instructions on how to submit a proxy by telephone, over the
internet or by mail. When available, please review carefully the proxy statement/prospectus.
Please do not send documents or certificates representing your
ownership of Kitara common stock at this time. If the transactions contemplated by the merger agreement are consummated, we will notify you of the
procedures for exchanging your shares of Kitara common stock.
Appraisal Rights
Holders of Kitara common stock who object to the merger may elect
to pursue appraisal rights to receive the judicially determined fair value of their shares, but only if they comply with the procedures
required under Section 262 of the DGCL. In order to qualify for these rights, Kitara stockholders must (1) not vote in favor of adoption of the merger
agreement, (2) make a written demand for appraisal prior to the taking of the vote on the adoption of the merger agreement at the Special Meeting and
(3) otherwise comply with the Delaware law procedures for exercising appraisal rights. Failure to follow the procedures set forth in Section 262 of the
DGCL will result in the loss of appraisal rights.
Under Section 262 of the DGCL, where a merger agreement relating
to a proposed merger is to be submitted for adoption at a meeting of stockholders, as in the case of the Special Meeting, the corporation, not less
than 20 days prior to such meeting, must notify each of its stockholders who was a stockholder on the record date for notice of such meeting with
respect to shares for which appraisal rights are available, that appraisal rights are so available, and must include in each such notice a copy of
Section 262 of the DGCL. This notice constitutes such notice to the holders of Kitara common stock. A copy of Section 262 of the DGCL is attached to
this notice as Annex B.
Additional Information
In connection with the transactions contemplated by the merger
agreement, Kitara has filed a preliminary proxy statement/prospectus on Schedule 14A with the Securities and Exchange Commission (the SEC).
The preliminary proxy statement/prospectus also is included in a registration statement on Form S-4 filed by New Holdco. Investors are urged to read
the preliminary proxy statement/prospectus and definitive proxy statement/prospectus (including all amendments and supplements thereto), when it
becomes available, before they make any voting or investment decision with respect to the transactions contemplated by the merger agreement, because
the proxy statement/prospectus will contain important information. Investors may obtain free copies of the preliminary proxy statement/prospectus and
definitive proxy statement/prospectus, when it becomes available, as well as other filings containing information about Kitara, New Holdco and Future
Ads LLC, without charge, at the SECs Internet site (www.sec.gov). These documents may also be obtained for free, when they become available, by
directing a request to: Kitara Merger Corp., 525 Washington Blvd, Suite 2620, Jersey City, New Jersey 07310, Attn: Corporate
Secretary.
Kitara and its directors and executive officers and other members
of management and employees may be deemed, under SEC rules, to be participants in the solicitation of proxies from Kitaras stockholders with
respect to the transactions contemplated by the merger agreement. Information regarding Kitaras directors and executive officers is available in
Kitaras annual report on Form 10-K for the fiscal year ended December 31, 2013, filed with the SEC on March 31, 2014. Additional information
regarding the interests of such potential participants in the transactions contemplated by the merger agreement will be included in the proxy
statement/prospectus.
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Jersey City, New Jersey
December 8, 2014
Annex A
The Transactions
Kitara Media Corp. (Kitara) has entered into (i) an
Agreement and Plan of Reorganization, dated as of October 10, 2014 (the merger agreement), with Kitara Holdco Corp. (New
Holdco), a wholly-owned subsidiary of Kitara, and Kitara Merger Sub, Inc. (Merger Sub), a wholly-owned subsidiary of New Holdco, and
(ii) a Unit Exchange Agreement, dated as of October 10, 2014 (the exchange agreement), with New Holdco, Future Ads LLC (Future
Ads), and the holders of the outstanding limited liability company interests of Future Ads (the members). If the transactions
contemplated by the merger agreement and the exchange agreement are consummated, New Holdco will become the new publicly traded company and Kitara and
Future Ads will become wholly-owned subsidiaries of New Holdco.
Future Ads is a diversified online advertising company. Future
Ads generates revenues through the sale of advertising to advertisers who want to reach consumers in the United States and internationally to promote
their products and services. Future Ads delivers advertising through its real-time, bid-based, online advertising platform called Trafficvance. This
technology platform allows advertisers to target audiences and deliver text, display and video based advertising. The Future Ads business and its
Trafficvance platform provide advertisers with an effective way to serve, manage and maximize the performance of their online advertising purchasing.
