Common use of Alternative Structure Clause in Contracts

Alternative Structure. If following the date of this Agreement all of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Company prior to the Closing) (x) alter or change the kind or amount of consideration to be issued to the holders of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposes.

Alternative Structure. If following (a) The Company shall use reasonable best efforts to cause any agreement, instrument or indenture with respect to indebtedness for borrowed money to which the Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party in connection with the foregoing or agree to amend any of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact. (b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement all of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure exercise of the its reasonable business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as discretion agrees to pursue such an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step mergeralternative structure, the “Second Merger”)parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure and provide for such other changes necessitated thereby; provided, however, that (i) such wholly-owned disregarded limited liability company failure of the parties to agree to an alternative structure shall become a party to, and shall become bound by, the terms not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement Agreement; and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and deliveredprovided, and (iii) further, that any action actions taken pursuant to this Section 1.1(b6.20(b) (A) shall not (unless consented to in writing by I) without the consent of the Company prior to the Closing) (x) and Parent, alter or change the kind amount, nature or amount mix of consideration to the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be issued capable of consummation without delay in relation to the holders of the Company’s capital stock or other securities as provided for structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact. (yc) otherwise cause any closing condition set forth In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment, the parties may agree (in Article VI each party’s reasonable business discretion) not to be capable consummate the Subsequent Merger. For the avoidance of being satisfied (unless duly waived by doubt, neither the party entitled to identification nor the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, implementation of an alternative structure under Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e6.20(b) above shall be a condition to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposesClosing.

Alternative Structure. If following Notwithstanding anything to the contrary contained in this Agreement, (A) at any time prior to the date of this Agreement all the definitive Proxy Statement is first mailed to the stockholders of the conditions set forth Company in Article VI have been satisfied connection with the Company Stockholders Meeting, or waived (except that B) or otherwise with the tax representation letters in prior written consent of the forms as set forth in Exhibit B-1 and called for in Section 5.14 canCompany (which shall not be delivered and the condition set forth in Section 6.1(e) has not been waivedunreasonably withheld or delayed), but the Closing could occur if the tax representation letters Parent, in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b))its sole discretion, Parent shall alter may elect to modify the structure of the business combination between Merger Sub and so as to provide that the Company shall merge with and into Parent (rather than Merger Sub), with Parent continuing as the surviving corporation of the Merger (the “Alternative Structure”); provided that (a) the consideration to be paid to the stockholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, or (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, (c) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, and (d) such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, impede or delay the consummation of the transactions contemplated by this Agreement. In the event that Parent elects to implement the Alternative Structure, the parties agree, by consummating a second-step merger in good faith, to prepare and execute an amendment to this Agreement to reflect the Alternative Structure and any necessary modifications to the terms of the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger, the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (and such second-step merger, the “Second Merger”terms impacted thereby); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Company prior to the Closing) (x) alter or change the kind or amount of consideration to be issued to the holders of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposes.

Alternative Structure. If following Notwithstanding anything to the date of this Agreement all of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided contrary contained in this Section 1.1(b))Agreement, Parent upon notice to MART not less than 10 business days prior to the Shareholders' Meeting, Kimco shall alter be entitled to revise the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded so as an entity to provide for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party tothe merger of Merger Sub into MART (with MART as the Surviving Entity), and shall become bound by, the terms of this Agreement and or (ii) the merger of another directly or indirectly, wholly-owned subsidiary of Kimco, other than Merger Sub, with MART (with either of MART or such subsidiary surviving). In addition, MART will take such other action as may be reasonably requested by Kimco to help reduce any adverse tax representation letters implications arising out of the transactions contemplated hereby, provided, that, nothing in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b10.15 shall (a) shall not subject the MART shareholders to adverse tax consequences, (unless consented to in writing by the Company prior to the Closingb) (x) alter or change the kind amount or amount form of consideration to be issued received by the MART shareholders, (c) alter to the holders detriment of the Company’s capital stock MART shareholders the benefits to be received by them hereunder, (d) jeopardize or materially delay or impede the receipt of any required regulatory or third Party approvals or consents or add any additional regulatory or third party approvals or consents relating to the consummation of the Merger, (e) impede or delay consummation of the Merger, or create any new condition to Closing, (f) reduce the obligations of any party hereunder including, but not limited to, Kimco's obligations to provide the Merger Consideration and perform its other securities as provided for in undertakings hereunder after the Effective Time or (g) adversely affect MART or the MART Subsidiaries or otherwise increase the obligations of MART or the MART Subsidiaries. The parties shall execute an appropriate amendment to this Agreement or (y) otherwise cause and any closing condition set forth in Article VI not related documents necessary to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereof). If reflect any such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposesrevised structure.

