Common use of Effect of the Merger on Capital Stock Clause in Contracts

Effect of the Merger on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.: (a) All shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “Merger Consideration”). (c) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares of Company Stock (a “Certificate”) or (2) shares of Company Stock held in book-entry form (“Book-Entry Shares”) shall cease to have any rights with respect thereto, except (subject to Section 3.6) (A) the right to receive the Merger Consideration and (B) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6. (d) Each share of capital stock of Merger Sub Inc. issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation (the “Surviving Corporation Stock”).

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of Sections 1300-1312 of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under Sections 1300-1312 of the BCA.

Effect of the Merger on Capital Stock. At the Effective Time, by virtue as a result of the Merger and without any action on the part of any the Parent, the Merger Sub, or the Company or the holder of any securities capital stock of the Company Parent, the Merger Sub, or Merger Sub Inc.the Company: (a) All shares each share of the Company Common Stock or Company Preferred Stock that are owned, directly is owned by the Parent or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. any of their respective direct or indirect wholly-owned Subsidiaries as of immediately prior to the Effective Time shall (the “Cancelled Shares”) will automatically be automatically cancelled and retired and shall will cease to exist exist, and no consideration shall will be delivered in exchange therefor.; (b) Each each share of the Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Cancelled Shares and Dissenting Shares) will be converted into the right to receive: (i) such number of shares of Parent Common Stock, subject to the escrow provisions set forth in this Agreement, that is equal to (i) 19,565,217 less any shares of the Parent Common Stock to be cancelled issued in connection with the Merger to any finders or placement agents, including Xxxx Capital Partners, LLC and Emerald Partners Pty Limited, and to any other Persons for the payment of liabilities, (ii) divided by the number of shares of Company Common Stock outstanding immediately prior to the Effective Time; and (ii) any dividends or other distributions to which the holder thereof becomes entitled to upon the surrender of such shares of the Company Common Stock in accordance with Section 3.2(a2.2(k), but including shares ; (c) each share of the Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award issued and outstanding immediately prior to the Effective Time pursuant to Section 3.8(other than Cancelled Shares and Dissenting Shares) shall will be converted automatically into the right to receive 0.0561 receive: (i) such number of Performance Shares, subject to the “Exchange Ratio”escrow provisions set forth in this Agreement that is equal to the quotient of 3,750,000 divided by the number of shares of Company Preferred Stock outstanding immediately prior to the Effective Time; and (ii) any dividends or other distributions to which the holder thereof becomes entitled to upon the surrender of a validly issued, fully paid and non-assessable share such shares of Parent Stock (the “Merger Consideration”)Company Preferred Stock. (cd) As of at the Effective Time, all shares of the Company Common Stock converted into and the Merger Consideration pursuant to this Section 3.2 shall cease to Company Preferred Stock will no longer be outstanding and shall automatically all shares of the Company Common Stock and the Company Preferred Stock will be cancelled and shall retired and will cease to exist, and each holder of of: (1i) a certificate that formerly representing any shares of the Company Common Stock or Company Preferred Stock (each, a “Certificate” or “Company Share Certificate”); or (ii) any book- entry shares which immediately prior to the Effective Time represented any such shares of the Company Common Stock or Company Preferred Stock (each, a “Certificate”) or (2) shares of Company Stock held in book-entry form (“Book-Entry SharesShare”) shall will cease to have any rights with respect thereto, except (subject the right to Section 3.6) receive: (A) the right to receive the Merger Consideration and in accordance with Section 2.2 hereof; and (B) any dividends or other distributions to which the right holder thereof becomes entitled to receive any other amounts expressly provided herein, upon the surrender of such shares of the Company Common Stock in each case, without interest, subject to compliance accordance with the procedures set forth in Section 3.6.2.2(k); (de) Each each share of capital stock of Merger Sub Inc. Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly newly issued, fully paid paid, and nonassessable non-assessable share of common stock, par value $0.001 per share, of the Surviving Corporation with the same rights, powers, and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing shares of the Merger Sub Common Stock shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence; (f) no certificates or scrip representing fractional shares of the Parent Common Stock shall be issued upon the conversion of the Company Common Stock pursuant to Section 2.1(b) or the conversion of the Company Preferred Stock pursuant to Section 2.1(c) and such fractional share interest shall not entitle the owner thereof to vote or to any other rights of a holder of shares of the Parent Common Stock. In the event that any holder of the Company Common Stock or Company Preferred Stock would otherwise be entitled to receive a fractional share of the Parent Common Stock (after aggregating all shares and fractional shares of