and Section 7.7 (which, from and after the Sutherland Merger Effective Time shall be for the benefit of the Indemnified Parties) are not intended to confer upon any person Person other than the parties Parties hereto any rights, benefits rights or remedies. Prior to the Merger Effective Time, other than (i) each holder of Sutherland Common Stock and Sutherland OP Units shall be a third party beneficiary of this Agreement for the rights to indemnification and insurance pursuant to Section 6.04 hereof (purpose of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue pursuing claims for damages and other relief(including damages based on the loss of the economic benefits of the Mergers, including equitable reliefthe loss of the premium offered to such holder) under this Agreement in the event of a failure by Company, for Parent’s Merger Sub or Merger Sub’s willful and Company Operating Partnership to effect the Mergers as required by this Agreement or a material breach by Company, Merger Sub or Company Operating Partnership that contributed to a failure of this Agreement; provided, however, that any of the conditions to Closing from being satisfied. The rights granted pursuant to this clause (ii) the immediately preceding sentence shall only be enforceable only by the Company on behalf of such stockholders and holders of Company Incentive Awards Sutherland in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s its sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive Sutherland Common Stock and the benefits of Article II hereofSutherland OP Units, and any amounts received by Sutherland in connection therewith may be retained by Sutherland.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, Agreement and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among between the parties Parties, or any of them, with respect to the subject matter hereof and thereof. Except (a) for the provisions of Article 3 (which, from and after the Effective Time, shall be for the benefit of holders of Common Stock as of the Effective Time and holders of Company Equity Awards as of immediately prior to the Effective Time), and Section 6.11 (which, from and after the Effective Time, shall be for the benefit of the Indemnified Parties), (b) subject to Section 8.3(b) and Section 9.5, that the Company shall have the right to pursue damages, on behalf of its stockholders solely in the event of Parent or Merger Sub’s Fraud or Willful Breach of this Agreement, which right is acknowledged by Xxxxxx and Merger Sub, and (c) for the limitations on liability of the Company Related Parties and the Parent Related Parties set forth in Section 8.3, this Agreement is for the sole benefit of the Parties and their permitted assigns and nothing in this Agreement is intended to and shall not confer upon any Person other than the Parties any rights or remedies hereunder. Notwithstanding anything to the contrary in this Agreement, (x) without limitation to the foregoing, subject to Section 8.3(b) and Section 9.5, Parent and Merger Sub expressly acknowledge and agree, at or after the time at which the Required Company Stockholder Vote shall have been obtained, that the Company shall have the right, on behalf of its stockholders, and is hereby appointed as representative of its stockholders solely for purposes of clause (x) of this Section 9.9, to pursue damages against Parent and/or Merger Sub for the loss of the Merger Consideration (including, for the avoidance of doubt, damages based on the loss of the premium offered to each such holder) in the event of any Fraud or Willful Breach of this Agreement and the Confidentiality Agreement; (b) are not intended to confer upon any person other than the parties any rights, benefits by Parent or remedies, other than (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (Merger Sub in respect of which the persons Company is entitled to indemnification bring a claim hereunder and (y) Section 9.4, Section 9.7, Section 9.8, this Section 9.9, Section 9.10 and Section 9.13 are intended for the intended beneficiaries), (ii) benefit of the rights Debt Financing Sources and the Debt Financing Sources shall be entitled to rely on and enforce the provisions of such Sections. The appointment of the Company as representative of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use this Section 9.9 shall be irrevocable and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or binding on their behalf other than the Company; and (iii) after the Effective Time, the rights all of the Company’s stockholders to receive from and after the Merger Consideration and satisfaction of the holders of Company Incentive Awards to receive the benefits of Article II hereofcondition set forth in Section 7.1(a).