Future Ads offers both a self-serve platform and a managed services option that give advertisers diverse solutions to reach online audiences and
acquire customers. Future Ads has over 1,400 advertiser customers and its platform has the capacity to serve approximately 26 million ads per
day.
The Merger and Exchange
Pursuant to the merger agreement, Merger Sub will merge with and
into Kitara (the merger), with Kitara surviving the merger as a wholly-owned subsidiary of New Holdco. In the merger, each outstanding
share of Kitara common stock will be converted into one share of New Holdco common stock.
Immediately following the merger and as part of a single
integrated transaction, pursuant to the exchange agreement, the members of Future Ads will exchange (the exchange, and together with the
merger, the transactions) all of the outstanding Future Ads limited liability company interests for (i) $80,000,000 in cash, (ii) shares of
New Holdco common stock that represent 53% of the fully diluted shares of New Holdco common stock outstanding as of the closing of the transactions
(the closing), (iii) the right to receive performance-based earn out payments that would enable the members to receive up to an
additional $40,000,000 in cash or stock consideration based on Future Ads reaching certain EBITDA levels during the 2015 to 2018 fiscal years, (iv) on
or prior to June 30, 2016, $10,000,000 in cash and/or shares of New Holdco common stock (the deferred consideration), and (v) immediately
after the payment of certain fees to Highbridge (as defined below) on or about the fourth anniversary of the closing, $6,000,000 in cash. The
consideration payable to the members is subject to a post-closing adjustment based on the working capital and indebtedness of Future Ads and the
working capital of Kitara.
Furthermore, after the closing, New Holdco will reimburse the
members for all transaction expenses paid by Future Ads, its subsidiaries or the members on or before the closing, and will assume all of their unpaid
transaction expenses as of such date.
The merger and the exchange are conditioned on each other and
neither will be consummated if the other cannot be consummated. Immediately following the closing, New Holdco will be the new publicly traded company
and Kitara and Future Ads will be wholly-owned subsidiaries of New Holdco. Immediately following the closing, of the shares of New Holdco common stock
to be outstanding, we expect that the former Kitara stockholders and certain of the former members of Future Ads will own 95,884,241 shares (or 38.3%)
and 154,213,092 shares (or 61.7%), respectively. Additionally, we expect there to be an aggregate of 40,870,765 shares of New Holdco common stock reserved for
issuance under stock options and warrants assumed by New Holdco and awards that may be granted under the 2014 Plan.
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Key Terms of Transaction Agreements
The following sets forth certain additional key terms of the
transaction agreements:
Exchange
Agreement
Representations and
Warranties
The exchange agreement contains certain representations and
warranties of Kitara and New Holdco, on the one hand, and the members and Future Ads, on the other hand. The representations and warranties of the
parties will not survive the closing, and thereafter no party will be under any liability whatsoever with respect to the representations and warranties
other than in the case of fraud.
No Solicitation
Under the exchange agreement, Kitara and the members of Future
Ads may not take, and will cause their respective affiliates, representatives and other agents and their respective subsidiaries to refrain from
taking, any action to, directly or indirectly, among other things, approve, authorize, encourage, initiate, solicit or engage in discussion or
negotiations with, or provide any information to, any person other than the parties to the exchange agreement, or their respective affiliates and
representatives, concerning any alternate transaction (as defined in the exchange agreement).
New Stock Plan
Pursuant to the exchange agreement, New Holdco and Kitara have
created the New Holdco 2014 Long-Term Incentive Plan (the 2014 Plan), which will provide for nine percent of the fully diluted outstanding
shares of New Holdco common stock as of the closing to be reserved for issuance to directors, officers, employees, consultants and other service
providers of New Holdco and its subsidiaries pursuant to the plan.
Subsequent Equity
Financings
During the period commencing with the closing and ending on June
30, 2016 (or earlier if paid in shares as elected by the members), New Holdco and its affiliates shall use their reasonable best efforts to complete
equity financings that will raise sufficient net proceeds to pay the $10,000,000 of deferred consideration to the members of Future
Ads.