the Parent Common Stock issuable to such holder), then such holder will receive an aggregate number of shares of the Parent Common Stock rounded down to the nearest whole share; (g) notwithstanding any other provisions of this Agreement, shares of the Company Common Stock and Company Preferred Stock issued and outstanding immediately prior to the Effective Time (other than shares cancelled in accordance with Section 2.1(a)) and held by a holder who has not voted in favor of approval of this Agreement or consented thereto in writing and who has properly exercised right of dissent of such shares in accordance with NRS 92A.300 to NRS 92A.500 (and, if the Company is subject to Section 2115 of the California Corporations Code, such rights as may be granted to such persons in Chapter 13 of the California Corporations Code) (such shares of the Company Common Stock and Company Preferred Stock being referred to collectively as the “Surviving Corporation Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s right of dissent under the NRS with respect to such shares) shall not be converted into a right to receive the Merger Consideration, but instead shall be entitled to only such rights as are granted by NRS 92A.300 to NRS 92A.500 (and, if the Company is subject to Section 2115 of the California Corporations Code, such rights as may be granted to such persons in Chapter 13 of the California Corporations Code); provided, however, that if, after the Effective Time, such holder fails to perfect, withdraws or loses such holder’s right of dissent pursuant to NRS 92A.300 to NRS 92A.500 (or, if applicable, Chapter 13 of the California Corporations Code) or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by NRS 92A.300 to NRS 92A.500 (or, if applicable, Chapter 13 of the California Corporations Code), such shares of the Company Common Stock and Company Preferred Stock shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger Consideration in accordance with Sections 2.1(b) and 2.2 (including the provision for the Escrow Shares pursuant to Section 2.2(j)), without interest thereon, upon surrender of such Certificate or Book-Entry Shares formerly representing the shares of the Company Common Stock and Company Preferred Stock. The Company shall provide the Parent prompt written notice of any demands received by the Company for appraisal of shares of the Company Common Stock and Company Preferred Stock, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to NRS 92A.300 to NRS 92A.500 (or, if applicable, Chapter 13 of the California Corporations Code) that relates to such demand (collectively, “Appraisal Demand Notices”), and the Parent shall have the opportunity and right to direct all negotiations and Proceedings with respect to such demands. Except with the prior written consent of the Parent, the Company shall not make any payment with respect to, or settle or offer to settle, any such demands; and (h) if any shares of the Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement, stock option exercise agreement or other agreement with the Company, then the shares of the Parent Common Stock issued in exchange for such shares of the Company Common Stock will also be unvested and/or subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of the Parent Common Stock may be marked accordingly with appropriate legends.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of 1571 et seq. of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under 1571 et seq. of the BCA.

Effect of the Merger on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of any holder of any securities capital stock of the Company or Merger Sub Inc.Company: (a) All shares Each share of capital stock of Company Stock that are owned, directly or indirectly, is held by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. that is owned by Parent immediately prior to the Effective Time shall cease to be automatically cancelled outstanding and shall be canceled and retired and shall cease to exist and no consideration payment or distribution shall be delivered in exchange thereformade with respect thereto. (b) Each Subject to Sections 3.1(a), 3.1(c) and 3.7, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time shall automatically be converted into the right to receive, at the option of the holder as contemplated by Section 3.1(d) through 3.1(f), either (other than i) 0.63 of a share (the "Exchange Ratio") of Parent Common Stock (the "Stock Consideration") or (ii) (x) a number of shares of Parent Common Stock equal to the product of (A) 75% (the "Stock Percentage") and (B) the Exchange Ratio and (y) an amount in cash equal to the product of (A) 25% (the "Cash Percentage"), (B) the Exchange Ratio and (C) the Parent Average Closing Price (collectively, the "Cash-Stock Consideration" and, together with the Stock Consideration, the "Merger Consideration"). All of the shares of Parent Common Stock to be cancelled in accordance issued as Merger Consideration shall be duly authorized and validly issued and free of preemptive rights, with Section 3.2(a), but including no personal liability attaching to the ownership thereof. All shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Common Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “Merger Consideration”). (c) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 3.1(b) shall cease to be outstanding and shall automatically be cancelled canceled and retired and shall cease to exist, and each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares of Company Common Stock (a “"Company Certificate”) or (2) shares of Company Stock held in book-entry form (“Book-Entry Shares”") shall thereafter cease to have any rights with respect theretoto such shares of Company Common Stock, except (subject to Section 3.6) (A) the right to receive the Merger Consideration to be issued