Alternative Structure. If following Notwithstanding anything to the contrary contained in this Agreement, (A) if (i) Realty Income uses reasonable best efforts to obtain the Realty Income Credit Agreement Amendment as promptly as practicable after the date hereof, and (ii) Realty Income has not obtained the Realty Income Credit Agreement Amendment by the date that is fifteen (15) Business Days prior to the earlier of the date of this Agreement all the VEREIT Stockholders Meeting and the Realty Income Stockholders Meeting, or (B) or otherwise with the consent of the conditions set forth in Article VI have been satisfied or waived VEREIT (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 canwhich shall not be delivered and the condition set forth in Section 6.1(e) has not been waivedunreasonably withheld or delayed), but the Closing could occur if the tax representation letters Realty Income, in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b))its sole discretion, Parent shall alter may elect to modify the structure of the business combination between Merger so as to provide that VEREIT shall merge into and Realty Income (rather than Merger Sub 1), with Realty Income continuing as the surviving corporation of the Merger (the “Alternative Structure”); provided that (a) the consideration to be paid to the stockholders of VEREIT is not thereby changed in nature or kind or reduced in amount as a result of such modification, (b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of Realty Income or VEREIT as a result of the Merger or payment or receipt of the Merger Consideration, or (2) the qualification and taxation of VEREIT as a REIT for federal income tax purposes for any period, and (c) other than the Company modification to the Realty Income Required Stockholders Vote to require a majority of the outstanding shares of Realty Income Common Stock as a result of the Alternative Structure, such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, impede or materially delay the consummation of the transactions contemplated by this Agreement. In the event that Realty Income elects to implement the Alternative Structure, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposesparties agree, in accordance with Delaware Lawgood faith, immediately following to prepare and execute an amendment to this Agreement to reflect the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party to, Alternative Structure and shall become bound by, any necessary modifications to the terms of this the Agreement and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Company prior give effect to the Closing) Alternative Structure (x) alter including all necessary or change the kind or amount of consideration to be issued appropriate changes to the holders definitions of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by Merger, the party entitled to Surviving Corporation, the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger Realty Income Required Stockholders Vote and the second-step merger described in this Section 1.1(bRealty Income Stock Issuance and such terms impacted thereby), taken together as one integrated transaction for U.S. federal income tax purposes.