Conditions
As set forth in the exchange agreement, the consummation of the
exchange depends on a number of conditions being satisfied or waived. These conditions include, but are not limited to:
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no governmental authority having enacted, issued, promulgated,
enforced or entered any law or order (whether temporary, preliminary or permanent) that is then in effect and that enjoins, restrains, makes illegal or
otherwise prohibits the consummation of the exchange; |
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the merger having been completed or all of the conditions
necessary for such completion having been satisfied and the merger being consummated contemporaneously with the exchange; and |
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the debt financing having been consummated. |
Kitaras and New Holdcos obligation and the obligation
of the members of Future Ads to consummate the exchange are subject to certain additional customary conditions.
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Termination of the Exchange
Agreement
The exchange agreement provides for certain customary termination
rights for Kitara and the members, including by Kitara or by the members acting jointly, if the conditions to such partys obligation to close the
exchange cannot be fulfilled prior to January 31, 2015, if the exchange has not closed by such date, or if the debt financing has not been consummated
by such date, in each case subject to certain conditions. The exchange agreement also may be terminated by mutual written consent of Kitara and the
members acting jointly.
Merger
Agreement
Existing Stock
Options and Warrants
At the effective time of the merger, New Holdco will assume and
continue Kitaras existing 2012 Long-Term Incentive Equity Plan (the 2012 Plan) and its 2013 Long-Term Incentive Equity Plan (the
2013 Plan) and all outstanding stock options thereunder. The plans and options will apply to New Holdco and the shares of New Holdco common
stock in the same manner as they previously applied to Kitara and the shares of Kitara common stock. In addition, New Holdco will assume the other
outstanding options and warrants of Kitara, in each case in accordance with the terms of the respective securities.
Conditions
As set forth in the merger agreement, the consummation of the
merger depends on a number of customary conditions being satisfied or waived. In addition, the merger will only be consummated if the transactions
contemplated by the exchange agreement are also consummated.
Termination
As set forth in the merger agreement, the merger agreement may be
terminated and the merger abandoned at any time prior to the effective time of the merger if (a) the exchange agreement has been terminated in
accordance with its terms or (b) with the consent of Future Ads, the Kitara board of directors determines that the consummation of the merger would
not, for any reason, be advisable and in the best interests of Kitara and its stockholders.
Financing the Proposed Transaction
The financing will consist of a new revolving credit facility in
the amount of $15,000,000 (not more than $7,500,000 of which will be funded at the closing) and term loan credit facility in the amount of $81,000,000
from funds managed or advised by Highbridge Principal Strategies LLC (Highbridge). Proceeds from the financing will be used to facilitate
the merger and the exchange and specifically to: (i) pay the cash consideration to the members of Future Ads, (ii) refinance certain existing
indebtedness of Kitara and its subsidiaries, (iii) pay fees and expenses related to the transactions (including the financing for the transactions) and
(iv) fund the ongoing working capital requirements of New Holdco and its subsidiaries. On or about the fourth anniversary of the closing, New Holdco
will pay a fee of $12,500,000 to Highbridge in cash or, if sufficient funds are not available, New Holdco common stock.
Pursuant to the exchange agreement, in the event that any portion
of the debt financing contemplated by the debt commitment letter becomes unavailable on substantially the terms and conditions contemplated in the debt
commitment letter, Kitara will notify Future Ads and use its commercially reasonable efforts to arrange alternative financing from alternative sources
on financial terms no less favorable than those in the debt commitment letter.
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Ancillary Agreements
Voting
Agreement
In connection with the exchange agreement, Kitara entered into a
voting agreement with certain existing Kitara stockholders, including Kitaras officers and directors (the supporting parties), who
hold a majority of the currently outstanding shares of Kitara common stock. Under the voting agreement, the supporting parties have agreed, among other
things, to vote their shares of Kitara common stock (including any shares acquired after the date of the agreement) in favor of (i) the adoption of the
merger agreement and approval of the merger and any other matters necessary for consummation of the merger and any other transactions contemplated in
the merger agreement, including the Charter Amendment Proposals (as defined in the notice) and the Adjournment Proposal (as defined in the notice), and
(ii) the approval of the 2014 Plan. Since the supporting parties own more than 50% of the outstanding common stock of Kitara, the supporting parties
may approve the Merger Proposal (as defined in the notice), the Charter Amendment Proposals, the Equity Plan Proposal (as defined in the notice) and
the Adjournment Proposal without the affirmative vote of any other Kitara stockholder.