in consideration therefor and any dividends or other distributions to which holders of Company Common Stock become entitled all in accordance with this Article III upon the surrender of such Company Certificate. (Bc) If, between the right date of this Agreement and the Effective Time, there is a reclassification, recapitalization, stock split, split-up, stock dividend, combination or exchange of shares with respect to, or rights issued in respect of, Company Common Stock or Parent Common Stock, the Exchange Ratio shall be adjusted accordingly to receive any other amounts expressly provided herein, in each case, without interest, subject provide to compliance with the procedures set forth in Section 3.6holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such event. (d) Each share Subject to the provisions of capital stock this Section 3.1, each record holder of Merger Sub Inc. issued and shares of Company Common Stock outstanding immediately prior to the Effective Time to be converted in the Merger pursuant to Section 3.1(b) will be entitled to elect for each share of Company Common Stock held by the holder to receive either (i) the Cash-Stock Consideration ("Cash-Stock Election") or (ii) the Stock Consideration ("Stock Election"). All Cash-Stock Elections and Stock Elections shall be converted into one validly issued, fully paid unconditional and nonassessable share made on a form designed for that purpose and mutually agreeable to Parent and Company (a "Form of common stock, par value $0.001 per share, Election"). Any holder of Company Common Stock who fails to properly make a Cash-Stock Election or Stock Election and any holder who fails to submit to the Exchange Agent a properly completed and signed and properly and timely submitted Form of Election shall be deemed to have made a Stock Election with respect to such holder's shares and will receive for such Company Common Stock the Stock Consideration. (e) Company shall use all reasonable best efforts to cause copies of the Surviving Corporation Form of Election (which shall contain a Letter of Transmittal) to be mailed with the Joint Proxy Statement/Prospectus to the record holders of Company Common Stock (other than holders of Dissenting Shares) as of the record date for the Company Stockholders Meeting and to make the Form of Election available to all persons who become record holders of Company Common Stock during the period between such record date and the Election Deadline. A properly completed Form of Election must be received by the Exchange Agent by 5:00 p.m., New York City time, on the second Business Day preceding the Closing Date (the “Surviving Corporation "Election Deadline"), which day shall be publicly announced by Parent as soon as practicable, but in no event less than five Business Days prior to the Election Deadline, in order to be effective. An election by a holder of Company Common Stock shall be validly made only if the Exchange Agent shall have timely received a Form of Election properly completed and executed (with the signature or signatures thereon guaranteed as required by the Form of Election) by that stockholder accompanied, in the case of shares of Company Common Stock that are not held in book entry form, either by the Company Certificate or Company Certificates representing all of the shares of Company Common Stock owned by that stockholder, duly endorsed in blank or otherwise in form acceptable for transfer on the books of Company, or by an appropriate guarantee of delivery in the form customarily used in transactions of this nature from a member of a national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company in the United States; provided that such Company Certificates are in fact delivered to the Exchange Agent within three trading days after the date of execution of such guarantee of delivery. For shares of Company Common Stock that are held in book entry form, Parent shall establish procedures for the delivery of such shares of Company Common Stock”), which procedures shall be reasonably acceptable to the Company. Parent will have the discretion, which it may delegate in whole or in part to the Exchange Agent, to reasonably determine whether Forms of Election have been properly completed, signed and submitted or revoked and to disregard immaterial defects in Forms of Election. The decision of Parent (or the Exchange Agent) shall be conclusive and binding. Neither Parent nor the Exchange Agent will be under any obligation to notify any person of any defect in a Form of Election submitted to the Exchange Agent. Any holder of shares of Company Common Stock who has made an election may at any time prior to the Election Deadline change its election by submitting a properly completed revised Form of Election, to the Exchange Agent prior to the Election Deadline. Any holder of shares of Company Common Stock may at any time prior to the Election Deadline revoke the election and withdraw the Company Certificates deposited with the Exchange Agent by written notice to the Exchange Agent received prior to the Election Deadline. (f) Notwithstanding anything in this Article III to the contrary, Parent shall have the right in its sole discretion and by the giving of one Business Day notice to Company, to increase the Stock Percentage and decrease the Cash Percentage (provided that the Stock Percentage plus the Cash Percentage equals 100%) on a pro rata basis among all holders electing the Cash-Stock Election such that the entire aggregate portion of the Merger Consideration consisting of cash (including cash in lieu of fractional shares) shall be no greater than 50.0% of the total value of the Merger Consideration on the Closing Date.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of Chapter 13 of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under Chapter 13 of the BCA.