Alternative Structure. If following (a) The parties agree that in the event issues arise that could reasonably be expected to prevent the parties from obtaining the Required Minority Equity Holder Approvals or the Required Regulatory Approvals with respect to any Acquired Company prior to the Non-Transferred Company Determination Date with respect to such Acquired Company (an “Alternative Structure Event”), Purchaser and Sellers, subject, in the case of Sellers, to the Minority Equity Holder Rights, and in all cases, to the avoidance of Initial Closing Legal Prohibitions or Subsequent Closing Legal Prohibitions, as applicable, shall continue to use best efforts, and proceed expeditiously and in good faith, to consummate the purchase, sale and other transactions contemplated hereunder with respect to each Acquired Company. Without limiting the generality of the foregoing, in the event of an Alternative Structure Event, the parties shall use best efforts, and proceed expeditiously and in good faith, to restructure the form of the transactions contemplated hereby in order to proceed with the substance of the transactions contemplated by this Agreement pursuant to such alternative structures and transactions which would have a materially improved chance of completion and which may be accomplished in a manner that preserves the allocation of benefits, opportunities, costs, responsibilities, liabilities and net economic benefit of the transactions contemplated hereby to Purchaser and Sellers (taking into account the effect of Taxes) and for consideration equal to the consideration allocated to the transactions pursuant to Section 2.2 of the Agreement. (b) In furtherance of the foregoing, an Acquired Company shall be deemed to be a “Section 6.29 Retained Company” upon the earliest to occur of (the “Section 6.29 Retained Company Determination Date”) (i) the date of this Agreement upon which Sellers provide written notice to Purchaser that Sellers have determined in good faith that, despite the parties’ compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition to closing set forth in Section 6.1(e7.1(b) has and (c) (in the case of the Initial Closing) or Section 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not been waivedreasonably likely to be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in the last sentence of Section 6.29(a), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters date upon which Sellers and Purchaser mutually agree that, despite each party’s compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the forms Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions to closing set forth in Exhibit B-2 shall be executed Section 7.1(b) and delivered, (c) (in the case of the Initial Closing) or Section 7.4(a)(ii) and (iii) any action taken pursuant (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably likely to be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in the last sentence of Section 6.29(a) and (iii) the Non-Transferred Company Determination Date, if the Initial Closing or Subsequent Closing, as the case may be, does not occur with respect to such Acquired Company because, despite each party’s compliance with all of the covenants and obligations contained in this Section 1.1(b) shall not (unless consented Agreement to in writing be performed and complied with by the Company it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, as of such date, (A) (x) alter one or change the kind or amount of consideration to be issued to the holders both of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition conditions to Closing set forth in Article VI not to be capable of being satisfied Sections 7.1(b) and (unless duly waived by the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiiic), with respect to an Initial Closing, or Section 4.1(b)(xviii7.4(a)(ii) and (iii), with respect to any Subsequent Closing, were not satisfied and (B) the parties were unable to agree upon alternative structures and transactions as contemplated in the last sentence of Section 5.14 6.29(a). (c) In the event that any Acquired Company becomes a Section 6.29 Retained Company, (i) the parties shall nevertheless be obligated to consummate the Initial Closing and Section 6.1(e) shall be to the Merger any Subsequent Closing and the second-step merger described in other transactions contemplated by this Agreement except with respect to any such Section 1.1(b6.29 Retained Company (or any Retained Company or ROFR Company), taken together as one integrated transaction for U.S. federal income tax purposes.(ii) the applicable Seller will retain and continue to hold and own its Seller Equity Interests or Holding Company Equity Interests relating to, and any Sellers Stockholder Debt with regard to, any such Section 6.29 Retained Company, (iii) the Sellers Equity Interests of any such

Alternative Structure. If following (a) Parent shall be empowered at any time prior to the date Effective Time, to change the method or structure of this Agreement all effecting the combination of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 Company and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”)Parent; provided, however, that no such change shall (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Company prior to the Closing) (x) alter or change the kind Merger Consideration or amount the number of consideration shares of the Parent Common Stock to be received by the Company’s stockholders in exchange for each share of the Company Common Stock, (ii) adversely affect the Tax treatment of the Company’s or Parent’s shareholders pursuant to this Agreement, (iii) adversely affect the Tax treatment of the Company pursuant to this Agreement or (iv) materially impede or delay the consummation of the transactions contemplated by this Agreement. The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with Section 9.2. (b) Notwithstanding anything to the contrary set forth herein, in the event the Preferred Stockholder Matter shall not have been approved by the Requisite Preferred Vote as of the business day prior to the Closing Date, then the parties agree that (i) the Merger shall be effected by the merger of a newly-formed subsidiary of Parent (“Merger Sub”) with and into the Company and the Company shall be the surviving corporation in such merger and continue its corporate existence under the laws of the State of Maryland as a subsidiary of Parent (the “Alternative Merger”), (ii) the Charter Amendment shall become effective and the Company shall file the Charter Amendment with the Department of Assessments and Taxation of the State of Maryland pursuant to Section 6.19 immediately prior to the effective time of the Alternative Merger, (iii) at the effective time of the Alternative Merger, the holders of Company Common Stock shall have the right to receive the Merger Consideration pursuant to Section 1.5, (iv) the Company Preferred Stock shall remain issued and outstanding at and after the effective time of the Alternative Merger, (v) each share of Common Stock of Merger Sub issued and outstanding immediately prior to the effective time of the Alternative Merger shall be converted into one share of the Company Common Stock and constitute the only outstanding shares of common stock of the Company after the effective time of the Alternative Merger, (vi) the Bank Merger will continue to be effected in accordance with Section 1.13, if so elected by Parent and (vii) the Company Equity Awards shall be cancelled and converted into the right to receive the Merger Consideration or assumed, as applicable, in accordance with Section 1.9 (collectively, items (i) to (vii), the “Alternative Structure”). In the event the parties effect the Alternative Structure, (A) the Company Preferred Stock shall not be converted into, and Parent shall not issue, the New Parent Preferred Stock pursuant to Section 1.6, (B) Parent shall not be required to deposit into the Exchange Fund New Parent Preferred Stock certificates or any cash in connection with the payment of dividends declared with respect to the New Parent Preferred Stock pursuant to Section 2.1 or effect the exchange procedures with respect to the Company Preferred Stock set forth in Section 2.2, and (C) Parent shall not be required to cause the New Parent Preferred Stock to be approved for listing on Nasdaq pursuant to Section 6.5. Intermediary shall have the right to assign this Agreement to Merger Sub in order to consummate the Alternative Merger. Parent, Intermediary and the Company shall use reasonable best efforts to take all corporate action and make all filings reasonably necessary or desirable to facilitate the Alternative Structure. Actions taken in connection with, and the consummation of the transactions contemplated by, the Alternative Structure shall not constitute a breach of any representations and warranties of the parties set forth in this Agreement. If the Alternative Structure is effected by the parties, then all references in this Agreement to the “Merger” shall mean the “Alternative Merger”. Parent may elect in its sole discretion to issue a guarantee to the holders of the Company’s capital stock or other securities as provided Company Preferred Stock that remains outstanding following the Alternative Merger for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable the payment of being satisfied (unless duly waived by dividends, the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger redemption price and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposesliquidation value of the Company Preferred Stock.