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, including the Company Disclosure ScheduleLetter, the Parent Disclosure ScheduleLetter, the Exhibits attached hereto and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements agreements, understandings, representations and understandingswarranties, both written and oral, among the parties with respect to the subject matter hereof and thereof. Each party hereto agrees that, except for the representations and warranties contained in this Agreement, neither Parent and Merger Sub, nor the Company makes any other representations or warranties, and each hereby disclaims any other representations or warranties, express or implied, or as to the accuracy or completeness of any other information made by, or made available by, itself or any of its Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement and or the Confidentiality Agreement; transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other's Representatives of any documentation or other information with respect to any one or more of the foregoing. (b) are not intended This Agreement shall be binding upon and inure solely to confer upon any person other than the parties any rights, benefits or remedies, other than benefit of each party except for: (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that the rights granted pursuant to this clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after following the Effective Time, the rights right of the Company’s 's stockholders to receive the Merger Consideration and in respect of shares of Company Common Stock pursuant to Section 2.1, (ii) the right of the holders Company on behalf of Company Incentive Awards its stockholders to receive pursue damages (including claims for damages based on loss of the economic benefits of Article II hereofthe transaction to the Company's stockholders), which right is hereby expressly acknowledged and agreed by Parent and Merger Sub, (iii) the right of the Indemnified Parties to enforce the provisions of Section 6.8 only and (iv) the right of the Financing Sources to enforce the provisions of Section 9.10 and Section 9.12. The third-party beneficiary rights referenced in clause (ii) of the preceding sentence may be exercised only by the Company (on behalf of its stockholders as their agent) through actions expressly approved by the Board of Directors of the Company, and no stockholder of the Company whether purporting to act in its capacity as a stockholder or purporting to assert any right (derivatively or otherwise) on behalf of the Company, shall have any right or ability to exercise or cause the exercise of any such right. (c) The representations and warranties in this Agreement are the product of negotiations among the parties and are for the sole benefit of the parties. Any inaccuracies in such representations and warranties are subject to waiver by the parties in accordance with Section 9.9 without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties of risks associated with particular matters regardless of the Knowledge of any of the parties. Consequently, Persons other than the parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement (including the Schedules and Exhibits hereto), together with the Confidentiality Agreement, including the Company Disclosure Schedule, the Parent Disclosure ScheduleCommitment Letters, and the Confidentiality Agreement (a) constitute Sponsor Guarantees contain the entire agreement, complete agreement between the parties hereto with respect to the transactions contemplated hereby and thereby and supersede all prior agreements and understandings, both written and oral, among understandings between the parties hereto with respect thereto. (b) Parent acknowledges that the only representations or warranties made by the Company are as set forth in this Agreement. Parent acknowledges that no person has made any representation or warranty to Parent with respect to: (i) any information set forth in the materials the Company prepared for parties interested in investing in or acquiring the Company or (ii) any Company Projection delivered by or on behalf of Parent and the Company. Parent acknowledges that: (A) there are uncertainties inherent in attempting to make such Company Projections; (B) it is familiar with such uncertainties; (C) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such Company Projections so furnished to it; and (D) it shall have no claim against any such person with respect to any such Company Projection (other than in the subject matter case of fraud). Nothing in this Agreement and the Confidentiality Agreement; (b) are not , express or implied, is intended to or shall confer upon any person other than the parties hereto (and their respective successors and permitted assigns) any rights, benefits right or remediesremedy of any nature whatsoever under or by reason of this Agreement, other than as provided in Section 5.7, provided that the Debt Financing Sources (ias defined in Section 8.11) the rights shall be considered third party beneficiaries with respect to indemnification and insurance pursuant to this Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries8.5(b), (ii) the rights of the Company’s stockholders Section 7.2(g), Section 8.6, Section 8.10 and holders of Company Incentive Awards to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach Section 8.11 of this Agreement; provided. (c) Each of Merger Sub and Parent acknowledges that it has conducted an investigation of the financial condition, howeveroperations, that assets, liabilities and properties of the rights granted pursuant Company and each Subsidiary of the Company and, in making its determination to proceed with the transactions contemplated by this clause (ii) shall only be enforceable Agreement, each of Merger Sub and Parent has relied and will rely solely on the results of its own investigation and the limited representations and warranties of the Company expressly and specifically set forth in this Agreement, including the Schedules. Each of Merger Sub and Parent further acknowledges that, except