Effect of the Merger on Capital Stock. (a) At the Effective Time, subject to the other provisions of this Article II and Article III, each Share issued and outstanding immediately prior to the Effective Time (other than Excluded Shares to be canceled pursuant to Section 2.5(d), any Shares covered under Section 2.6, and any Dissenting Shares, which shall have only those rights set forth in Section 2.7) shall, by virtue of the Merger and without any action on the part of any holder thereof, Parent, Merger Sub or the Company, be converted into the right to receive $190.00 per Share, net in cash, without interest and less any amounts required to be deducted or withheld in accordance with Section 3.3 (the “Merger Consideration”). (b) From and after the Effective Time, all of the Shares converted into the right to receive the Merger Consideration pursuant to this Section 2.5 shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of (x) a certificate (each a “Certificate”) or (y) non-certificated Shares represented by book entry (“Book-Entry Shares”) previously representing any such Shares shall thereafter cease to have any rights with respect to such securities, except the right to receive the Merger Consideration to be paid in consideration therefor upon the exchange of any securities Certificates or Book-Entry Shares, as applicable, in accordance with Section 3.1. (c) If, at any time during the period between the date of this Agreement and the Effective Time, the outstanding Shares are changed into a different number or class of shares, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend or stock distribution thereon with a record date during such period, then the Merger Consideration (including Merger Consideration payable in respect of Company RSU Awards pursuant to Section 2.6(a)(ii)) shall be appropriately equitably adjusted to reflect the effect of such change; provided, however, that (i) nothing in this Section 2.5 shall be construed to permit the Company or to take any action with respect to its securities that is otherwise prohibited by the terms of this Agreement and (ii) cash dividends and grants of equity compensation not prohibited by the terms hereof shall not result in any adjustment to the Merger Sub Inc.:Consideration. (ad) All At the Effective Time, all shares of Company Common Stock that are ownedthat, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time Time, (i) are owned by Parent, Merger Sub or the Company or any direct or indirect wholly-owned Subsidiaries of Parent, Merger Sub or the Company or (ii) are held in treasury of the Company (such shares, together with the shares of Company Common Stock described in clause (i), the “Excluded Shares”) shall automatically be automatically cancelled canceled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (be) Each share of Company Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “Merger Consideration”). (c) As of At the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be each issued and outstanding and shall automatically be cancelled and shall cease to exist, and each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares of Company Stock (a “Certificate”) or (2) shares of Company Stock held in book-entry form (“Book-Entry Shares”) shall cease to have any rights with respect thereto, except (subject to Section 3.6) (A) the right to receive the Merger Consideration and (B) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6. (d) Each share of capital stock common stock, par value $1.00 per share, of Merger Sub Inc. issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 1.00 per share, of the Surviving Corporation (Corporation, which shall constitute the “only outstanding shares of common stock of the Surviving Corporation Stock”)immediately following the Effective Time.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of ___________________ of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under ________________ of the BCA.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of Sections 16-10a-1301 - 1331 it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under Sections 16-10a-1301 - 1331 of the BCA.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (ai) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares i) be converted into the right to be cancelled in accordance with Section 3.2(areceive, without interest, on surrender of the certificate evidencing those shares, (a) the amount of the Cash Merger Consideration and (b) the Stock Merger Consideration (together, the "Merger Consideration"), but including with the shares of Company Common Stock (A) deemed held by the respective Stockholders to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “Merger Consideration”). (c) As portion of the Effective Time, all shares of Company Stock converted into the Cash Merger Consideration pursuant to this Section 3.2 shall and the portion of the Stock Merger Consideration set forth or determined as provided in Schedule 2.04, (ii) cease to be outstanding and shall automatically be cancelled and shall cease to exist, and (iii) be canceled and retired; (ii) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (diii) Each each share of capital stock of Merger Sub Inc. Newco Common Stock issued and outstanding immediately prior to the Effective Time shall will be converted into one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 1.00 per share, of the Surviving Corporation (Corporation, and the “shares of Common Stock of the Surviving Corporation Stock”)issued on conversion will constitute all the issued and outstanding shares of Capital Stock of the Surviving Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, without interest, the Merger Consideration and the additional cash, if any, owing with respect to those shares as provided in Section 2.06.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of Section 5.11 of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under Section 5.11 of the BCA.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of 13.1-722 et seq. of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under 13.1-722 et seq. of the BCA.

Effect of the Merger on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of any holder of any securities capital stock of the Company or Merger Sub Inc.Holdings: (a) All shares of Company Stock that are ownedSubject to Section 3.3, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each each outstanding share of Company Holdings Common Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 one share of Fasteners Common Stock (the “Exchange Ratio”"Merger Consideration"), as set forth on Schedule 3.1(a) hereto. All of a the shares of Fasteners Common Stock to be issued as the Merger Consideration shall be duly authorized, validly issued, fully paid and non-assessable share and free of Parent Stock (preemptive rights, with no personal liability attaching to the “Merger Consideration”). (c) As of the Effective Time, all ownership thereof. All shares of Company Holdings Common Stock converted into the right to receive the Merger Consideration pursuant to this Section 3.2 3.1(a) shall cease to be outstanding and shall automatically be cancelled canceled and retired and shall cease to exist, and each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares of Company Holdings Common Stock (a “"Holdings Certificate”) or (2) shares of Company Stock held in book-entry form (“Book-Entry Shares”") shall thereafter cease to have any rights with respect theretoto such shares of Holdings Common Stock, except (subject to Section 3.6) (A) the right to receive the Merger Consideration and (B) to be issued in consideration therefor in accordance with this Article III upon the right surrender of such Holdings Certificate. Fasteners shall, after the Effective Time, deliver the Merger Consideration to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures holders of Holdings Certificates as set forth in Section 3.6on Schedule 3.1(a). (db) Each share All shares of Fasteners capital stock which are held by Holdings immediately prior to the Effective Time shall be cancelled and retired and shall cease to exist. (c) All other shares of capital stock of Merger Sub Inc. Holdings that are issued and outstanding immediately prior to the Effective Time shall cease to be converted into one validly issued, fully paid outstanding and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation (the “Surviving Corporation Stock”)shall be cancelled and retired and shall cease to exist.