Lockup
Agreements
Pursuant to the exchange agreement, New Holdco has entered into
lockup agreements with certain of the members of Future Ads and with certain of Kitaras existing stockholders, including its officers and
directors, restricting the transfer of shares of New Holdco common stock by such persons for 12 months after the closing, subject to certain
exceptions, including upon registration of their shares under certain circumstances. Because the members are entering into the registration rights
agreement and certain of the Kitara stockholders subject to the lockup agreements have existing registration rights, the effective lockup period may be
substantially shorter than 12 months.
Registration Rights
Agreement
At the closing, New Holdco will enter into a registration rights
agreement with respect to the shares of New Holdco common stock issued in the exchange, providing the holders of the such shares with certain
demand and piggyback registration rights.
Stockholders
Agreement
At the closing, New Holdco will enter into a stockholders
agreement with the members of Future Ads who are receiving shares of New Holdco common stock in the exchange. Pursuant to the stockholders
agreement, among other things, these members of Future Ads initially will have the right to designate for appointment or nomination, as applicable, a
majority of the directors comprising the New Holdco board of directors, and such directors will have consent rights with respect to specified actions
proposed to be taken by New Holdco.
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Annex B
Section 262 of the Delaware General Corporation
Law
§ 262 Appraisal rights
(a) Any stockholder of a corporation of this State who
holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously
holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has
neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an
appraisal by the Court of Chancery of the fair value of the stockholders shares of stock under the circumstances described in subsections (b) and
(c) of this section. As used in this section, the word stockholder means a holder of record of stock in a corporation; the words
stock and share mean and include what is ordinarily meant by those words; and the words depository receipt mean a
receipt or other instrument issued by a depository representing an interest in 1 or more shares, or fractions thereof, solely of stock of a
corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares
of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to § 251 (other than a merger
effected pursuant to § 251(g) of this title and, subject to paragraph (b)(3) of this section, § 251(h) of this title), § 252, §
254, § 255, § 256, § 257, § 258, § 263 or § 264 of this title:
(1) Provided, however, that,
except as expressly provided in § 363(b) of this title, no appraisal rights under this section shall be available for the shares of any class or
series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders entitled to receive
notice of the meeting of stockholders to act upon the agreement of merger or consolidation, were either: (i) listed on a national securities exchange
or (ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as
provided in § 251(f) of this title.
(2) Notwithstanding
paragraph (b)(1) of this section, appraisal rights under this section shall be available for the shares of any class or series of stock of a
constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252,
254, 255, 256, 257, 258, 263 and 264 of this title to accept for such stock anything except:
a. Shares of stock of the
corporation surviving or resulting from such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any
other corporation, or depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts
at the effective date of the merger or consolidation will be either listed on a national securities exchange or held of record by more than 2,000
holders;
c. Cash in lieu of
fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a. and b. of this section; or
d. Any combination of the
shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs
(b)(2)a., b. and c. of this section.
(3) In the event all of the
stock of a subsidiary Delaware corporation party to a merger effected under § 251(h), § 253 or § 267 of this title is not owned by the
parent immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation.
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(4) In the event of an
amendment to a corporations certificate of incorporation contemplated by § 363(a) of this title, appraisal rights shall be available as
contemplated by § 363(b) of this title, and the procedures of this section, including those set forth in subsections (d) and (e) of this section,
shall apply as nearly as practicable, with the word amendment substituted for the words merger or consolidation, and the word
corporation substituted for the words constituent corporation and/or surviving or resulting
corporation.
(c) Any corporation may provide in its certificate of
incorporation that appraisal rights under this section shall be available for the shares of any class or series of its stock as a result of an
amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or
substantially all of the assets of the corporation. If the certificate of incorporation contains such a provision, the procedures of this section,
including those set forth in subsections (d) and (e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as
follows:
(1) If a proposed merger or
consolidation for which appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the corporation,
not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of such meeting (or such
members who received notice in accordance with § 255(c) of this title) with respect to shares for which appraisal rights are available pursuant to
subsection (b) or (c) of this section that appraisal rights are available for any or all of the shares of the constituent corporations, and shall
include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title.
