Common use of Shares of Company Clause in Contracts

Shares of Company. Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by a Company Stockholder who (i) has not voted such shares in favor of the Merger, (ii) shall have delivered a written demand for appraisal of such shares in the manner provided for in the DGCL and (iii) shall not have effectively withdrawn or lost such right to appraisal as of the Effective Time (the "DISSENTING SHARES"), shall be entitled to such rights (but only such rights) as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such Dissenting Shares pursuant to Section 262 of the DGCL shall receive payment therefor from the Surviving Corporation in accordance with the DGCL; provided, however, that (A) if any such holder of Dissenting Shares shall have failed to establish such holder's entitlement to appraisal rights as provided in Section 262 of the DGCL, (B) if any holder of Dissenting Shares shall have effectively withdrawn his demand for appraisal of such Dissenting Shares or lost his right to appraisal and payment for his Dissenting Shares under Section 262 of the DGCL or (C) if neither any holder of Dissenting Shares nor the Surviving Corporation shall have filed a petition demanding a determination of the value of all Dissenting Shares within the time provided for the filing of such petition in Section 262 of the DGCL, such holder shall forfeit the right to appraisal of such Dissenting Shares, and the holder of each such Dissenting Share shall be deemed to have been converted into, as of the Effective Time, the right to receive shares of Parent Common Stock pursuant to Section 2.1 hereof, without any interest thereon, upon surrender, in the manner provided in Section 2.3 hereof, of the Certificate or Certificates that formerly evidenced such shares.

Shares of Company. Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by a Company Stockholder any holder who (i) has not voted such shares in favor of the Merger, (ii) shall have delivered a written approval of this Agreement and the Merger and is entitled to demand for and properly demands appraisal of such shares pursuant to, and who complies in all respects with, the manner provided for in the DGCL and (iii) shall not have effectively withdrawn or lost such right to appraisal as provisions of the Effective Time (the "DISSENTING SHARES"), shall be entitled to such rights (but only such rights) as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such Dissenting Shares pursuant to Section 262 of the DGCL ("Section 262") shall not be converted into the right to receive the Merger Consideration payable pursuant to Section 2.1(b), but instead such holder shall be entitled to payment therefor from of the Surviving Corporation fair value of such shares (the "Appraisal Shares") in accordance with the DGCL; providedprovisions of Section 262. At the Effective Time, howeverall Appraisal Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, that (A) and each holder of Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Appraisal Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262 or if a court of Dissenting Shares competent jurisdiction shall have failed determine that such holder is not entitled to establish the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder's entitlement to appraisal rights as provided in Section 262 of the DGCL, (B) if any holder of Dissenting Shares shall have effectively withdrawn his demand for appraisal of such Dissenting Shares or lost his right to appraisal and payment for his Dissenting Appraisal Shares under Section 262 of the DGCL or (C) if neither any holder of Dissenting Shares nor the Surviving Corporation shall have filed a petition demanding a determination of the value of all Dissenting Shares within the time provided for the filing cease and each of such petition in Section 262 of the DGCL, such holder shall forfeit the right to appraisal of such Dissenting Shares, and the holder of each such Dissenting Share Appraisal Shares shall be deemed to have been converted at the Effective Time into, as and shall have become, the right to receive the Cash Consideration with respect to such shares (without regard to Section 2.1(b)(y)). The Company shall deliver prompt notice to Parent of any demands for appraisal of any shares of Company Common Stock, any withdrawal of such a demand for appraisal and any other instrument delivered to the Company pursuant to Section 262, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the right to receive shares of Parent Common Stock pursuant to Section 2.1 hereofCompany shall not, without the prior written consent of Parent, make any interest thereonpayment with respect to, upon surrenderor settle or offer to settle, in the manner provided in Section 2.3 hereofany such demands, or agree to do any of the Certificate or Certificates that formerly evidenced such sharesforegoing.