Effect of the Merger on Capital Stock. At the Effective Time, by virtue (a) As a result of the Merger and the transactions contemplated by Section 3.1(b) and without any action on the part of any holder of any securities of the Company Theta, Kappa, Kappa, Inc. or Merger Sub Inc.or the holders of any capital stock of Theta or Merger Sub, at the Effective Time: (ai) All shares limited liability company interests of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. (the “Merger Sub Common Stock”) issued and outstanding immediately prior to the Effective Time shall be converted into one hundred (100) fully paid and nonassessable shares of common stock, par value $0.01 per share, of the Surviving Corporation. (ii) Each share of common stock, par value $0.01 per share, of Theta (the “Theta Common Stock”), issued and outstanding immediately prior to the Effective Time that is owned by Theta or its Subsidiaries and each share of Theta Common Stock issued and outstanding immediately prior to the Effective Time that is owned by Kappa, Kappa, Inc., Merger Sub or any of their respective Subsidiaries shall no longer be outstanding and shall automatically cancelled and retired be canceled and shall cease to exist exist, and no consideration shall be delivered in exchange therefor. (biii) Each Subject to Section 3.2(e), each share of Company Theta Common Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled canceled in accordance with Section 3.2(a3.1(a)(ii)), but including shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 from Kappa on behalf of Kappa, Inc. 0.8000 (the ratio of such number to 1, the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share nonassessable Kappa Shares (such Kappa Shares into which shares of Parent Theta Common Stock (are converted pursuant to this Section 3.1(a)(iii), together with any cash paid in lieu of fractional shares pursuant to Section 3.2(e), the “Merger Consideration”). (c) As of the Effective Time, all . All shares of Company Theta Common Stock converted into the Merger Consideration pursuant to this Section 3.2 3.1(a)(iii), when so converted, shall cease to no longer be outstanding and shall automatically be cancelled canceled and shall cease to exist, and each holder of (1) a certificate that that, immediately prior to the Effective Time, represented any such shares of Theta Common Stock, and each holder of any such share of Theta Common Stock which immediately prior to the Effective Time represented any such shares was registered on the stock transfer books of Company Stock (a “Certificate”) or (2) shares of Company Stock held Theta in book-entry form (“Book-Entry Shares”) uncertificated form, shall cease to have any rights with respect thereto, except (subject to Section 3.6) (A) the right to receive the Merger Consideration and (B) any dividends or other distributions to which holders become entitled upon the right to receive any other amounts expressly provided herein, surrender of such shares of Theta Common Stock in each caseaccordance with Section 3.2(c), without interest. (iv) Each holder of shares of Theta Common Stock shall be deemed to have subscribed for Kappa Shares to be issued by Kappa on behalf of Kappa, subject Inc. as provided for by the Finnish Companies Act (624/2015, as amended from time to compliance time). (b) If, between the date of this Agreement and the Effective Time, the number of outstanding shares of Theta Common Stock or the outstanding Kappa Shares shall have been changed into a different number of shares or a different class of shares by reason of any stock dividend, subdivision, reorganization, reclassification, recapitalization, stock split, reverse stock split, combination or exchange of shares, or any similar event shall have occurred, then the Merger Consideration shall be appropriately and proportionately adjusted to provide to the holders of Theta Common Stock the same economic effect as contemplated by this Agreement prior to such event. (c) In accordance with Section 262 of the DGCL, no appraisal rights shall be available to holders of Theta Common Stock in connection with the procedures set forth in Section 3.6Merger. (d) Each share of capital stock of Merger Sub Inc. issued and outstanding immediately prior Should it not be reasonably possible to list Kappa ordinary shares on the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation New York Stock Exchange (the “Surviving Corporation StockNYSE”) or another U.S. national securities exchange reasonably acceptable to Kappa and Theta (the “US Exchange”) in connection with the consummation of the Merger, all Kappa Shares to be delivered to the Exchange Agent on behalf of Kappa, Inc. pursuant to Section 3.2(a) shall be delivered in the form of American Depositary Shares, each representing the right to one Kappa Share (or such other number of Kappa Shares as Kappa, Inc., Kappa and Theta may determine to be the optimum number of Kappa Shares) (the “Kappa ADSs”). The Kappa ADSs shall be issued pursuant to a Deposit Agreement, in form and substance reasonably acceptable to Theta, Kappa, Inc. and Kappa to be entered into by Kappa with an institution reasonably acceptable to Theta and Kappa, as Depository, and the owners and holders from time to time of Kappa ADSs, as amended. As of the Effective Time, Kappa and Theta shall pay all costs, expenses and taxes imposed in connection with the issuance or creation of the Kappa ADSs to be issued in connection with the Merger.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of ARS Common Stock set forth or determined as provided in Schedule 2.04 (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”). ") and (cB) As the amount of the Effective Time, all cash for and in lieu of fractional shares of Company ARS Common Stock converted into the Merger Consideration as will be determined pursuant to this Section 3.2 shall 2.06, (ii) cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Newco Common Stock issued and outstanding immediately prior to the Effective Time shall will be converted into one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 1.00 per share, of the Surviving Corporation (Corporation, and the “shares of Common Stock of the Surviving Corporation Stock”issued on that conversion will constitute all the issued and outstanding shares of Capital Stock of the Surviving Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Section 2.05, without interest, the Merger Consideration and the additional cash, if any, owing with respect to those shares as provided in Section 2.06. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the provisions of Chapter 13 of the SCBCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under Chapter 13 of the SCBCA.