Common use of Exchange of Shares in the Merger Clause in Contracts

Exchange of Shares in the Merger. The manner of making exchange of shares in the Merger shall be as follows: (a) Promptly upon receipt of the Final Allocation Schedule, Parent shall make available to American Stock Transfer Company or another exchange agent selected by Parent (the "Exchange Agent") for the benefit of the holders of shares of Company Capital Stock, a sufficient number of certificates representing the aggregate number of Parent Shares issuable pursuant to Section 4.1 (the certificates representing such aggregate number of Parent Shares being hereinafter referred to as the "Stock Merger Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable written instructions, deliver the Parent Shares contemplated to be issued pursuant to Section 4.1 out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any other purpose . (b) Promptly upon receipt of the Final Allocation Schedule, the Exchange Agent shall mail and make available to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Stock (the "Certificates") (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment in exchange. All Parent Shares received by Company shareholders in respect of the Retention Pool Shares shall, in addition to the forfeiture provisions of the grant of such Retention Pool Shares, be subject to prohibitions on transfer for twelve (12) months as to one-third of such Retention Pool Shares, for twenty-four (24) months as to one-third of such Retention Pool and for thirty-six (36) months as to the remaining one-third of such Retention Pool Shares. All Parent Shares received by E*TRADE Group, Inc. ("E*TRADE") and its Subsidiaries, General Atlantic Partners, LLC, and entities controlled by it, and Softbank Corp., and entities controlled by it, including the portion thereof to be deposited in the Special Escrow Fund established pursuant to Section 4.2(d), shall be, to the extent each such shareholder agrees thereto, subject to prohibitions on transfer for a three (3)-year period from the Effective Time (the "Strategic Investor Lock-up Period"). The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to the Strategic Investor Lock-up Period are referred to as the "Strategic Investor Lock-up Shares." All Parent Shares received in the Merger by each Company shareholder listed on Schedule 4.2(b) shall be, to the extent such shareholder agrees thereto, subject to prohibitions on transfer until one hundred eighty (180) days following the Effective Time. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to such 180-day restriction on transfer are referred to as the "Base Lock-up Shares." Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, the holder of such Certificates shall be entitled to receive for the shares represented by such Certificates the consideration applicable to such shares and the Certificates so surrendered shall be canceled. Upon such surrender, the Exchange Agent shall issue to each holder of Retention Pool Shares three certificates for the Parent Shares issuable to such holder, one of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twelve (12)-month prohibition on transfer, the second of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twenty-four (24) month prohibition on transfer and the other of which shall be for the remainder of such Parent Shares and shall be subject to a restrictive legend substantially in the form of Exhibit B providing for a thirty-six (36) month restriction on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Base Lock-up Shares a certificate for the Parent Shares issuable to such holder, which shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a one hundred eighty (180)-day prohibition on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Strategic Investor Lock-up Shares a certificate for the Parent Shares issuable to such holder, net of the number of shares to be deposited into the Special Escrow Fund described in Section 4.2(d), subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a three(3)-year prohibition on transfer. (c) The transfer restrictions on the Strategic Investor Lock-up Shares and Base Lock-up Shares pursuant to Section 4.2(b) shall cease upon a Change in Control with respect to Parent. For purposes of this Section, a Change in Control with respect to Parent has the same meaning as a Change in Control of Wit in the Strategic Alliance Agreement dated as of the date of this Agreement between Parent and E*TRADE (the "Strategic Alliance Agreement"). Notwithstanding anything to the contrary, at any time upon written notice, affiliates of General Atlantic Partners 61, L.P., may designate other shares of Parent Stock (the "Substitute Shares") as being subject to the restrictions on transfer set forth herein, and upon receipt of such notice and deposit of such Substitute Shares, Parent shall release an equal number of shares of Parent Stock (the "Released Shares") held by General Atlantic Partners 61, L.P., and Capital GAP Co- Investment Partners II, L.P. (as specified in such written notice) from the restrictions on transfer set forth herein. (d) Within five (5) business days after the Effective Time, the Parent Shares comprising the Special Escrow Fund (as defined below) shall be registered in the name of, and deposited with an escrow agent selected by Parent with the reasonable consent of the Company (the "Special Escrow Fund Agent"), such deposit (together with interest and other income thereon) to constitute the special escrow fund (the "Special Escrow Fund") and to be governed by the terms set forth in this Section 4.2(d) and an escrow agreement, in form and substance reasonably satisfactory to the parties, embodying the terms hereof, and except as the terms set forth in this Section 4.2(d) may differ, substantially in the form of the Escrow Agreement attached as Exhibit H. The Special Escrow Fund shall consist of twenty-five percent (25%) of the Strategic Investor Lock-up Shares (the "Special Escrow Shares"). One thirty-sixth of the Special Escrow Shares shall be released from the Special Escrow Fund on the last business day of each calendar month following the month in which the Effective Time occurs; provided, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to E*TRADE and a non-assumption of the Strategic Alliance Agreement by the acquiring or successor entity, all Special Escrow Shares then remaining in the Special Escrow Fund shall be surrendered to Parent for cancellation; and provided further, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to Wit, all Special Escrow Shares then remaining in the Special Escrow Fund shall be released to the Company shareholders that originally contributed such shares to the Special Escrow Fund. Any Parent Shares released from the Special Escrow Fund shall continue to bear the legend on prohibition of transfer pursuant to Section 4.2(b). (e) Until surrendered, such Certificates shall represent solely the right to receive the consideration applicable to such Share. No dividends or other distributions that are declared after the Effective Time on Parent Shares and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares until Certificates representing the right to receive such Parent Shares are surrendered in appropriate form. Upon such surrender, there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions having a record date after the Effective Time and a payment date prior to the time of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions on such Parent Shares which shall have a record date after the Effective Time and prior to such surrender and a payment date after such surrender. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If any certificate representing Parent Shares is to be issued or cash payment in lieu of fractional share interests is to be made to a Person other than the one in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any applicable transfer or other similar taxes, or shall establish to the satisfaction of the Exchange Agent that any such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Parent Shares or dividends thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent Shares, delivered to a public official when and if required by applicable law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares held by it from time to time hereunder, except that the Exchange Agent shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares for the account of the Persons entitled to the dividends or distributions. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to indemnify Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificate. (f) Any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund (as hereinafter defined in Section 4.3) which remains unclaimed by the former stockholders of the Company for six (6) months after the Effective Time shall be delivered to Parent, upon demand of Parent, and any former stockholders of the Company shall thereafter look only to Parent for payment of their claim for the consideration for the Shares, including any cash in lieu of fractional Parent Shares.