Alternative Structure. If following Notwithstanding anything to the date of contrary contained in this Agreement, Parent, in its sole discretion, may elect to modify this Agreement all so as to provide that the consummation of the conditions set forth transactions contemplated hereby shall be accomplished through a tender offer and merger structure in Article VI have been satisfied or waived accordance with DGCL Section 251(h) in lieu of the Merger (except the “Alternative Structure”); provided that (a) the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) Company Stockholder Approval has not been waived)obtained, but (b) the Closing could occur if consideration to be paid to the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure stockholders of the business combination between Merger Sub and Company is not reduced in amount as a result of such modification, (c) in no event shall Parent make any filings with the Company contemplated by this Agreement, , by consummating a secondSEC or other public announcement of such election prior to the No-step merger Shop Period Start Date (or the expiration of the Surviving Corporation into Go-Shop Extension (if any)) and shall not make any filing of a limited liability company wholly-owned by Schedule TO for five Business Days thereafter, (d) such Alternative Structure will not, and will not reasonably be expected, to impair the Financing and (e) such Alternative Structure will not, and will not reasonably be expected to, impede or delay the consummation of the Transactions from occurring on or prior to the Outside Date. In the event that Parent that is disregarded as an entity for federal tax purposeselects to implement the Alternative Structure, the parties agree, in accordance with Delaware Lawgood faith, immediately following to prepare and execute an amendment to this Agreement to reflect the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party to, Alternative Structure and shall become bound by, any necessary modifications to the terms of this the Agreement and to give effect to the Alternative Structure (ii) including all necessary or appropriate changes to the tax representation letters in definitions of the forms set forth in Exhibit B-2 shall be executed and deliveredMerger, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Surviving Corporation, the Company prior to the Closing) (x) alter or change the kind or amount of consideration to be issued to the holders of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereofStockholder Approval and such terms impacted thereby). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposes.