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of Articles 5.11 and 5.12 of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under Article 5.11 of the BCA.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of Articles 5.11 and 5.12 of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under Article 5.12 of the BCA.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All the shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (Ai) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 receive, subject to the provisions of Section 2.05, without interest, on surrender of the certificate evidencing those shares, (A) the amount of cash and the number of whole shares of Apple Common Stock determined as provided in Section 2.04 of the Disclosure Statement (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “"Merger Consideration”"). , (cii) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically to exist and (iii) be cancelled canceled and shall cease to exist, and retired; (b) each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares share of Company Stock (a “Certificate”) or (2) shares of Company Common Stock held in book-entry form the treasury of the Company or any Company Subsidiary will (“Book-Entry Shares”i) shall cease to have any rights with respect thereto, except (subject be outstanding and to Section 3.6) (A) the right to receive the Merger Consideration exist and (Bii) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6.be canceled and retired; and (dc) Each each share of capital stock of Merger Sub Inc. Apple Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into will remain outstanding as one validly issued, fully paid and nonassessable share of common stockCommon Stock, par value $0.001 0.01 per share, of the Surviving Corporation Corporation. Each holder of a certificate representing shares of Company Common Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Sections 2.05 and 2.06, without interest, the Merger Consideration. Notwithstanding the foregoing, the right to receive the Merger Consideration will not apply to any shares of Company Common Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares"), if those rights are available, pursuant to the “Surviving Corporation Stock”)provisions of 5/11.65 and 5/11.70 of the BCA, it being intended and agreed that any holder of those shares shall have in consideration for the cancellation thereof only the rights, if any, afforded to that holder under 5/11.65 and 5/11.70 of the BCA.

Effect of the Merger on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of any the holder of any securities capital stock of the Company or on the part of the sole shareholder of Merger Sub Inc.Sub: (a) All shares of each Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each share of Company Stock Share issued and outstanding immediately prior to the Effective Time (other than shares which for greater certainty does not include any Company Shares sold by an Electing Canadian Company Shareholder to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted Parent pursuant to Section 3.1(athe Canadian Exchange Offer) or any Equity Linked Convertible Notes converted pursuant will be transferred by each holder thereof to Section 3.1(b) or (B) paid Parent in exchange for that number of Parent Shares that is equal to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 (the “Exchange Ratio”) of a validly issued, fully paid and non-assessable share of Parent Stock (the “Merger Consideration”).; (cb) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of (1) a certificate that immediately prior to the Effective Time represented any such shares of Company Stock (a “Certificate”) or (2) shares of Company Stock held in book-entry form (“Book-Entry Shares”) shall cease to have any rights with respect thereto, except (subject to Section 3.6) (A) the right to receive the Merger Consideration and (B) the right to receive any other amounts expressly provided herein, in each case, without interest, subject to compliance with the procedures set forth in Section 3.6. (d) Each share of capital stock of Merger Sub Inc. share issued and outstanding immediately prior to the Effective Time shall be converted into exchanged for one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, stock of the Surviving Corporation as a result of the Merger; (c) each Company Share held by Parent will be exchanged for 0.01 shares of common stock of the “Surviving Corporation Stockas a result of the Merger; (d) each Warrant issued and outstanding immediately prior to the Effective Time will be automatically converted, without further action of the holder thereof, into a Parent Warrant to purchase that number of Parent Shares equal to the Exchange Ratio, each with an exercise price of 1 divided by the Exchange Ratio for one Parent Share, and shall cease to be outstanding, shall be cancelled and shall cease to exist; (e) each Company Option issued and outstanding immediately prior to the Effective Time will be automatically converted, without further action of the holder thereof, into an option (a “New Parent Option”) to purchase that number of Parent Shares equal to the Exchange Ratio, each with an exercise price of 1 divided by the Exchange Ratio for one Parent Share, and shall cease to be outstanding, shall be cancelled and shall cease to exist; (f) each Company Share held in the treasury of the Company immediately prior to the Effective Time, if any, will be canceled and extinguished without any conversion thereof; and (g) each Management Option will be automatically converted, without further action of the holder thereof, into one Non-Participating Voting Share and all Management Options shall thereafter be cancelled. provided however, each holder of (i) Company Shares or Warrants that did not acquire the Company Shares or Warrants in the Series C Financing, and (ii) Management Options entitled to receive Non-Participating Voting Shares, may, as a condition of receiving Parent Shares, Parent Warrants and Non-Participating Voting Shares, as applicable, pursuant to Sections 4.2(a), 4.2(d) and 4.2(g), be required to deliver a certificate in a form satisfactory to the Company and Parent (i) as to their status as an “accredited investor,” as defined in Rule 501(a) of Regulation D promulgated under the U.S. Securities Act (if such holder of Company Shares, Warrants or Management Options is in the United States) or (ii) or confirming that such holder is outside the United States, together with any supporting information as reasonably requested by the Company or Parent in order to confirm their status and the availability of an exemption from the registration requirements of the U.S. Securities Act and applicable state securities laws for the issuance of such Parent Shares, Parent Warrants and Non-Participating Voting Shares, as applicable, to such holder.