Exchange of Shares in the Merger. The manner of making exchange of shares in the Merger shall be as follows: (a) Promptly upon receipt of At the Final Allocation ScheduleEffective Time, Parent New Dreyer's shall make available to American Stock Transfer Company or another an exchange agent selected by Parent New Dreyer's (the "Exchange AgentEXCHANGE AGENT") ), for the benefit of those Persons who immediately prior to the Effective Time were the holders of shares of Company Capital StockDreyer's Common Stock (other than the Nestle Shares), a sufficient number of certificates representing shares of Class A Common Stock required to effect the delivery of the aggregate number of Parent Shares issuable Dreyer's Merger Consideration required to be issued pursuant to Section 4.1 2.11(a) (the certificates representing shares of Class A Common Stock comprising such aggregate number of Parent Shares Dreyer's Merger Consideration being hereinafter referred to as the "Stock Merger Exchange FundEXCHANGE FUND"). The Exchange Agent shall, pursuant to irrevocable written instructions, deliver the Parent Shares contemplated to be issued pursuant to Section 4.1 out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any other purpose . (b) Promptly upon receipt of after the Final Allocation ScheduleEffective Time, the Exchange Agent shall mail and make available to each holder of record (other than Nestle or its Affiliates) of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Dreyer's Common Stock (the "CertificatesCERTIFICATES") (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment in exchange. All Parent Shares received by Company shareholders in respect exchange therefor or for effecting the exchange of the Retention Pool Shares shall, in addition to the forfeiture provisions Certificates for shares of the grant of such Retention Pool Shares, be subject to prohibitions on transfer for twelve (12) months as to one-third of such Retention Pool Shares, for twenty-four (24) months as to one-third of such Retention Pool and for thirty-six (36) months as to the remaining one-third of such Retention Pool Shares. All Parent Shares received by E*TRADE Group, Inc. ("E*TRADE") and its Subsidiaries, General Atlantic Partners, LLC, and entities controlled by it, and Softbank Corp., and entities controlled by it, including the portion thereof Class A Common Stock to be deposited held in the Special Escrow Fund established pursuant to Section 4.2(d), shall be, to the extent each such shareholder agrees thereto, subject to prohibitions on transfer for a three (3)-year period from the Effective Time (the "Strategic Investor Lock-up Period")book entry form. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to the Strategic Investor Lock-up Period are referred to as the "Strategic Investor Lock-up Shares." All Parent Shares received in the Merger by each Company shareholder listed on Schedule 4.2(b) shall be, to the extent such shareholder agrees thereto, subject to prohibitions on transfer until one hundred eighty (180) days following Promptly after the Effective Time, the Exchange Agent shall also mail to each holder of record of shares of Dreyer's Common Stock held in book entry form ("BOOK ENTRY SHARES") instructions for use in effecting the exchange of said Book Entry Shares for shares of Class A Common Stock. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to such 180-day restriction on transfer are referred to as the "Base Lock-up Shares." Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, or, in the case of Book Entry Shares, compliance with the instructions for the exchange thereof, the holder of such Certificates or Book Entry Shares shall be entitled to receive for the shares Common Shares represented by such Certificates the consideration applicable to such shares Dreyer's Merger Consideration, and the Certificates so surrendered or Book Entry Shares so exchanged shall forthwith be canceled. Upon such surrenderUntil so surrendered, the Exchange Agent shall issue to each holder of Retention Pool Shares three certificates for the Parent Shares issuable to such holderCertificates, one of which shall be for a number of Parent Shares and until exchanged as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twelve (12)-month prohibition on transfer, the second of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twenty-four (24) month prohibition on transfer and the other of which shall be for the remainder of such Parent Shares and shall be subject to a restrictive legend substantially in the form of Exhibit B providing for a thirty-six (36) month restriction on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Base Lock-up Shares a certificate for the Parent Shares issuable to such holder, which shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a one hundred eighty (180)-day prohibition on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Strategic Investor Lock-up Shares a certificate for the Parent Shares issuable to such holder, net of the number of shares to be deposited into the Special Escrow Fund described in contemplated by this Section 4.2(d2.12(b), subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a three(3)-year prohibition on transfer. (c) The transfer restrictions on the Strategic Investor Lock-up Shares and Base Lock-up Shares pursuant to Section 4.2(b) shall cease upon a Change in Control with respect to Parent. For purposes of this Section, a Change in Control with respect to Parent has the same meaning as a Change in Control of Wit in the Strategic Alliance Agreement dated as of the date of this Agreement between Parent and E*TRADE (the "Strategic Alliance Agreement"). Notwithstanding anything to the contrary, at any time upon written notice, affiliates of General Atlantic Partners 61, L.P., may designate other shares of Parent Stock (the "Substitute Shares") as being subject to the restrictions on transfer set forth herein, and upon receipt of such notice and deposit of such Substitute Book Entry Shares, Parent shall release an equal number of shares of Parent Stock (the "Released Shares") held by General Atlantic Partners 61, L.P., and Capital GAP Co- Investment Partners II, L.P. (as specified in such written notice) from the restrictions on transfer set forth herein. (d) Within five (5) business days after the Effective Time, the Parent Shares comprising the Special Escrow Fund (as defined below) shall be registered in the name of, and deposited with an escrow agent selected by Parent with the reasonable consent of the Company (the "Special Escrow Fund Agent"), such deposit (together with interest and other income thereon) to constitute the special escrow fund (the "Special Escrow Fund") and to be governed by the terms set forth in this Section 4.2(d) and an escrow agreement, in form and substance reasonably satisfactory to the parties, embodying the terms hereof, and except as the terms set forth in this Section 4.2(d) may differ, substantially in the form of the Escrow Agreement attached as Exhibit H. The Special Escrow Fund shall consist of twenty-five percent (25%) of the Strategic Investor Lock-up Shares (the "Special Escrow Shares"). One thirty-sixth of the Special Escrow Shares shall be released from the Special Escrow Fund on the last business day of each calendar month following the month in which the Effective Time occurs; provided, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to E*TRADE and a non-assumption of the Strategic Alliance Agreement by the acquiring or successor entity, all Special Escrow Shares then remaining in the Special Escrow Fund shall be surrendered to Parent for cancellation; and provided further, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to Wit, all Special Escrow Shares then remaining in the Special Escrow Fund shall be released to the Company shareholders that originally contributed such shares to the Special Escrow Fund. Any Parent Shares released from the Special Escrow Fund shall continue to bear the legend on prohibition of transfer pursuant to Section 4.2(b). (e) Until surrendered, such Certificates shall represent solely the right to receive the consideration applicable to such ShareDreyer's Merger Consideration. No dividends or other distributions that are declared after the Effective Time on Parent Shares shares of Class A Common Stock and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares shares of Class A Common Stock until such Persons surrender their Certificates representing or comply with the right to receive procedures for exchanging Book Entry Shares. After such Parent Shares are surrendered in appropriate form. Upon such surrendersurrender or compliance, as the case may be, there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions having a record date after the Effective Time and a payment date prior to the time shares of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares Class A Common Stock are issued any dividends or other distributions on such Parent Shares shares of Class A Common Stock which shall have a record date after the Effective Time and prior to such surrender and a payment date after such surrender, such payment shall be made on such payment date. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If any certificate Certificate representing Parent Shares shares of Class A Common Stock is to be issued or cash payment in lieu of fractional share interests is to be made to a Person name other than the one that in whose name which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any applicable transfer or other similar taxesTaxes required by reason of the issuance of certificates for such shares of Class A Common Stock in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that any such tax Tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Parent Shares or dividends thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent Shares, delivered to a public official when and if required by applicable law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares shares of Class A Common Stock held by it from time to time hereunder, except that the Exchange Agent it shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares shares of Class A Common Stock for the account of the Persons entitled to the dividends or distributions. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to indemnify Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificatethereto. (fc) Any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund (as hereinafter defined in Section 4.3) which remains unclaimed by the former stockholders holders of the Company Dreyer's Common Stock for six (6) months after the Effective Time shall be delivered to ParentNew Dreyer's, upon demand of ParentNew Dreyer's, and any former stockholders holders of the Company Dreyer's Common Stock shall thereafter look only to Parent New Dreyer's for payment of their claim for the consideration Dreyer's Merger Consideration for the Sharesshares of Dreyer's Common Stock. If, including after the Effective Time, Certificates or unexchanged Book Entry Shares representing shares of Dreyer's Common Stock outstanding prior to the Effective Time are presented to New Dreyer's, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article II. (d) Notwithstanding anything to the contrary in this Agreement to the fullest extent permitted by Law, none of the Exchange Agent, New Dreyer's or the Surviving Corporation shall be liable to a holder of shares of Dreyer's Common Stock for any cash amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law. (e) Either New Dreyer's or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Dreyer's Common Stock such amounts as New Dreyer's (or any Affiliate thereof) or the Exchange Agent are required to deduct and withhold with respect to the making of such payment under the Code or any provision of any applicable state, local or foreign Tax Law. To the extent that amounts are so withheld by New Dreyer's or the Exchange Agent, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the shares of Dreyer's Common Stock in lieu respect of fractional Parent Shareswhom such deduction and withholding were made by New Dreyer's. (f) TAX-FREE TREATMENT. The Parties intend that the Merger will meet the requirements of Section 368(a) of the Code and rules and regulations promulgated thereunder, that the Merger, the Exchange and the Contribution, taken together, will meet the requirements described in Section 351 of the Code and the rules and regulations promulgated thereunder, and that this Agreement shall constitute the plan of reorganization.

