Common use of Entitlement to Damages Clause in Contracts

Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or the Merger Sub are required to pay damages pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Preferred Stock, Common Stock and, to the extent applicable, Options. Accordingly, in the event that damages are payable pursuant to this Article X, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and Buyer or the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative. (b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Preferred Stock, Common Stock or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”. (c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a), the Holder Representative shall distribute the Holder Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as of the Termination Date and then (to the extent of any remaining Holder Damages), to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares) and (C) the number of shares of Common Stock issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) the sum of (i) the aggregate number shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares), plus (iii) the aggregate number of shares of Common Stock issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.

Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or the Merger Sub are required pursuant to a final order of a court of competent jurisdiction to pay damages pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Common Shares and Preferred Stock, Common Stock Shares and, to the extent applicable, Options. Accordingly, at the election of the Holder Representative, in the event that damages are payable pursuant to this Article X‎X, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and Buyer or the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative. (b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Common Shares or Preferred Stock, Common Stock or Damaged Options Shares as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”. (c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a‎10.3(a), the Holder Representative shall distribute the Holder Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as of the Termination Date and then (to the extent of any remaining Holder Damages), Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentagesthe manner such amounts would be distributed pursuant to Section 2 of the Charter, subject to any applicable withholdingadjustment determined by the Board of Directors to be appropriate to provide for payment of a portion of such Holder Damages to one or more holders of any Options, if any, that the Board of Directors determines have vested on or before the Termination Date; provided, however, that payment of any Holder Damages in respect of a Damaged any such Option granted to a Termination Date Holder who was held by an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holdersuch holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect distributed. (d) Notwithstanding anything to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata the contrary in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” meansclaims for Holder Damages shall be brought solely by the Holder Representative, with respect on behalf of and as agent to any the Termination Date HolderHolders, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares and no holder of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this AgreementShares, (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect or Options shall be entitled to such Preferred Shares) and (C) the number of shares of Common Stock issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) the sum of (i) the aggregate number shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares), plus (iii) the aggregate number of shares of Common Stock issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreementassert a claim for Holder Damages.

Entitlement to Damages. ‌ If: a. the Supplier defaults as set out in clause 3.1; and b. the Estimated Final Equity is less than or equal to the Market Price, CBH Grain may recover liquidated damages from the Supplier calculated as: (a1) The parties hereto acknowledge and agree that, in the event of a termination Default under clause 3.1(a), the difference per tonne between the Estimated Final Equity on the next Business Day after the end of this Agreement, to the extent Buyer or the Merger Sub are required to pay damages pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement Delivery Period and the transactions contemplated hereby, including any disputes related thereto, such excess Market Price on the same day multiplied by the number of Tonnes which the Supplier fails to deliver in accordance with the terms and conditions of the Contract (the “Holder DamagesUndelivered Tonnage”); (2) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Preferred Stock, Common Stock and, to the extent applicable, Options. Accordingly, in the event that damages are payable pursuant to this Article Xof Default under clause 3.1(b), the Holder Representative shall, in its sole difference per tonne between the Estimated Final Equity on the day the Supplier notifies CBH that it is unable to deliver the Tonnage required under the Contract and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and Buyer or Market Price on the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing same day multiplied by the Holder Representative.Undelivered Tonnage,‌ (b3) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Preferred Stock, Common Stock or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”.plus: (c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a), the Holder Representative shall distribute the Holder Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as amount of the Termination Date and then Estimated Costs that would have been payable for the Undelivered Tonnage (to had the extent of any remaining Holder Damages), to Undelivered Tonnage been Nominated) as at the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholdingnext Business Day after the Delivery Period; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares) and (C) the number of shares of Common Stock issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) the sum of (i) the aggregate number shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus and (ii) the aggregate number Underwriting Fee (if CBH Grain has offered underwriting in accordance with the General Terms and Conditions and the Supplier elected the underwriting option) which would have been payable for the Undelivered Tonnage (had it been Nominated).‌ c. Liquidated damages payable in accordance with clause 3.2b. will be determined on the: (1) APW1 price for wheat contracts;‌ (2) ANW1 price for noodle wheat contracts; (3) BFD1 price for feed barley contracts; (4) MAX1 price for malt barley contracts; (5) CAN1 price for non-GM canola contracts; and (6) CAG1 price for GM canola contracts. d. If the Supplier Defaults under this contract CBH Grain has the right to not enter into further contracts with the Supplier. e. The Supplier must pay interest on all amounts owing to CBH Grain on any invoice that remains outstanding upon expiration of shares of Common Stock issuable upon the conversion of due date expressed in the invoice at the Default Rate. f. Interest will be calculated daily from the due date expressed in the invoice, until all Preferred Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) amounts owing on the date invoice, including interest, have been paid.‌ g. Payments by the Supplier marked specifically for a particular invoice will be applied by CBH Grain firstly in reduction of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are interest outstanding and unpaid with respect accruing on the invoice and then on any amount outstanding on the invoice. h. Any expenses reasonably incurred by CBH Grain in recovering outstanding monies owing to such Preferred Shares), plus (iii) it under the aggregate number of shares of Common Stock issuable upon the exercise Contract shall be paid in full by the Supplier. i. CBH Grain will not be entitled to recover under this clause any liability incurred as a result of all Damaged Options held by all holders as its gross negligence, wilful default or fraud.‌ j. CBH Grain will not be entitled to recover under this clause any amount for which it receives compensation under any other provision of 11:59 p.m. (Eastern time) on the date of termination of this AgreementContract.

Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or the Merger Sub are required to pay damages or the Termination Fee pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Preferred Stock, Common Stock and, to the extent applicable, Options. Accordingly, in the event that damages are payable pursuant to this Article XIn such a case, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages or Termination Fee constitute Holder Damages, and Buyer or the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative. (b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options” for Options”for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Preferred Stock, Common Stock or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”. (c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a), the Holder Representative shall distribute the Holder Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as of the Termination Date and then (to the extent of any remaining Holder Damages), Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” meansPercentage”means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, Agreement and (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares) and (C) the number of shares of Common Stock issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) (i) the sum of (i) the aggregate number shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares), plus (iii) the aggregate number of shares of Common Stock issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.

Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or the Merger Sub are Parent is required to pay damages pursuant to this Article X or the Parent Fee in an amount that exceeds the CompanyGalaxy’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Preferred Stock, Common Stock Galaxy Shares and, to the extent applicable, Options. Accordingly, in the event that damages or the Parent Fee are payable pursuant to this Article XIX, the Holder Stockholder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages or Parent Fee constitute Holder Damages, and Buyer or the Merger Sub, as applicable, Parent shall pay such Holder Damages to the Holder Representative, for the account of, and as agent to, the Termination Date Holders, to one or more Holders in such accounts designated in writing by the Holder Stockholder Representative. (b) On or prior to the date the Holder Damages are paid to the Holder Representative Termination Date Holders in accordance with Section 10.3(a9.6(a), or as promptly as practicable thereafter, the Galaxy Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Preferred Stock, Common Stock Galaxy Shares or Damaged Options as of 11:59 p.m. (p.m., Eastern time) , on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”. (c) Promptly after the later of (i) the determination in accordance with Section 10.3(b9.6(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative Termination Date Holders in accordance with Section 10.3(a9.6(a)), the Holder Representative Parent shall distribute the Holder Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as of the Termination Date and then (to the extent of any remaining Holder Damages), Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted under the Stock Plan to a Termination Date Holder who was an employee or independent contractor of the Company Galaxy or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which when such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company Galaxy or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) ” shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options). For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Galaxy Shares held by such holder as of 11:59 p.m. (p.m., Eastern time) , on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares) and (CB) the number of shares of Common Stock Galaxy Shares issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (p.m., Eastern time) , on the date of termination of this Agreement, divided by (y) the sum of (i) the sum of the aggregate number shares of Common Stock Galaxy Shares held by all holders as of 11:59 p.m. (p.m., Eastern time) , on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the conversion of all Preferred Galaxy Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares), plus (iii) the aggregate number of shares of Common Stock issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (p.m., Eastern time) , on the date of termination of this Agreement.

Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or the Merger Sub are required to pay damages pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Preferred Stock, Common Stock Units and, to the extent applicable, Options. Accordingly, in the event that damages are payable pursuant to this Article X, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and and, to the extent the Holder Representative notifies Buyer of such determination, Buyer or the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative and the portion of such damages otherwise payable directly to the Company pursuant to Section 10.3(a) shall be reduced by the amount of such payment to the Holder Representative. (b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors Managers of the Company will determine in good faith which, if any, Options which shall would have vested on or before been In the Termination Date Money Options as of the Effective Time should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Preferred Stock, Common Stock Units or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”. (c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a)), the Holder Representative shall distribute the Holder Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as of the Termination Date and then (to the extent of any remaining Holder Damages), Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Shares Units held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares) and (CB) the number of shares of Common Stock Units issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) the sum of (i) the sum of the aggregate number shares of Common Stock Units held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares), plus (iii) the aggregate number of shares of Common Stock Units issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.

Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or the Merger Sub are required to pay damages pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Preferred Common Stock, Common Stock and, to the extent applicable, Options. Accordingly, in the event that damages are payable pursuant to this Article X, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and Buyer or the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative, Representative for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative. (b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Preferred Stock, Common Stock or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”. (c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a), the Holder Representative shall distribute the Holder Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as of the Termination Date and then (to the extent of any remaining Holder Damages), Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares) and (C) the number of shares of Common Stock issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) the sum of (i) the aggregate number of shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares), plus (iii) the aggregate number of shares of Common Stock issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.