Effect of the Merger on Capital Stock. At As of the Effective Time, by virtue as a result of the Merger and without any action on the part of any holder of any securities of the Company or Merger Sub Inc.thereof: (a) All shares of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor. (b) Each each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 3.2(a), but including shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall will be converted automatically into the right to receive 0.0561 (the “Exchange Ratio”) of a validly issuedreceive, fully paid and non-assessable share of Parent Stock (the “Merger Consideration”). (c) As of the Effective Time, all shares of Company Stock converted into the Merger Consideration pursuant to this Section 3.2 shall cease to be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of (1) a certificate that immediately prior subject to the Effective Time represented any such shares provisions of Company Stock (a “Certificate”) or (2) shares of Company Stock held in book-entry form (“Book-Entry Shares”) shall cease to have any rights with respect thereto, except (subject to Section 3.6) (A) the right to receive the Merger Consideration and (B) the right to receive any other amounts expressly provided herein, in each caseParagraph 2(E), without interest, subject to compliance with on surrender of the procedures set forth in Section 3.6. certificate evidencing that share, one-half (d1/2) Each of a share of capital stock IVT Common Stock; (b) each share of Merger Sub Inc. Company Preferred Stock issued and outstanding immediately prior to the Effective Time shall will be converted into the right to receive, subject to the provisions of Paragraph 2(E), without interest, on surrender of the certificate evidencing that share, cash in the amount equal to $100 plus dividends accrued through the day preceding the day on which the Effective Time occurs at the rate of $9.50 per annum and which remain unpaid; and (c) each share of Company Capital Stock issued and outstanding immediately prior to the Effective Time will (i) cease to be outstanding and to exist and (ii) be canceled and retired; (2) each share of Company Capital Stock held in the treasury of the Company or any Company Subsidiary will (a) cease to be outstanding and to exist and (b) be canceled and retired; (3) each option and warrant to purchase Company Common Stock which is issued and outstanding immediately prior to the Effective Time will be converted into an option to purchase such number of shares of IVT Common Stock at such initial exercise prices as are specified in Schedule 2(D); and (4) each share of the common stock, par value $.01 per share, of IVT Sub issued and outstanding immediately prior to the Effective Time will be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 .01 per share, of the Surviving Corporation (Corporation, and the “shares of common stock of the Surviving Corporation Stock”issued on that conversion will constitute all the issued and outstanding shares of capital stock of the Surviving Corporation. Each holder of a certificate representing shares of Company Capital Stock immediately prior to the Effective Time will, as of the Effective Time and thereafter, cease to have any rights respecting those shares other than the right to receive, subject to the provisions of Paragraph 2(E), without interest, the Acquisition Consideration and the additional cash, if any, owing with respect to those shares as provided in Paragraph 2(F). Notwithstanding the foregoing, the right to receive any Acquisition Consideration will not apply to any shares of Company Capital Stock which shall have statutory appraisal rights perfected with respect thereto ("Dissenting Shares") pursuant to the provisions of Articles 5.11, 5.12 and 5.13 of the TBCA, it being intended and agreed that any holder of Dissenting Shares shall have in consideration of the cancellation thereof only the rights, if any, afforded to that holder under Articles 5.11, 5.12 and 5.13 of the TBCA.