Exchange of Shares in the Merger. The manner of making exchange of shares in the Merger shall be as follows: (a) Promptly upon receipt of the Final Allocation Schedule, Parent shall make available to American Stock Transfer Company or another exchange agent selected by Parent (the "Exchange Agent") for the benefit of the holders of shares of Company Capital Stock, a sufficient number of certificates representing the aggregate number of Parent Shares issuable pursuant to Section 4.1 (the certificates representing such aggregate number of Parent Shares being hereinafter referred to as the "Stock Merger Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable written instructions, deliver the Parent Shares contemplated to be issued pursuant to Section 4.1 out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any other purpose purpose. (b) Promptly upon receipt of the Final Allocation Schedule, the Exchange Agent shall mail and make available to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Stock (the "Certificates") (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment in exchange. All Parent Shares received by Company shareholders in respect of the Retention Pool Shares shall, in addition to the forfeiture provisions of the grant of such Retention Pool Shares, be subject to prohibitions on transfer for twelve (12) months as to one-third of such Retention Pool Shares, for twenty-four (24) months as to one-third of such Retention Pool and for thirty-six (36) months as to the remaining one-third of such Retention Pool Shares. All Parent Shares received by E*TRADE Group, Inc. ("E*TRADE") and its Subsidiaries, General Atlantic Partners, LLC, and entities controlled by it, and Softbank SOFTBANK Corp., and entities controlled by it, including the portion thereof to be deposited in the Special Escrow Fund established pursuant to Section 4.2(d), shall be, to the extent each such shareholder agrees thereto, subject to prohibitions on transfer for a three (3)-year period from the Effective Time (the "Strategic Investor Lock-up Period"). The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to the Strategic Investor Lock-up Period are referred to as the "Strategic Investor Lock-up Shares." All Parent Shares received in the Merger by each Company shareholder listed on Schedule 4.2(b) shall be, to the extent such shareholder agrees thereto, subject to prohibitions on transfer until one hundred eighty (180) days following the Effective Time. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to such 180-day restriction on transfer are referred to as the "Base Lock-up Shares." Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, the holder of such Certificates shall be entitled to receive for the shares represented by such Certificates the consideration applicable to such shares and the Certificates so surrendered shall be canceled. Upon such surrender, the Exchange Agent shall issue to each holder of Retention Pool Shares three certificates for the Parent Shares issuable to such holder, one of which shall be for a number of Parent Shares as nearly as practicable to one-one- third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twelve (12)-month 12)- month prohibition on transfer, the second of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twenty-four (24) month prohibition on transfer and the other of which shall be for the remainder of such Parent Shares and shall be subject to a restrictive legend substantially in the form of Exhibit B providing for a thirty-six (36) month restriction on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Base Lock-up Shares a certificate for the Parent Shares issuable to such holder, which shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a one hundred eighty (180)-day prohibition on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Strategic Investor Lock-up Shares a certificate for the Parent Shares issuable to such holder, net of the number of shares to be deposited into the Special Escrow Fund described in Section 4.2(d), subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a three(3)-year prohibition on transfer. (c) The transfer restrictions on the Strategic Investor Lock-up Shares and Base Lock-up Shares pursuant to Section 4.2(b) shall cease upon a Change in Control with respect to Parent. For purposes of this Section, a Change in Control with respect to Parent has the same meaning as a Change in Control of Wit in the Strategic Alliance Agreement dated as of the date of this Agreement between Parent and E*TRADE (the "Strategic Alliance Agreement"). Notwithstanding anything to the contrary, at any time upon written notice, affiliates of General Atlantic Partners 61, L.P., may designate other shares of Parent Stock (the "Substitute Shares") as being subject to the restrictions on transfer set forth herein, and upon receipt of such notice and deposit of such Substitute Shares, Parent shall release an equal number of shares of Parent Stock (the "Released Shares") held by General Atlantic Partners 61, L.P., and Capital GAP Co- Investment Partners II, L.P. (as specified in such written notice) from the restrictions on transfer set forth herein. (d) Within five (5) business days after the Effective Time, the Parent Shares comprising the Special Escrow Fund (as defined below) shall be registered in the name of, and deposited with an escrow agent selected by Parent with the reasonable consent of the Company (the "Special Escrow Fund Agent"), such deposit (together with interest and other income thereon) to constitute the special escrow fund (the "Special Escrow Fund") and to be governed by the terms set forth in this Section 4.2(d) and an escrow agreement, in form and substance reasonably satisfactory to the parties, embodying the terms hereof, and except as the terms set forth in this Section 4.2(d) may differ, substantially in the form of the Escrow Agreement attached as Exhibit H. The Special Escrow Fund shall consist of twenty-five percent (25%) of the Strategic Investor Lock-up Shares (the "Special Escrow Shares"). One thirty-sixth of the Special Escrow Shares shall be released from the Special Escrow Fund on the last business day of each calendar month following the month in which the Effective Time occurs; provided, however, that in the event of a Change in Control (as defined in the -------- ------- Strategic Alliance Agreement) with respect to E*TRADE and a non-assumption of the Strategic Alliance Agreement by the acquiring or successor entity, all Special Escrow Shares then remaining in the Special Escrow Fund shall be surrendered to Parent for cancellation; and provided further, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to Wit, all Special Escrow Shares then remaining in the Special Escrow Fund shall be released to the Company shareholders that originally contributed such shares to the Special Escrow Fund. Any Parent Shares released from the Special Escrow Fund shall continue to bear the legend on prohibition of transfer pursuant to Section 4.2(b). (e) Until surrendered, such Certificates shall represent solely the right to receive the consideration applicable to such Share. No dividends or other distributions that are declared after the Effective Time on Parent Shares and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares until Certificates representing the right to receive such Parent Shares are surrendered in appropriate form. Upon such surrender, there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions having a record date after the Effective Time and a payment date prior to the time of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions on such Parent Shares which shall have a record date after the Effective Time and prior to such surrender and a payment date after such surrender. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If any certificate representing Parent Shares is to be issued or cash payment in lieu of fractional share interests is to be made to a Person other than the one in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any applicable transfer or other similar taxes, or shall establish to the satisfaction of the Exchange Agent that any such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Parent Shares or dividends thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent Shares, delivered to a public official when and if required by applicable law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares held by it from time to time hereunder, except that the Exchange Agent shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares for the account of the Persons entitled to the dividends or distributions. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to indemnify Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificate. (f) Any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund (as hereinafter defined in Section 4.3) which remains unclaimed by the former stockholders of the Company for six (6) months after the Effective Time shall be delivered to Parent, upon demand of Parent, and any former stockholders of the Company shall thereafter look only to Parent for payment of their claim for the consideration for the Shares, including any cash in lieu of fractional Parent Shares.