Alternative Structure. If following (a) The parties agree that in the event issues arise that could reasonably be expected to prevent the parties from obtaining the Required Minority Equity Holder Approvals or the Required Regulatory Approvals with respect to any Acquired Company prior to the Non-Transferred Company Determination Date with respect to such Acquired Company (an "ALTERNATIVE STRUCTURE EVENT"), Purchaser and Sellers, subject, in the case of Sellers, to the Minority Equity Holder Rights, and in all cases, to the avoidance of Initial Closing Legal Prohibitions or Subsequent Closing Legal Prohibitions, as applicable, shall continue to use best efforts, and proceed expeditiously and in good faith, to consummate the purchase, sale and other transactions contemplated hereunder with respect to each Acquired Company. Without limiting the generality of the foregoing, in the event of an Alternative Structure Event, the parties shall use best efforts, and proceed expeditiously and in good faith, to restructure the form of the transactions contemplated hereby in order to proceed with the substance of the transactions contemplated by this Agreement pursuant to such alternative structures and transactions which would have a materially improved chance of completion and which may be accomplished in a manner that preserves the allocation of benefits, opportunities, costs, responsibilities, liabilities and net economic benefit of the transactions contemplated hereby to Purchaser and Sellers (taking into account the effect of Taxes) and for consideration equal to the consideration allocated to the transactions pursuant to SECTION 2.2 of the Agreement. (b) In furtherance of the foregoing, an Acquired Company shall be deemed to be a "SECTION 6.29 RETAINED COMPANY" upon the earliest to occur of (the "SECTION 6.29 RETAINED COMPANY DETERMINATION DATE") (i) the date of this Agreement upon which Sellers provide written notice to Purchaser that Sellers have determined in good faith that, despite the parties' compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions to closing set forth in Article VI have been satisfied or waived SECTION 7.1(b) and (except that the tax representation letters c) (in the forms case of the Initial Closing) or SECTION 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably likely to be satisfied as set forth of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waivedlast sentence of SECTION 6.29(a), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters date upon which Sellers and Purchaser mutually agree that, despite each party's compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the forms Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions to closing set forth in Exhibit B-2 shall be executed SECTION 7.1(b) and delivered, (c) (in the case of the Initial Closing) or SECTION 7.4(a)(ii) and (iii) any action taken pursuant (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably likely to be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in the last sentence of SECTION 6.29(a) and (iii) the Non-Transferred Company Determination Date, if the Initial Closing or Subsequent Closing, as the case may be, does not occur with respect to such Acquired Company because, despite each party's compliance with all of the covenants and obligations contained in this Section 1.1(b) shall not (unless consented Agreement to in writing be performed and complied with by the Company it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, as of such date, (A) (x) alter one or change the kind or amount of consideration to be issued to the holders both of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition conditions to Closing set forth in Article VI not to be capable of being satisfied SECTIONS 7.1(b) and (unless duly waived by the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiiic), Section 4.1(b)(xviiiwith respect to an Initial Closing, or SECTION 7.4(a)(ii) and (iii), with respect to any Subsequent Closing, were not satisfied and (B) the parties were unable to agree upon alternative structures and transactions as contemplated in the last sentence of SECTION 6.29(a). (c) In the event that any Acquired Company becomes a Section 5.14 6.29 Retained Company, (i) the parties shall nevertheless be obligated to consummate the Initial Closing and Section 6.1(e) shall be to the Merger any Subsequent Closing and the second-step merger described in other transactions contemplated by this Agreement except with respect to any such Section 1.1(b6.29 Retained Company (or any Retained Company or ROFR Company), taken together as one integrated transaction for U.S. federal income tax purposes.(ii) the applicable Seller will retain and continue to hold and own its Seller Equity Interests or Holding Company Equity Interests relating to, and any Sellers Stockholder Debt with regard to, any such Section 6.29 Retained Company, (iii) the Sellers Equity Interests of any such