Shares of Company. Common Stock and Company Preferred Stock that are issued have not voted for adoption of this Agreement and outstanding immediately prior with respect to which appraisal has been properly demanded in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into the right to receive the Common Stock Merger Consideration or Preferred Stock Merger Consideration, as applicable, at or after the Effective Time unless and that are held by a Company Stockholder who (i) has not voted until the holder of such shares (a "Dissenting Stockholder") withdraws such demand for such appraisal (in favor accordance with Section 262(k) of the MergerDGCL) or becomes ineligible for such appraisal, (ii) but shall have delivered be converted into the right to receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to the DGCL. If a written holder of Dissenting Shares withdraws such demand for appraisal (in accordance with Section 262(k) of the DGCL) or becomes ineligible for such shares in the manner provided for in the DGCL and (iii) shall not have effectively withdrawn or lost such right to appraisal appraisal, then, as of the Effective Time (or the "DISSENTING SHARES")occurrence of such event, shall be entitled to such rights (but only such rights) as are granted by Section 262 whichever last occurs, each of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such Dissenting Shares pursuant to Section 262 of the DGCL shall receive payment therefor from the Surviving Corporation in accordance with the DGCL; provided, however, that (A) if any such holder of Dissenting Shares shall have failed to establish such holder's entitlement to appraisal rights as provided in Section 262 of the DGCL, (B) if any holder of Dissenting Shares shall have effectively withdrawn his demand for appraisal of such Dissenting Shares or lost his right will cease to appraisal and payment for his Dissenting Shares under Section 262 of the DGCL or (C) if neither any holder of Dissenting Shares nor the Surviving Corporation shall have filed be a petition demanding a determination of the value of all Dissenting Shares within the time provided for the filing of such petition in Section 262 of the DGCL, such holder shall forfeit the right to appraisal of such Dissenting Shares, and the holder of each such Dissenting Share shall and will be deemed to have been converted into, as of the Effective Time, Time into and represent the right to receive shares of Parent the Common Stock pursuant to Section 2.1 hereofMerger Consideration or the applicable Preferred Stock Merger Consideration, as appropriate, without any interest thereon. The Company shall give Parent and Merger Subsidiary prompt notice of any demands for appraisal, upon surrenderattempted withdrawals of such demands and any other instruments received by the Company relating to stockholders' rights of appraisal, in and, prior to the manner provided in Section 2.3 hereofEffective Time, of Parent and Merger Subsidiary shall have the Certificate or Certificates that formerly evidenced right to participate in, and after the Effective Time the Surviving Company shall have the right to direct, all negotiations and proceedings with respect to such sharesdemands except as required by applicable law.

Shares of Company. Common Stock that are issued and outstanding immediately prior to the First Effective Time and that are held by a Company Stockholder holder who (i) has not voted such shares in favor of the Merger, (ii) shall have delivered a written demand Mergers or consented thereto in writing and who has demanded appraisal for appraisal of such shares in the manner provided for in the DGCL and (iii) shall not have effectively withdrawn or lost such right to appraisal as of the Effective Time (the "DISSENTING SHARES"), shall be entitled to such rights (but only such rights) as are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes entitled to payment for such Dissenting Shares pursuant to Section 262 of the DGCL shall receive payment therefor from the Surviving Corporation in accordance with the DGCL (collectively, the “Dissenting Shares”) shall not be converted into a right to receive Parent Common Stock, unless such holder fails to perfect, withdraws or otherwise loses such holder’s right to appraisal under the DGCL; provided. If, howeverafter the First Merger Effective Time, that such holder fails to perfect, withdraws or otherwise loses such holder’s right to appraisal, each such share shall be treated as if it has been converted as of the First Merger Effective Time into a right to receive Parent Common Stock as set forth in Section 3.1(a)(iii)(1). The Company shall give Parent (i) prompt notice of (A) if any such holder of Dissenting Shares shall have failed demands for appraisal pursuant to establish such holder's entitlement to appraisal rights as provided in Section 262 of the DGCLDGCL received by the Company, (B) if any holder of Dissenting Shares shall have effectively withdrawn his demand for appraisal withdrawals of such Dissenting Shares or lost his right to appraisal demands, and payment for his Dissenting Shares under Section 262 of the DGCL or (C) if neither any other instruments served pursuant to the DGCL and received by the Company in connection with such demands and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal under the DGCL prior to the First Merger Effective Time. The Company shall not, except with the prior written consent of Parent, which shall not be unreasonably withheld, conditioned or delayed, or as otherwise required by any applicable law, make any payment with respect to any such demands for appraisal or offer to settle or settle any such demands and shall not distribute any portion of the Common Stock Merger Consideration to any holder of Dissenting Shares nor the Surviving Corporation shall have filed a petition demanding a determination of the value of all Dissenting Shares within the time provided for the filing of such petition in Section 262 of the DGCL, such holder shall forfeit the right to that has not lost its appraisal of such Dissenting Shares, and the holder of each such Dissenting Share shall be deemed to have been converted into, as of the Effective Time, the right to receive shares of Parent Common Stock pursuant to Section 2.1 hereof, without any interest thereon, upon surrender, in the manner provided in Section 2.3 hereof, of the Certificate or Certificates that formerly evidenced such sharesrights.