Exchange of Shares in the Merger. The manner of making exchange of shares in the Merger shall be as follows: (a) Promptly upon receipt of the Final Allocation Schedule, Parent shall make available to American Stock Transfer Company or another exchange agent selected by Parent (the "Exchange Agent") for the benefit of the holders of shares of Company Capital Stock, a sufficient number of certificates representing the aggregate number of Parent Shares issuable pursuant to Section 4.1 (the certificates representing such aggregate number of Parent Shares being hereinafter referred to as the "Stock Merger Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable written instructions, deliver the Parent Shares contemplated to be issued pursuant to Section 4.1 out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any other purpose purpose. (b) Promptly upon receipt of the Final Allocation Schedule, the Exchange Agent shall mail and make available to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Stock (the "Certificates") (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment in exchange. All Parent Shares received by Company shareholders in respect of the Retention Pool Shares shall, in addition to the forfeiture provisions of the grant of such Retention Pool Shares, be subject to prohibitions on transfer for twelve (12) months as to one-third of such Retention Pool Shares, for twenty-four (24) months as to one-third of such Retention Pool and for thirty-six (36) months as to the remaining one-third of such Retention Pool Shares. All Parent Shares received by E*TRADE Group, Inc. ("E*TRADE") and its Subsidiaries, General Atlantic Partners, LLC, and entities controlled by it, and Softbank Corp., and entities controlled by it, including the portion thereof to be deposited in the Special Escrow Fund established pursuant to Section 4.2(d), shall be, to the extent each such shareholder agrees thereto, subject to prohibitions on transfer for a three (3)-year period from the Effective Time (the "Strategic Investor Lock-up Period"). The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to the Strategic Investor Lock-up Period are referred to as the "Strategic Investor Lock-up Shares." All Parent Shares received in the Merger by each Company shareholder listed on Schedule 4.2(b) shall be, to the extent such shareholder agrees thereto, subject to prohibitions on transfer until one hundred eighty (180) days following the Effective Time. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to such 180-day restriction on transfer are referred to as the "Base Lock-up Shares." Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, the holder of such Certificates shall be entitled to receive for the shares represented by such Certificates the consideration applicable to such shares and the Certificates so surrendered shall be canceled. Upon such surrender, the Exchange Agent shall issue to each holder of Retention Pool Shares three certificates for the Parent Shares issuable to such holder, one of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twelve (12)-month prohibition on transfer, the second of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twenty-four (24) month prohibition on transfer and the other of which shall be for the remainder of such Parent Shares and shall be subject to a restrictive legend substantially in the form of Exhibit B providing for a thirty-six (36) month restriction on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Base Lock-up Shares a certificate for the Parent Shares issuable to such holder, which shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a one hundred eighty (180)-day prohibition on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Strategic Investor Lock-up Shares a certificate for the Parent Shares issuable to such holder, net of the number of shares to be deposited into the Special Escrow Fund described in Section 4.2(d), subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a three(3)-year prohibition on transfer. (c) The transfer restrictions on the Strategic Investor Lock-up Shares and Base Lock-up Shares pursuant to Section 4.2(b) shall cease upon a Change in Control with respect to Parent. For purposes of this Section, a Change in Control with respect to Parent has the same meaning as a Change in Control of Wit in the Strategic Alliance Agreement dated as of the date of this Agreement between Parent and E*TRADE (the "Strategic Alliance Agreement"). Notwithstanding anything to the contrary, at any time upon written notice, affiliates of General Atlantic Partners 61, L.P., may designate other shares of Parent Stock (the "Substitute Shares") as being subject to the restrictions on transfer set forth herein, and upon receipt of such notice and deposit of such Substitute Shares, Parent shall release an equal number of shares of Parent Stock (the "Released Shares") held by General Atlantic Partners 61, L.P., and Capital GAP Co- Co-Investment Partners II, L.P. (as specified in such written notice) from the restrictions on transfer set forth herein. (d) Within five (5) business days after the Effective Time, the Parent Shares comprising the Special Escrow Fund (as defined below) shall be registered in the name of, and deposited with an escrow agent selected by Parent with the reasonable consent of the Company (the "Special Escrow Fund Agent"), such deposit (together with interest and other income thereon) to constitute the special escrow fund (the "Special Escrow Fund") and to be governed by the terms set forth in this Section 4.2(d) and an escrow agreement, in form and substance reasonably satisfactory to the parties, embodying the terms hereof, and except as the terms set forth in this Section 4.2(d) may differ, substantially in the form of the Escrow Agreement attached as Exhibit H. The Special Escrow Fund shall consist of twenty-five percent (25%) of the Strategic Investor Lock-up Shares (the "Special Escrow Shares"). One thirty-sixth of the Special Escrow Shares shall be released from the Special Escrow Fund on the last business day of each calendar month following the month in which the Effective Time occurs; providedPROVIDED, howeverHOWEVER, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to E*TRADE and a non-assumption of the Strategic Alliance Agreement by the acquiring or successor entity, all Special Escrow Shares then remaining in the Special Escrow Fund shall be surrendered to Parent for cancellation; and provided further, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to Wit, all Special Escrow Shares then remaining in the Special Escrow Fund shall be released to the Company shareholders that originally contributed such shares to the Special Escrow Fund. Any Parent Shares released from the Special Escrow Fund shall continue to bear the legend on prohibition of transfer pursuant to Section 4.2(b). (e) Until surrendered, such Certificates shall represent solely the right to receive the consideration applicable to such Share. No dividends or other distributions that are declared after the Effective Time on Parent Shares and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares until Certificates representing the right to receive such Parent Shares are surrendered in appropriate form. Upon such surrender, there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions having a record date after the Effective Time and a payment date prior to the time of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions on such Parent Shares which shall have a record date after the Effective Time and prior to such surrender and a payment date after such surrender. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If any certificate representing Parent Shares is to be issued or cash payment in lieu of fractional share interests is to be made to a Person other than the one in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any applicable transfer or other similar taxes, or shall establish to the satisfaction of the Exchange Agent that any such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Parent Shares or dividends thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent Shares, delivered to a public official when and if required by applicable law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares held by it from time to time hereunder, except that the Exchange Agent shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares for the account of the Persons entitled to the dividends or distributions. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to indemnify Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificate. (f) Any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund (as hereinafter defined in Section 4.3) which remains unclaimed by the former stockholders of the Company for six (6) months after the Effective Time shall be delivered to Parent, upon demand of Parent, and any former stockholders of the Company shall thereafter look only to Parent for payment of their claim for the consideration for the Shares, including any cash in lieu of fractional Parent Shares.