as set forth herein, no promise or inducement for this Agreement was offered by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net Subsidiary of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or any of their respective Representatives or relied upon by Merger Sub or Parent. THE REPRESENTATIONS AND WARRANTIES BY THE COMPANY IN ARTICLE III HEREOF CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF THE COMPANY TO MERGER SUB AND PARENT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND MERGER SUB AND PARENT UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESS OR IMPLIED (yINCLUDING ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OR PROSPECTS OF THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY) retained by ARE SPECIFICALLY DISCLAIMED BY THE COMPANY. With respect to all materials specifically referenced in this Agreement as having been delivered or made available to Merger Sub or Parent, such materials shall be deemed to have been delivered or made available to Merger Sub or Parent only if such materials were publicly filed with the Company for SEC, posted to the use and benefit Data Room or otherwise delivered to a representative of the Company in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock Parent via e-mail attachment or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofelectronic file transfer method.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, including the Company Disclosure ScheduleLetter, the Parent Disclosure ScheduleLetter, the Exhibits attached hereto and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements agreements, understandings, representations and understandingswarranties, both written and oral, among the parties with respect to the subject matter hereof and thereof. Each party hereto agrees that, except for the representations and warranties contained in this Agreement, neither Parent and Merger Sub nor the Company makes any other representations or warranties, and each hereby disclaims any other representations or warranties, express or implied, as to the accuracy or completeness of any other information made by, or made available by, itself or any of its Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement and or the Confidentiality Agreement; transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing. (b) are not intended This Agreement shall be binding upon and inure solely to confer upon any person other than the parties any rights, benefits or remedies, other than benefit of each party except for: (i) only following the rights Effective Time, the provisions of Article II shall inure to indemnification the benefit of, and insurance pursuant be enforceable by, holders of Company Common Stock, Company Options, Company RSU Awards and Company PSU Awards, to Section 6.04 hereof (of which the persons entitled extent necessary to indemnification are receive the intended beneficiaries), consideration due to such Persons thereunder; (ii) the right of the Company on behalf of its stockholders to pursue damages (including claims for damages based on loss of the economic benefits of the transaction to the Company’s stockholders) in the event of any breach of this Agreement by Parent or Merger Sub in respect of which the Company is entitled to bring a claim hereunder, which right is hereby expressly acknowledged and agreed by Parent and Merger Sub; and (iii) the provisions of Section 6.8 shall inure to the benefit of, and be enforceable by, the Indemnified Parties. The third-party beneficiary rights referenced in clause (ii) of the preceding sentence may be exercised only by the Company (on behalf of its stockholders as their agent) through actions expressly approved by the Board of Directors of the Company’s stockholders , and holders no stockholder of Company Incentive Awards the Company, whether purporting to pursue claims for damages act in its capacity as a stockholder or purporting to assert any right (derivatively or otherwise) on behalf of the Company, shall have any right or ability to exercise or cause the exercise of any such right and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, it is understood that the rights granted pursuant to this stockholders under such clause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s sole and absolute discretion (and not directly by any such stockholder or holder), it being understood and agreed that any and all interests in such claims shall attach to such the shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith therewith, and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, rights may in the Company’s sole and absolute discretion, discretion be (xA) distributed, distributed in whole or in part, part by the Company to the holders of shares of Company Common Stock and/or holders of Company Incentive Awards record as of any date determined by the Company or (yB) retained by the Company for the use and benefit of the Company on behalf of its stockholders in any manner the Company deems fit; provided, further, however, that under no circumstances shall any . (c) The representations and warranties in this Agreement are the product of negotiations among the parties and are for the sole benefit of the parties. Any inaccuracies in such rights of holders of Company Common Stock representations and warranties are subject to waiver by the parties in accordance with Section 9.9 without notice or Company Incentive Awards be enforceable by such stockholders, holders or by liability to any other person acting for or on their behalf Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties of risks associated with particular matters regardless of the Knowledge of any of the parties. Consequently, Persons other than the Company; parties may not rely upon the representations and (iii) after the Effective Time, the rights warranties in this Agreement as characterizations of actual facts or circumstances as of the Company’s stockholders to receive the Merger Consideration and date of the holders this Agreement or as of Company Incentive Awards to receive the benefits of Article II hereofany other date.