Each stockholder electing to demand the appraisal of such stockholders shares shall deliver to the corporation, before the taking of the vote on
the merger or consolidation, a written demand for appraisal of such stockholders shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholders shares.
A proxy or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must do so by a
separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting
corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or
consented to the merger or consolidation of the date that the merger or consolidation has become effective; or
(2) If the merger or
consolidation was approved pursuant to § 228, § 251(h), § 253, or § 267 of this title, then either a constituent corporation before
the effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify each of the holders
of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and
that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such
notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Such notice may,
and, if given on or after the effective date of the merger or consolidation, shall, also notify such stockholders of the effective date of the merger
or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of mailing of such notice or, in the case of a merger
approved pursuant to § 251(h) of this title, within the later of the consummation of the tender or exchange offer contemplated by § 251(h) of
this title and 20 days after the date of mailing of such notice, demand in writing from the surviving or resulting corporation the appraisal of such
holders shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of such holders shares. If such notice did not notify stockholders of the effective date of
the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or
consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of
the effective date of the merger or consolidation or (ii) the
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surviving or resulting corporation
shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is
sent more than 20 days following the sending of the first notice or, in the case of a merger approved pursuant to § 251(h) of this title, later
than the later of the consummation of the tender or exchange offer contemplated by § 251(h) of this title and 20 days following the sending of the
first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such
holders shares in accordance with this subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the
corporation that is required to give either notice that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. For purposes of determining the stockholders entitled to receive either notice, each constituent corporation may fix, in advance, a
record date that shall be not more than 10 days prior to the date the notice is given, provided, that if the notice is given on or after the effective
date of the merger or consolidation, the record date shall be such effective date. If no record date is fixed and the notice is given prior to the
effective date, the record date shall be the close of business on the day next preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the
merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) of this section hereof
and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of
the merger or consolidation, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party shall have the
right to withdraw such stockholders demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after
the effective date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) of this section
hereof, upon written request, shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement
setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have
been received and the aggregate number of holders of such shares. Such written statement shall be mailed to the stockholder within 10 days after such
stockholders written request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this
section, a person who is the beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in
such persons own name, file a petition or request from the corporation the statement described in this subsection.
(f) Upon the filing of any such petition by a
stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within 20 days after such service file in
the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who
have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting
corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by such a duly verified list.
The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or
certified mail to the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall
also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall be approved by the
Court, and the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall
determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The Court may require the stockholders
who have
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demanded an appraisal for their shares and who hold stock
represented by certificates to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal
proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder.
(h) After the Court determines the stockholders
entitled to an appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery, including any rules
specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of the shares exclusive of any element
of value arising from the accomplishment or expectation of the merger or consolidation, together with interest, if any, to be paid upon the amount
determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. Unless the Court in its
discretion determines otherwise for good cause shown, interest from the effective date of the merger through the date of payment of the judgment shall
be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during
the period between the effective date of the merger and the date of payment of the judgment. Upon application by the surviving or resulting corporation
or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior
to the final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or
resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholders certificates of stock to the Register in
Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to
appraisal rights under this section.
(i) The Court shall direct the payment of the fair
value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled thereto. Payment shall be
so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case of holders of shares represented by
certificates upon the surrender to the corporation of the certificates representing such stock. The Courts decree may be enforced as other
decrees in the Court of Chancery may be enforced, whether such surviving or resulting corporation be a corporation of this State or of any
state.
(j) The costs of the proceeding may be determined by
the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the Court may order all or a
portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable
attorneys fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an
appraisal.
(k) From and after the effective date of the merger or
consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall be entitled to vote such stock for
any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of
record at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be
filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver to the surviving or resulting corporation a
written withdrawal of such stockholders demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the
effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation,
then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall
be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just;
provided, however that this provision shall not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that
proceeding as a named party to withdraw such stockholders demand for appraisal and to accept the terms offered upon the merger or consolidation
within 60 days after the effective date of the merger or consolidation, as set forth in subsection (e) of this section.
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(l) The shares of the surviving or resulting
corporation to which the shares of such objecting stockholders would have been converted had they assented to the merger or consolidation shall have
the status of authorized and unissued shares of the surviving or resulting corporation.
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