Alternative Structure. If following In the date of this event that, prior to the Closing, VSI reaches agreement with Netcall Technologies Ltd. ("Netcall") terminating that certain Software Distribution Agreement all dated July 4, 1996 between Netcall and VSI (the "Netcall Agreement") or modifying Section 6.7 of the conditions set forth Netcall Agreement to permit VSI to market software competitive with the Software (as defined in the Netcall Agreement), then in lieu of the formation of the Company and the Capital Contributions and share issuances contemplated in Sections 1.1, 1.2 and 1.3 above, Atio (PTY) shall make to VSI the capital contributions contemplated to be made by Atio (PTY) to the Company in Subparagraphs 1.2(a)(i) and (ii) above and VSI shall, in consideration thereof, issue to Atio International 2,000,000 common shares of the capital stock of VSI (which shares, when so issued, shall be duly and validly issued, fully paid and nonassessable). In such event, VSI shall be a party to the Shareholders Agreement (as defined in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered below) and the condition set forth License Agreement in Section 6.1(e) has not been waived), but lieu of the Closing could occur if Company and the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided other references in this Agreement to "the Company" shall be deemed to refer to VSI to the extent consistent with the provisions of this Section 1.1(b)), Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”); provided1.4. The parties acknowledge, however, that Atio (iPTY) such wholly-owned disregarded limited liability company shall become a party towould not make to VSI the capital contributions contemplated to be made by it herein, and Atio International would not accept shares in VSI as contemplated herein, if VSI continued to owe to Venturian the amounts evidenced by the Venturian Note. Accordingly, it shall become bound bybe a condition to the obligation of Atio (PTY) to contribute to VSI the amounts contemplated in this Section 1.4 that, prior thereto, Venturian make, as a Capital Contribution to VSI but in exchange for no additional shares of the terms capital stock or securities of this Agreement and VSI, Venturian's right to receive all amounts owing by VSI to Venturian as evidenced by the Venturian Note, other than any amounts advanced by Venturian to VSI after August 31, 1997 (ii) the tax representation letters in "Post-August Advances"). Promptly following the forms Closing, VSI shall repay to Venturian the Post-August Advances. If the transactions contemplated herein are consummated under the Alternative Structure set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by 1.4, the Company prior to parties shall, promptly following the Closing) (x) alter or , change the kind or amount name of consideration VSI to be issued to the holders of the Company’s capital stock or other securities as provided for Atio Corporation in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereof). If such second-step merger occursUSA, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposes.Inc.

Alternative Structure. If following Notwithstanding anything to the date of this Agreement all of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided contrary contained in this Section 1.1(b))Agreement, Parent upon notice to MART not less than 10 business days prior to the Shareholders’ Meeting, Kimco shall alter be entitled to Table of Contents revise the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded so as an entity to provide for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party tothe merger of Merger Sub into MART (with MART as the Surviving Entity), and shall become bound by, the terms of this Agreement and or (ii) the merger of another directly or indirectly, wholly-owned subsidiary of Kimco, other than Merger Sub, with MART (with either of MART or such subsidiary surviving). In addition, MART will take such other action as may be reasonably requested by Kimco to help reduce any adverse tax representation letters implications arising out of the transactions contemplated hereby, provided, that, nothing in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b10.15 shall (a) shall not subject the MART shareholders to adverse tax consequences, (unless consented to in writing by the Company prior to the Closingb) (x) alter or change the kind amount or amount form of consideration to be issued received by the MART shareholders, (c) alter to the holders detriment of the CompanyMART shareholders the benefits to be received by them hereunder, (d) jeopardize or materially delay or impede the receipt of any required regulatory or third Party approvals or consents or add any additional regulatory or third party approvals or consents relating to the consummation of the Merger, (e) impede or delay consummation of the Merger, or create any new condition to Closing, (f) reduce the obligations of any party hereunder including, but not limited to, Kimco’s capital stock obligations to provide the Merger Consideration and perform its other undertakings hereunder after the Effective Time or other securities as provided for in (g) adversely affect MART or the MART Subsidiaries or otherwise increase the obligations of MART or the MART Subsidiaries. The parties shall execute an appropriate amendment to this Agreement or (y) otherwise cause and any closing condition set forth in Article VI not related documents necessary to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereof). If reflect any such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposesrevised structure.

Alternative Structure. If following Notwithstanding anything to the date contrary contained in this Plan, subject to the final sentence of this Agreement Section (M), MSBC may, at its sole option, elect to either (a) form a separate subsidiary corporation and merge it into Ballston or Ballston into it such that MSBC shall be the sole shareholder of the surviving corporation, or (b) convert this Plan to an exchange of Ballston Common Stock for MSBC Common Stock, instead of a merger, on the same terms and conditions contained herein (except for such conversion); provided, however, that MSBC may not make such an election if it would result in failure to satisfy the condition set forth in either Section (M) or (P) of Article VI. In the event MSBC makes an election pursuant to the prior sentence, Ballston shall take all actions reasonably requested by MSBC (including without limitation using its best efforts to obtain any requisite corporate and stockholder approvals in connection therewith). In the event that MSBC makes an election pursuant to the first sentence of this Section (M), the parties hereto agree promptly to amend this Plan as MSBC may reasonably deem necessary or appropriate. If MSBC reasonably determines that the Merger cannot be effected pursuant to this Plan (other than pursuant to this Section (M)) and MSBC also reasonably determines that the transactions contemplated by this Plan can be effected if one or more of the actions contemplated by this Section (M) are taken, then MSBC shall elect to take one or more of the actions contemplated by this Section (M); provided, however, that MSBC shall not be required to take any such action if the taking of such action is, in MSBC's reasonable judgment, reasonably likely to result in the failure of any of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”); provided, however, that (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Company prior to the Closing) (x) alter or change the kind or amount of consideration to be issued to the holders of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposesVI.