Entire Agreement; No Third-Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure ScheduleAnnex, the Parent Disclosure Schedule, Exhibits and Schedules) and the Confidentiality Agreement (a) and any agreements entered into contemporaneously herewith constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and the Confidentiality Agreement; (b) Agreement and are not intended to and do not confer upon any person Person other than the parties hereto any rightslegal or equitable rights or remedies except (a) following the Effective Time, benefits or remediesfor the provisions of Section 6.05, other than and (i) the rights to indemnification and insurance pursuant to Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries), (iib) the rights of the Company’s stockholders and holders of Company Incentive Awards Stockholders to pursue claims for damages and other relief, including specific performance or other equitable relief, relief for Parent’s or Merger Sub’s willful and material breach breach, wrongful repudiation or termination of this Agreement, wrongful failure to consummate the Offer, the Merger or fraud, and after the Effective Time, the rights of Company Stockholders to receive the Merger Consideration; providedprovided that, howeverprior to the Appointment Time, that the rights granted pursuant to this clause (ii) Section 9.07 shall only be enforceable on behalf of the Company Stockholders by the Company on behalf of such stockholders and holders of Company Incentive Awards in the Company’s its sole and absolute discretion (and not directly by any such stockholder or holder)discretion, it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements settlement or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, discretion be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company Stockholders or (y) retained by the Company for the use and benefit of the Company on behalf of the Company Stockholders in any manner the Company deems fit; provided, further, however, that under no circumstances shall any such rights of holders of Company Common Stock or Company Incentive Awards be enforceable by such stockholders, holders or by any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereof.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, Agreement (including the exhibits, annexes and schedules to this Agreement), the Company Disclosure ScheduleUndertakings, the Parent Disclosure Schedule, Voting Agreements and the Confidentiality Agreement (a) Agreement, which shall survive the execution and delivery of this Agreement, constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter of this Agreement hereof and the Confidentiality Agreement; thereof. (b) are not Nothing in this agreement, express or implied, is intended to or shall confer upon any person other than the parties Person any rightsright, benefits benefit or remedies, remedy of any nature whatsoever under or by reason of this agreement other than (i) as specifically provided in Section 7.13 (which shall be for the rights to indemnification benefit of the Indemnified Parties from and insurance pursuant to Section 6.04 hereof (of which after the persons entitled to indemnification are the intended beneficiariesAcceptance Time), ; (ii) the rights of the Company’s stockholders and holders of Company Incentive Awards Shares to pursue claims for damages and other relief, including equitable relief; (iii) the provisions of Article II with respect to holders of Parent Shares (which, from and after the Parent Merger Effective Time, shall be for Parent’s or the benefit of such holders as of the Parent Merger Sub’s willful Effective Time) and material breach (iv) the provisions of this AgreementArticle III with respect to holders of Company Shares (which, from and after the Acceptance Time, shall be for the benefit of holders of the Company Shares as of the Acceptance Time); provided, however, that the rights granted pursuant to this clause subclause (ii) shall only be enforceable by the Company on behalf of such stockholders and holders of shareholders by the Company Incentive Awards in the Company’s its sole and absolute discretion (and not directly by any such stockholder or holder)discretion, it being understood and agreed that any and all interests in such claims shall attach to such shares of Company Common Stock and Company Incentive Awards (and any shares of Company Common Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, Shares and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x1) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders Shares of Company Incentive Awards record as of any date determined by the Company or (y2) retained by the Company for the use and benefit of the Company on behalf of its shareholders in any manner the Company deems fit. (c) The parties acknowledge and agree that in the event that any of the provisions of this Agreement are breached or are not performed in accordance with their terms, irreparable damage may occur; that the parties and the third-party beneficiaries of this Agreement may not have an adequate remedy at law; that the parties (on behalf of themselves and the third-party beneficiaries of this Agreement) shall be entitled to injunctive or other equitable relief to prevent breaches of this Agreement and to enforce the terms of this Agreement; and that the parties to this Agreement shall not object to the granting of injunctive or other equitable relief on the basis that there exists an adequate remedy at law. (d) If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable for any reason (i) the validity, legality and enforceability of the remaining provisions of this agreement shall not be affected or impaired thereby; (ii) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable Law and to give the maximum effect to the intent of the parties hereto; and (iii) to the fullest extent possible, the provisions of this Agreement shall be construed to give the maximum effect to the intent of the parties hereto; provided, further, however, that under no circumstances shall any such the rights of holders of Company Common Stock or Company Incentive Awards Shares as third-party beneficiaries pursuant to Section 10.11(b) be enforceable by such stockholders, holders shareholders or by any other person acting for or on their behalf other than the Company; Company and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofits successors in interest.