Effect of the Merger on Capital Stock. At the Effective Time, by virtue (a) As a result of the Merger and the transactions contemplated by Section 3.1(b) and without any action on the part of any holder of any securities of the Company Theta, Kappa, Kappa, Inc. or Merger Sub Inc.or the holders of any capital stock of Theta or Merger Sub, at the Effective Time: (ai) All shares limited liability company interests of Company Stock that are owned, directly or indirectly, by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub Inc. (the "Merger Sub Common Stock") issued and outstanding immediately prior to the Effective Time shall be converted into one hundred (100) fully paid and nonassessable shares of common stock, par value $0.01 per share, of the Surviving Corporation. (ii) Each share of common stock, par value $0.01 per share, of Theta (the "Theta Common Stock"), issued and outstanding immediately prior to the Effective Time that is owned by Theta or its Subsidiaries and each share of Theta Common Stock issued and outstanding immediately prior to the Effective Time that is owned by Kappa, Kappa, Inc., Merger Sub or any of their respective Subsidiaries shall no longer be outstanding and shall automatically cancelled and retired be canceled and shall cease to exist exist, and no consideration shall be delivered in exchange therefor. (biii) Each Subject to Section 3.2(e), each share of Company Theta Common Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled canceled in accordance with Section 3.2(a3.1(a)(ii)), but including shares of Company Stock (A) deemed to have been issued in respect of any Series A Preferred Stock converted pursuant to Section 3.1(a) or any Equity Linked Convertible Notes converted pursuant to Section 3.1(b) or (B) paid to the holder of a vested Company Equity Award immediately prior to the Effective Time pursuant to Section 3.8) shall be converted automatically into the right to receive 0.0561 from Kappa on behalf of Kappa, Inc. 0.8000 (the “ratio of such number to 1, the "Exchange Ratio”") of a validly issued, fully paid and non-assessable share of Parent Stock nonassessable Kappa Shares (the “Merger Consideration”). (c) As of the Effective Time, all such Kappa Shares into which shares of Company Theta Common Stock are converted into the Merger Consideration pursuant to this Section 3.2 3.1(a)(iii), together with any cash paid in lieu of fractional shares pursuant to Section 3.2(e), the "Merger Consideration"). All shares of Theta Common Stock converted pursuant to this Section 3.1(a)(iii), when so converted, shall cease to no longer be outstanding and shall automatically be cancelled canceled and shall cease to exist, and each holder of (1) a certificate that that, immediately prior to the Effective Time, represented any such shares of Theta Common Stock, and each holder of any such share of Theta Common Stock which immediately prior to the Effective Time represented any such shares was registered on the stock transfer books of Company Stock (a “Certificate”) or (2) shares of Company Stock held Theta in book-entry form (“Book-Entry Shares”) uncertificated form, shall cease to have any rights with respect thereto, except (subject to Section 3.6) (A) the right to receive the Merger Consideration and (B) any dividends or other distributions to which holders become entitled upon the right to receive any other amounts expressly provided herein, surrender of such shares of Theta Common Stock in each caseaccordance with Section 3.2(c), without interest. (iv) Each holder of shares of Theta Common Stock shall be deemed to have subscribed for Kappa Shares to be issued by Kappa on behalf of Kappa, subject Inc. as provided for by the Finnish Companies Act (624/2015, as amended from time to compliance time). (b) If, between the date of this Agreement and the Effective Time, the number of outstanding shares of Theta Common Stock or the outstanding Kappa Shares shall have been changed into a different number of shares or a different class of shares by reason of any stock dividend, subdivision, reorganization, reclassification, recapitalization, stock split, reverse stock split, combination or exchange of shares, or any similar event shall have occurred, then the Merger Consideration shall be appropriately and proportionately adjusted to provide to the holders of Theta Common Stock the same economic effect as contemplated by this Agreement prior to such event. (c) In accordance with Section 262 of the DGCL, no appraisal rights shall be available to holders of Theta Common Stock in connection with the procedures set forth in Section 3.6Merger. (d) Each share Should it not be reasonably possible to list Kappa ordinary shares on the New York Stock Exchange (the "NYSE") or another U.S. national securities exchange reasonably acceptable to Kappa and Theta (the "US Exchange") in connection with the consummation of capital stock of Merger Sub Inc. issued and outstanding immediately prior the Merger, all Kappa Shares to be delivered to the Effective Time Exchange Agent on behalf of Kappa, Inc. pursuant to Section 3.2(a) shall be converted delivered in the form of American Depositary Shares, each representing the right to one Kappa Share (or such other number of Kappa Shares as Kappa, Inc., Kappa and Theta may determine to be the optimum number of Kappa Shares) (the "Kappa ADSs"). The Kappa ADSs shall be issued pursuant to a Deposit Agreement, in form and substance reasonably acceptable to Theta, Kappa, Inc. and Kappa to be entered into one validly issuedby Kappa with an institution reasonably acceptable to Theta and Kappa, fully paid as Depository, and nonassessable share the owners and holders from time to time of common stockKappa ADSs, par value $0.001 per share, as amended. As of the Surviving Corporation (Effective Time, Kappa and Theta shall pay all costs, expenses and taxes imposed in connection with the “Surviving Corporation Stock”)issuance or creation of the Kappa ADSs to be issued in connection with the Merger.