Alternative Structure. If following (a) Parent shall be empowered at any time prior to the date Effective Time, to change the method or structure of this Agreement all effecting the combination of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 Company and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger”)Parent; provided, however, that no such change shall (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Company prior to the Closing) (x) alter or change the kind Merger Consideration or amount the number of consideration shares of the Parent Common Stock to be received by the Company’s stockholders in exchange for each share of the Company Common Stock, (ii) adversely affect the Tax treatment of the Company’s or Parent’s shareholders pursuant to this Agreement, (iii) adversely affect the Tax treatment of the Company pursuant to this Agreement or (iv) materially impede or delay the consummation of the transactions contemplated by this Agreement. The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with Section 9.2. (b) Notwithstanding anything to the contrary set forth herein, in the event the Preferred Stockholder Matter shall not have been approved by the Requisite Preferred Vote as of the business day prior to the Closing Date, then the parties agree that (i) the Merger shall be effected by the merger of a newly-formed subsidiary of Parent (“Merger Sub”) with and into the Company and the Company shall be the surviving corporation in such merger and continue its corporate existence under the laws of the State of Maryland as a subsidiary of Parent (the “Alternative Merger”), (ii) the Charter Amendment shall become effective and the Company shall file the Charter Amendment with the Department of Assessments and Taxation of the State of Maryland pursuant to Section 6.19 immediately prior to the effective time of the Alternative Merger, (iii) at the effective time of the Alternative Merger, the holders of Company Common Stock shall have the right to receive the Merger Table of Contents Consideration pursuant to Section 1.5, (iv) the Company Preferred Stock shall remain issued and outstanding at and after the effective time of the Alternative Merger, (v) each share of Common Stock of Merger Sub issued and outstanding immediately prior to the effective time of the Alternative Merger shall be converted into one share of the Company Common Stock and constitute the only outstanding shares of common stock of the Company after the effective time of the Alternative Merger, (vi) the Bank Merger will continue to be effected in accordance with Section 1.13, if so elected by Parent and (vii) the Company Equity Awards shall be cancelled and converted into the right to receive the Merger Consideration or assumed, as applicable, in accordance with Section 1.9 (collectively, items (i) to (vii), the “Alternative Structure”). In the event the parties effect the Alternative Structure, (A) the Company Preferred Stock shall not be converted into, and Parent shall not issue, the New Parent Preferred Stock pursuant to Section 1.6, (B) Parent shall not be required to deposit into the Exchange Fund New Parent Preferred Stock certificates or any cash in connection with the payment of dividends declared with respect to the New Parent Preferred Stock pursuant to Section 2.1 or effect the exchange procedures with respect to the Company Preferred Stock set forth in Section 2.2, and (C) Parent shall not be required to cause the New Parent Preferred Stock to be approved for listing on Nasdaq pursuant to Section 6.5. Intermediary shall have the right to assign this Agreement to Merger Sub in order to consummate the Alternative Merger. Parent, Intermediary and the Company shall use reasonable best efforts to take all corporate action and make all filings reasonably necessary or desirable to facilitate the Alternative Structure. Actions taken in connection with, and the consummation of the transactions contemplated by, the Alternative Structure shall not constitute a breach of any representations and warranties of the parties set forth in this Agreement. If the Alternative Structure is effected by the parties, then all references in this Agreement to the “Merger” shall mean the “Alternative Merger”. Parent may elect in its sole discretion to issue a guarantee to the holders of the Company’s capital stock or other securities as provided Company Preferred Stock that remains outstanding following the Alternative Merger for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable the payment of being satisfied (unless duly waived by dividends, the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger redemption price and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposesliquidation value of the Company Preferred Stock.