Entire Agreement; No Third-Party Beneficiaries. (a) This Agreement, including the Company Disclosure Schedule, the Parent Disclosure Schedule, Schedule and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties parties, or any of them, with respect to the subject matter of this Agreement hereof and thereof. (b) This Agreement, the Company Disclosure Schedule, the Parent Disclosure Schedule, and the Confidentiality Agreement; (b) Agreement are not intended to and shall not confer upon any person Person other than the parties hereto any rightsrights or remedies hereunder, benefits or remedies, other than except (i) as set forth in or contemplated by the rights to indemnification terms and insurance pursuant to provisions of Section 6.04 hereof (of which the persons entitled to indemnification are the intended beneficiaries5.9 and Section 8.6(c), (ii) the rights holders of shares of the Company Common Stock, Series B Preferred Stock, Company Options and RSUs shall be third party beneficiaries of this Agreement for the purpose of pursuing claims for damages (including damages based on loss of the economic benefits of the transaction to the Company’s stockholders stockholders) in the event of a failure by Parent or Merger Sub to effect the Merger as required by this Agreement or a material breach by Parent or Merger Sub that contributed to a failure of any of the conditions to Closing from being satisfied, whether or not this Agreement has been validly terminated pursuant to Article VII, which right is hereby expressly acknowledged and agreed by the parties hereto, and (iii) from and after the Effective Time, the rights of holders of shares of the Company Common Stock and Series B Preferred Stock and the holders of Company Incentive Awards Options and RSUs to pursue claims for damages and other relief, including equitable relief, for Parent’s or Merger Sub’s willful and material breach of this Agreement; provided, however, that receive the consideration set forth in Article II. The rights granted pursuant to this clause (ii) of this Section 8.6(b), including the power to settle, waive or abandon any such rights or related claims for damages, shall be subject to the limitations of Section 7.3, and shall only be enforceable by the Company on behalf of such Company’s stockholders and holders of Company Incentive Awards in by the Company’s , in its sole and absolute discretion (and not directly by any such stockholder or holder)discretion, as agent for its stockholders, it being understood and agreed that any and all interests in such claims shall attach to such shares of the Company Common Stock and Company Incentive Awards (and any shares of Company Common Series B Preferred Stock issued upon exercise or conversion of such Company Incentive Awards), as applicable, and subsequently trade and transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretiondiscretion of the Company, be (x) distributed, in whole or in part, by the Company to the holders of Company Common Stock and/or holders of Company Incentive Awards as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company on behalf of its stockholders in any manner the Company deems fit; provided. (c) This Agreement, furtherthe Company Disclosure Schedule, howeverthe Parent Disclosure Schedule, and the Confidentiality Agreement are not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder, except (i) as set forth in or contemplated by the terms and provisions of Section 5.9 or Section 8.6(b), (ii) the holders of shares of the Parent Common Stock shall be third party beneficiaries of this Agreement for the purpose of pursuing claims for damages (including damages based on loss of the economic benefits of the transaction to the Parent’s stockholders) in the event of a failure by the Company to effect the Merger as required by this Agreement or a material breach by the Company that under no circumstances shall contributed to a failure of any of the conditions to Closing from being satisfied, whether or not this Agreement has been validly terminated pursuant to Article VII, which right is hereby expressly acknowledged and agreed by the parties hereto. The rights granted pursuant to clause (ii) of this Section 8.6(c), including the power to settle, waive or abandon any such rights or related claims for damages, shall be subject to the limitations of holders Section 7.3, and shall only be enforceable on behalf of Company Parent’s stockholders by Parent, in its sole and absolute discretion, as agent for its stockholders, it being understood and agreed that any and all interests in such claims shall attach to such shares of Parent Common Stock and subsequently transfer therewith and, consequently, any damages, settlements or Company Incentive Awards other amounts recovered or received by Parent with respect to such claims (net of expenses incurred by Parent in connection therewith) may, in the sole and absolute discretion of Parent, be enforceable retained by such stockholders, holders or by Parent for the use and benefit of Parent on behalf of its stockholders in any other person acting for or on their behalf other than the Company; and (iii) after the Effective Time, the rights of the Company’s stockholders to receive the Merger Consideration and of the holders of Company Incentive Awards to receive the benefits of Article II hereofmanner Parent deems fit.