Exchange of Shares in the Merger. The manner of making exchange of shares in the Merger shall be as follows: (a) Promptly upon receipt of At the Final Allocation ScheduleEffective Time, Parent Newco shall make available to American Stock Transfer Company or another an exchange agent selected by Parent Newco and reasonably acceptable to Transferor (the "Exchange AgentEXCHANGE AGENT") ), for the benefit of those Persons who immediately prior to the Effective Time were the holders of shares of Company Capital Empire Common Stock or Empire Preferred Stock, a sufficient number of certificates representing shares of Newco Common Stock or Newco Preferred Stock, as the case may be, required to effect the delivery of the aggregate number of Parent Shares issuable Empire Merger Consideration required to be issued pursuant to Section 4.1 2.10(a) (the certificates representing shares of Newco Common Stock or Newco Preferred Stock comprising such aggregate number of Parent Shares Empire Merger Consideration being hereinafter referred to as the "Stock Merger Exchange FundEXCHANGE FUND"). The Exchange Agent shall, pursuant to irrevocable written instructions, deliver the Parent Shares contemplated to be issued pursuant to Section 4.1 out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any other purpose . (b) Promptly upon receipt of after the Final Allocation ScheduleEffective Time, the Exchange Agent shall mail and make available to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Empire Common Stock or Empire Preferred Stock (the "CertificatesCERTIFICATES") (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment in exchange. All Parent Shares received by Company shareholders in respect exchange therefor or for effecting the exchange of Certificates for shares of Newco Common Stock or Newco Preferred Stock, as the Retention Pool Shares shall, in addition to the forfeiture provisions of the grant of such Retention Pool Shares, be subject to prohibitions on transfer for twelve (12) months as to one-third of such Retention Pool Shares, for twenty-four (24) months as to one-third of such Retention Pool and for thirty-six (36) months as to the remaining one-third of such Retention Pool Shares. All Parent Shares received by E*TRADE Group, Inc. ("E*TRADE") and its Subsidiaries, General Atlantic Partners, LLC, and entities controlled by it, and Softbank Corp., and entities controlled by it, including the portion thereof to be deposited in the Special Escrow Fund established pursuant to Section 4.2(d), shall case may be, to the extent each such shareholder agrees thereto, subject to prohibitions on transfer for a three (3)-year period from the Effective Time (the "Strategic Investor Lock-up Period")be held in book entry form. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to the Strategic Investor Lock-up Period are referred to as the "Strategic Investor Lock-up Shares." All Parent Shares received in the Merger by each Company shareholder listed on Schedule 4.2(b) shall be, to the extent such shareholder agrees thereto, subject to prohibitions on transfer until one hundred eighty (180) days following Promptly after the Effective Time. The Company , the Exchange Agent shall also mail to each holder of record of shares of Empire Common Stock and Empire Preferred Stock held in book entry form ("BOOK ENTRY SHARES") instructions for use its reasonable best efforts to obtain in effecting the consent exchange of the shareholders to the restrictions described in the preceding sentence. Parent said Book Entry Shares subject to such 180-day restriction on transfer are referred to for shares of Newco Common Stock or Newco Preferred Stock, as the "Base Lock-up Shares." case may be. Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, or, in the case of Book Entry Shares, compliance with the instructions for the exchange thereof, the holder of such Certificates or Book Entry Shares shall be entitled to receive for the shares Empire Common Stock or Empire Preferred Stock, as the case may be, represented by such Certificates the consideration applicable to such shares Empire Merger Consideration, and the Certificates so surrendered or Book Entry Shares so exchanged shall forthwith be canceled. Upon such surrenderUntil so surrendered, the Exchange Agent shall issue to each holder of Retention Pool Shares three certificates for the Parent Shares issuable to such holderCertificates, one of which shall be for a number of Parent Shares and until exchanged as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twelve (12)-month prohibition on transfer, the second of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twenty-four (24) month prohibition on transfer and the other of which shall be for the remainder of such Parent Shares and shall be subject to a restrictive legend substantially in the form of Exhibit B providing for a thirty-six (36) month restriction on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Base Lock-up Shares a certificate for the Parent Shares issuable to such holder, which shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a one hundred eighty (180)-day prohibition on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Strategic Investor Lock-up Shares a certificate for the Parent Shares issuable to such holder, net of the number of shares to be deposited into the Special Escrow Fund described in contemplated by this Section 4.2(d2.13(b), subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a three(3)-year prohibition on transfer. (c) The transfer restrictions on the Strategic Investor Lock-up Shares and Base Lock-up Shares pursuant to Section 4.2(b) shall cease upon a Change in Control with respect to Parent. For purposes of this Section, a Change in Control with respect to Parent has the same meaning as a Change in Control of Wit in the Strategic Alliance Agreement dated as of the date of this Agreement between Parent and E*TRADE (the "Strategic Alliance Agreement"). Notwithstanding anything to the contrary, at any time upon written notice, affiliates of General Atlantic Partners 61, L.P., may designate other shares of Parent Stock (the "Substitute Shares") as being subject to the restrictions on transfer set forth herein, and upon receipt of such notice and deposit of such Substitute Book Entry Shares, Parent shall release an equal number of shares of Parent Stock (the "Released Shares") held by General Atlantic Partners 61, L.P., and Capital GAP Co- Investment Partners II, L.P. (as specified in such written notice) from the restrictions on transfer set forth herein. (d) Within five (5) business days after the Effective Time, the Parent Shares comprising the Special Escrow Fund (as defined below) shall be registered in the name of, and deposited with an escrow agent selected by Parent with the reasonable consent of the Company (the "Special Escrow Fund Agent"), such deposit (together with interest and other income thereon) to constitute the special escrow fund (the "Special Escrow Fund") and to be governed by the terms set forth in this Section 4.2(d) and an escrow agreement, in form and substance reasonably satisfactory to the parties, embodying the terms hereof, and except as the terms set forth in this Section 4.2(d) may differ, substantially in the form of the Escrow Agreement attached as Exhibit H. The Special Escrow Fund shall consist of twenty-five percent (25%) of the Strategic Investor Lock-up Shares (the "Special Escrow Shares"). One thirty-sixth of the Special Escrow Shares shall be released from the Special Escrow Fund on the last business day of each calendar month following the month in which the Effective Time occurs; provided, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to E*TRADE and a non-assumption of the Strategic Alliance Agreement by the acquiring or successor entity, all Special Escrow Shares then remaining in the Special Escrow Fund shall be surrendered to Parent for cancellation; and provided further, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to Wit, all Special Escrow Shares then remaining in the Special Escrow Fund shall be released to the Company shareholders that originally contributed such shares to the Special Escrow Fund. Any Parent Shares released from the Special Escrow Fund shall continue to bear the legend on prohibition of transfer pursuant to Section 4.2(b). (e) Until surrendered, such Certificates shall represent solely the right to receive the consideration applicable to such ShareEmpire Merger Consideration. No dividends or other distributions that are declared after the Effective Time on Parent Shares shares of Newco Common Stock or Newco Preferred Stock and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares shares of Newco Common Stock or Newco Preferred Stock, as the case may be, until such Persons surrender their Certificates representing or comply with the right to receive procedures for exchanging Book Entry Shares. After such Parent Shares are surrendered in appropriate form. Upon such surrendersurrender or compliance, as the case may be, there shall be paid to the Person in whose name the Parent Shares are issued any dividends shares of Newco Common Stock or other distributions having a record date after the Effective Time and a payment date prior to the time of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares Newco Preferred Stock are issued any dividends or other distributions on such Parent Shares shares of Newco Common Stock or Newco Preferred Stock, as the case may be, which shall have a record date after the Effective Time and but prior to such surrender and a provided that the payment date occurs after such surrender, and, in such event, such payment shall be made on such payment date. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If any certificate Certificate representing Parent Shares shares of Newco Common Stock or Newco Preferred Stock is to be issued or cash payment in lieu of fractional share interests is to be made to a Person name other than the one that in whose name which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any applicable transfer or other similar taxesTaxes required by reason of the issuance of certificates for such shares of Newco Common Stock or Newco Preferred Stock, as the case may be, in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that any such tax Tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Parent Shares or dividends thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent Shares, delivered to a public official when and if required by applicable law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares shares of Newco Common Stock and Newco Preferred Stock held by it from time to time hereunder, except that the Exchange Agent it shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares shares of Newco Common Stock and Newco Preferred Stock for the account of the Persons entitled thereto. If, after the Effective Time, Certificates or unexchanged Book Entry Shares representing shares of Empire Common Stock or Empire Preferred Stock outstanding prior to the dividends or distributions. If any Certificate Effective Time are presented to Newco, they shall have been lostbe cancelled and exchanged for the consideration provided for, stolen or destroyed, Parent mayand in accordance with the procedures set forth, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to indemnify Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificatethis Article II. (fc) Any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund (as hereinafter defined in Section 4.3) which remains unclaimed by the former stockholders holders of Empire Common Stock or Empire Preferred Stock, as the Company case may be, for six (6) months after the Effective Time shall be delivered to ParentNewco, upon demand of ParentNewco, and any former stockholders holders of the Company Empire Common Stock and Empire Preferred Stock shall thereafter look only to Parent Newco for payment of their claim for the consideration Empire Merger Consideration for the Sharesshares of Empire Common Stock and Empire Preferred Stock. (d) Notwithstanding anything to the contrary in this Agreement to the fullest extent permitted by Law, including none of the Exchange Agent, Newco or the Surviving Corporation shall be liable to a holder of shares of Empire Common Stock or Empire Preferred Stock for any cash amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law. (e) Newco and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Empire Common Stock or Empire Preferred Stock such amounts as Newco (or any Affiliate thereof) or the Exchange Agent are required to deduct and withhold with respect to the making of such payment under the Code or any provision of any applicable state, local or foreign Tax Law. To the extent that amounts are so withheld by Newco or the Exchange Agent, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the shares of Empire Common Stock or Empire Preferred Stock, as the case may be, in lieu respect of fractional Parent Shareswhom such deduction and withholding were made by Newco. (f) Newco agrees that from and after the Effective Time, it will assume and perform any obligations of Empire with respect to registration of securities under Federal or state securities laws, listing obligations and related obligations that Empire had immediately prior to the Effective Time to holders of Empire Common Stock or securities, options, warrants or instruments convertible, exchangeable or exercisable for Empire Common Stock as if Newco were Empire and as if those obligations were with respect to Newco Common Stock or securities, options, warrants or instruments convertible, exchangeable or exercisable for Newco's common stock. Empire represents and warrants to Transferor that such obligations will not conflict with or prevent the consummation of the Registration Rights Agreement, and Empire and Newco agree that they shall not enter into or become subject to any agreement that conflicts with or prevents the consummation of the Registration Rights Agreement.

Exchange of Shares in the Merger. The manner of making exchange of shares Shares in the Merger shall be as follows: (a) Promptly upon receipt of At the Final Allocation ScheduleEffective Time, Parent shall make available to American Stock Transfer Company or another such other exchange agent as may be selected by Parent (the "Exchange Agent") for the benefit of the holders of shares of Company Capital StockShares, a sufficient number of certificates representing the aggregate number of Parent Shares issuable pursuant to Section 4.1 (the certificates representing such aggregate number of Parent Shares being hereinafter referred to as the "Stock Merger Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable written instructions, deliver the Parent Shares contemplated to be issued pursuant to Section 4.1 out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any other purpose purpose. (b) Promptly upon receipt of after the Final Allocation ScheduleEffective Time, the Exchange Agent shall mail and make available to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Stock Shares (the "Certificates") ) (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment in exchangetherefor. All Parent Shares received by Company shareholders in respect of the Retention Pool Shares shall, in addition to the forfeiture provisions of the grant of such Retention Pool Shares, be subject to prohibitions on transfer for twelve (12) months as to one-third of such Retention Pool Shares, for twenty-four (24) months as to one-third of such Retention Pool and for thirty-six (36) months as to the remaining one-third of such Retention Pool Shares. All Parent Shares received by E*TRADE Group, Inc. ("E*TRADE") and its Subsidiaries, General Atlantic Partners, LLC, and entities controlled by it, and Softbank Corp., and entities controlled by it, including the portion thereof to be deposited in the Special Escrow Fund established pursuant to Section 4.2(d), shall be, to the extent each such shareholder agrees thereto, subject to prohibitions on transfer for a three (3)-year period from the Effective Time (the "Strategic Investor Lock-up Period"). The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to the Strategic Investor Lock-up Period are referred to as the "Strategic Investor Lock-up Shares." All Parent Shares received in the Merger by each Company shareholder listed on Schedule 4.2(b) shall be, to the extent such shareholder agrees thereto, subject to prohibitions on transfer until one hundred eighty (180) days following the Effective Time. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to such 180-day restriction on transfer are referred to as the "Base Lock-up Shares." Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, the holder of such Certificates shall be entitled to receive for the shares Shares represented by such Certificates the consideration applicable to such shares Shares and the Certificates so surrendered shall forthwith be canceled. Upon such surrender, the Exchange Agent shall issue to each holder of Retention Pool Shares three certificates for the Parent Shares issuable to included in such holderconsideration, one (A) the first of which shall be for a number of Parent Shares as nearly equal as practicable to 34.84% of such Parent Shares and shall contain no restrictive legend other than as may be required by the Securities Act, (B) the second of which shall be for a number of Parent Shares as nearly equal as practicable to 32.58% of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit A hereto providing for a one-year restriction on transfer and (C) the third of which shall be for a number of Parent Shares as nearly equal as practicable to 32.58% of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B hereto providing for a twelve (12)-month prohibition on transfer, the second of which shall be for a number of Parent Shares as nearly as practicable to onetwo-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twenty-four (24) month prohibition on transfer and the other of which shall be for the remainder of such Parent Shares and shall be subject to a restrictive legend substantially in the form of Exhibit B providing for a thirty-six (36) month year restriction on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Base Lock-up Shares a certificate for the Parent Shares issuable to such holder, which shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a one hundred eighty (180)-day prohibition on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Strategic Investor Lock-up Shares a certificate for the Parent Shares issuable to such holder, net of the number of shares to be deposited into the Special Escrow Fund described in Section 4.2(d), subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a three(3)-year prohibition on transfer. (c) The transfer restrictions on the Strategic Investor Lock-up Shares and Base Lock-up Shares pursuant to Section 4.2(b) shall cease upon a Change in Control with respect to Parent. For purposes of this Section, a Change in Control with respect to Parent has the same meaning as a Change in Control of Wit in the Strategic Alliance Agreement dated as of the date of this Agreement between Parent and E*TRADE (the "Strategic Alliance Agreement"). Notwithstanding anything to the contrary, at any time upon written notice, affiliates of General Atlantic Partners 61, L.P., may designate other shares of Parent Stock (the "Substitute Shares") as being subject to the restrictions on transfer set forth herein, and upon receipt of such notice and deposit of such Substitute Shares, Parent shall release an equal number of shares of Parent Stock (the "Released Shares") held by General Atlantic Partners 61, L.P., and Capital GAP Co- Investment Partners II, L.P. (as specified in such written notice) from the restrictions on transfer set forth herein. (d) Within five (5) business days after the Effective Time, the Parent Shares comprising the Special Escrow Fund (as defined below) shall be registered in the name of, and deposited with an escrow agent selected by Parent with the reasonable consent of the Company (the "Special Escrow Fund Agent"), such deposit (together with interest and other income thereon) to constitute the special escrow fund (the "Special Escrow Fund") and to be governed by the terms set forth in this Section 4.2(d) and an escrow agreement, in form and substance reasonably satisfactory to the parties, embodying the terms hereof, and except as the terms set forth in this Section 4.2(d) may differ, substantially in the form of the Escrow Agreement attached as Exhibit H. The Special Escrow Fund shall consist of twenty-five percent (25%) of the Strategic Investor Lock-up Shares (the "Special Escrow Shares"). One thirty-sixth of the Special Escrow Shares shall be released from the Special Escrow Fund on the last business day of each calendar month following the month in which the Effective Time occurs; provided, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to E*TRADE and a non-assumption of the Strategic Alliance Agreement by the acquiring or successor entity, all Special Escrow Shares then remaining in the Special Escrow Fund shall be surrendered to Parent for cancellation; and provided further, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to Wit, all Special Escrow Shares then remaining in the Special Escrow Fund shall be released to the Company shareholders that originally contributed such shares to the Special Escrow Fund. Any Parent Shares released from the Special Escrow Fund shall continue to bear the legend on prohibition of transfer pursuant to Section 4.2(b). (e) Until so surrendered, such Certificates shall represent solely the right to receive the consideration applicable to such Share. No dividends or other distributions that are declared after the Effective Time on Parent Shares and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares until Certificates representing the right to receive such Parent Shares are surrendered in appropriate form. Upon such surrender, there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions having a record date after the Effective Time and a payment date prior to the time of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions on such Parent Shares which shall have a record date after the Effective Time and prior to such surrender and a payment date after such surrender. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If any certificate representing Parent Shares is to be issued or cash payment in lieu of fractional share interests is to be made to a Person other than the one in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any applicable transfer or other similar taxes, or shall establish to the satisfaction of the Exchange Agent that any such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Parent Shares or dividends thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent Shares, delivered to a public official when and if required by applicable escheat law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares held by it from time to time hereunder, except that the Exchange Agent it shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares for the account of the Persons entitled to the dividends or distributions. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to indemnify Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificatethereto. (fc) Any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund (as hereinafter defined in Section 4.3) which remains unclaimed by the former stockholders of the Company SoundView for six (6) months after the Effective Time shall be delivered to Parent, upon demand of Parent, and any former stockholders of the Company SoundView shall thereafter look only to Parent for payment of their claim for the consideration for the Shares, including any cash in lieu of fractional Parent Shares.

Exchange of Shares in the Merger. The manner of making exchange of shares in the Merger shall be as follows: (a) Promptly upon receipt of At the Final Allocation ScheduleEffective Time, Parent New Dreyer's shall make available to American Stock Transfer Company or another an exchange agent selected by Parent New Dreyer's (the "Exchange Agent") ), for the benefit of those Persons who immediately prior to the Effective Time were the holders of shares of Company Capital StockDreyer's Common Stock (other than the Nestle Shares), a sufficient number of certificates representing shares of Class A Common Stock required to effect the delivery of the aggregate number of Parent Shares issuable Dreyer's Merger Consideration required to be issued pursuant to Section 4.1 2.11(a) (the certificates representing shares of Class A Common Stock comprising such aggregate number of Parent Shares Dreyer's Merger Consideration being hereinafter referred to as the "Stock Merger Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable written instructions, deliver the Parent Shares contemplated to be issued pursuant to Section 4.1 out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any other purpose . (b) Promptly upon receipt of after the Final Allocation ScheduleEffective Time, the Exchange Agent shall mail and make available to each holder of record (other than Nestle or its Affiliates) of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Dreyer's Common Stock (the "Certificates") (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment in exchange. All Parent Shares received by Company shareholders in respect exchange therefor or for effecting the exchange of the Retention Pool Shares shall, in addition to the forfeiture provisions Certificates for shares of the grant of such Retention Pool Shares, be subject to prohibitions on transfer for twelve (12) months as to one-third of such Retention Pool Shares, for twenty-four (24) months as to one-third of such Retention Pool and for thirty-six (36) months as to the remaining one-third of such Retention Pool Shares. All Parent Shares received by E*TRADE Group, Inc. ("E*TRADE") and its Subsidiaries, General Atlantic Partners, LLC, and entities controlled by it, and Softbank Corp., and entities controlled by it, including the portion thereof Class A Common Stock to be deposited held in the Special Escrow Fund established pursuant to Section 4.2(d), shall be, to the extent each such shareholder agrees thereto, subject to prohibitions on transfer for a three (3)-year period from the Effective Time (the "Strategic Investor Lock-up Period")book entry form. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to the Strategic Investor Lock-up Period are referred to as the "Strategic Investor Lock-up Shares." All Parent Shares received in the Merger by each Company shareholder listed on Schedule 4.2(b) shall be, to the extent such shareholder agrees thereto, subject to prohibitions on transfer until one hundred eighty (180) days following Promptly after the Effective Time, the Exchange Agent shall also mail to each holder of record of shares of Dreyer's Common Stock held in book entry form ("Book Entry Shares") instructions for use in effecting the exchange of said Book Entry Shares for shares of Class A Common Stock. The Company shall use its reasonable best efforts to obtain the consent of the shareholders to the restrictions described in the preceding sentence. Parent Shares subject to such 180-day restriction on transfer are referred to as the "Base Lock-up Shares." Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, or, in the case of Book Entry Shares, compliance with the instructions for the exchange thereof, the holder of such Certificates or Book Entry Shares shall be entitled to receive for the shares Common Shares represented by such Certificates the consideration applicable to such shares Dreyer's Merger Consideration, and the Certificates so surrendered or Book Entry Shares so exchanged shall forthwith be canceled. Upon such surrenderUntil so surrendered, the Exchange Agent shall issue to each holder of Retention Pool Shares three certificates for the Parent Shares issuable to such holderCertificates, one of which shall be for a number of Parent Shares and until exchanged as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twelve (12)-month prohibition on transfer, the second of which shall be for a number of Parent Shares as nearly as practicable to one-third of such Parent Shares and shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a twenty-four (24) month prohibition on transfer and the other of which shall be for the remainder of such Parent Shares and shall be subject to a restrictive legend substantially in the form of Exhibit B providing for a thirty-six (36) month restriction on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Base Lock-up Shares a certificate for the Parent Shares issuable to such holder, which shall be subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a one hundred eighty (180)-day prohibition on transfer. Upon such surrender, the Exchange Agent shall issue to each holder entitled to receive Strategic Investor Lock-up Shares a certificate for the Parent Shares issuable to such holder, net of the number of shares to be deposited into the Special Escrow Fund described in contemplated by this Section 4.2(d2.12(b), subject to a restrictive legend substantially in the form set forth in Exhibit B providing for a three(3)-year prohibition on transfer. (c) The transfer restrictions on the Strategic Investor Lock-up Shares and Base Lock-up Shares pursuant to Section 4.2(b) shall cease upon a Change in Control with respect to Parent. For purposes of this Section, a Change in Control with respect to Parent has the same meaning as a Change in Control of Wit in the Strategic Alliance Agreement dated as of the date of this Agreement between Parent and E*TRADE (the "Strategic Alliance Agreement"). Notwithstanding anything to the contrary, at any time upon written notice, affiliates of General Atlantic Partners 61, L.P., may designate other shares of Parent Stock (the "Substitute Shares") as being subject to the restrictions on transfer set forth herein, and upon receipt of such notice and deposit of such Substitute Book Entry Shares, Parent shall release an equal number of shares of Parent Stock (the "Released Shares") held by General Atlantic Partners 61, L.P., and Capital GAP Co- Investment Partners II, L.P. (as specified in such written notice) from the restrictions on transfer set forth herein. (d) Within five (5) business days after the Effective Time, the Parent Shares comprising the Special Escrow Fund (as defined below) shall be registered in the name of, and deposited with an escrow agent selected by Parent with the reasonable consent of the Company (the "Special Escrow Fund Agent"), such deposit (together with interest and other income thereon) to constitute the special escrow fund (the "Special Escrow Fund") and to be governed by the terms set forth in this Section 4.2(d) and an escrow agreement, in form and substance reasonably satisfactory to the parties, embodying the terms hereof, and except as the terms set forth in this Section 4.2(d) may differ, substantially in the form of the Escrow Agreement attached as Exhibit H. The Special Escrow Fund shall consist of twenty-five percent (25%) of the Strategic Investor Lock-up Shares (the "Special Escrow Shares"). One thirty-sixth of the Special Escrow Shares shall be released from the Special Escrow Fund on the last business day of each calendar month following the month in which the Effective Time occurs; provided, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to E*TRADE and a non-assumption of the Strategic Alliance Agreement by the acquiring or successor entity, all Special Escrow Shares then remaining in the Special Escrow Fund shall be surrendered to Parent for cancellation; and provided further, however, that in the event of a Change in Control (as defined in the Strategic Alliance Agreement) with respect to Wit, all Special Escrow Shares then remaining in the Special Escrow Fund shall be released to the Company shareholders that originally contributed such shares to the Special Escrow Fund. Any Parent Shares released from the Special Escrow Fund shall continue to bear the legend on prohibition of transfer pursuant to Section 4.2(b). (e) Until surrendered, such Certificates shall represent solely the right to receive the consideration applicable to such ShareDreyer's Merger Consideration. No dividends or other distributions that are declared after the Effective Time on Parent Shares shares of Class A Common Stock and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares shares of Class A Common Stock until such Persons surrender their Certificates representing or comply with the right to receive procedures for exchanging Book Entry Shares. After such Parent Shares are surrendered in appropriate form. Upon such surrendersurrender or compliance, as the case may be, there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions having a record date after the Effective Time and a payment date prior to the time shares of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares Class A Common Stock are issued any dividends or other distributions on such Parent Shares shares of Class A Common Stock which shall have a record date after the Effective Time and prior to such surrender and a payment date after such surrender, such payment shall be made on such payment date. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If any certificate Certificate representing Parent Shares shares of Class A Common Stock is to be issued or cash payment in lieu of fractional share interests is to be made to a Person name other than the one that in whose name which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any applicable transfer or other similar taxesTaxes required by reason of the issuance of certificates for such shares of Class A Common Stock in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that any such tax Tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Parent Shares or dividends thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent Shares, delivered to a public official when and if required by applicable law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares shares of Class A Common Stock held by it from time to time hereunder, except that the Exchange Agent it shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares shares of Class A Common Stock for the account of the Persons entitled to the dividends or distributions. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to indemnify Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificatethereto. (fc) Any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund (as hereinafter defined in Section 4.3) which remains unclaimed by the former stockholders holders of the Company Dreyer's Common Stock for six (6) months after the Effective Time shall be delivered to ParentNew Dreyer's, upon demand of ParentNew Dreyer's, and any former stockholders holders of the Company Dreyer's Common Stock shall thereafter look only to Parent New Dreyer's for payment of their claim for the consideration Dreyer's Merger Consideration for the Sharesshares of Dreyer's Common Stock. If, including after the Effective Time, Certificates or unexchanged Book Entry Shares representing shares of Dreyer's Common Stock outstanding prior to the Effective Time are presented to New Dreyer's, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article II. (d) Notwithstanding anything to the contrary in this Agreement to the fullest extent permitted by Law, none of the Exchange Agent, New Dreyer's or the Surviving Corporation shall be liable to a holder of shares of Dreyer's Common Stock for any cash amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law. (e) Either New Dreyer's or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Dreyer's Common Stock such amounts as New Dreyer's (or any Affiliate thereof) or the Exchange Agent are required to deduct and withhold with respect to the making of such payment under the Code or any provision of any applicable state, local or foreign Tax Law. To the extent that amounts are so withheld by New Dreyer's or the Exchange Agent, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the shares of Dreyer's Common Stock in lieu respect of fractional Parent Shareswhom such deduction and withholding were made by New Dreyer's. (f) Tax-Free Treatment. The Parties intend that the Merger will meet the requirements of Section 368(a) of the Code and rules and regulations promulgated thereunder, that the Merger, the Exchange and the Contribution, taken together, will meet the requirements described in Section 351 of the Code and the rules and regulations promulgated thereunder, and that this Agreement shall constitute the plan of reorganization.