Common use of Effect on Company Capital Stock Clause in Contracts

Effect on Company Capital Stock. As of the Effective Time, by ------------------------------ virtue of the Merger and without any action on the part of the holders of any shares of Company Common Stock, each issued and outstanding share of Company Common Stock (X) (other than any shares of Company Common Stock held by the Major Stockholder and the Major Stockholder Affiliates, any shares of Company Common Stock to be cancelled pursuant to Section 3.2 and Dissenting Shares) shall be converted into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist. As of the Effective Time, each Company Certificate, without any action on the part of the Parent, the Company or the holder of such share of Company Common Stock, shall be deemed to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Certificate shall cease to have any rights with respect thereto, except the right to receive, upon the surrender of any such Company Certificates, certificates representing the shares of Parent Common Stock to be issued or paid in consideration therefor upon surrender of such Company Certificate in accordance with Section 3.3 and cash in lieu of fractional interests pursuant to Section 3.4.

Effect on Company Capital Stock. As of (i) At the Effective Time, by ------------------------------ virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of shares of Series A Preferred Stock, each share of Series A Preferred Stock issued and outstanding as of immediately prior to the Effective Time, upon the terms and subject to the conditions set forth in this Section 1.08 and this Agreement, will be cancelled and extinguished and will be converted automatically into the right of the holder to receive from NewCo the Per Share Series A Merger Consideration upon surrender of the certificate, if any, representing such share of Series A Preferred Stock or, with respect to a share of Series A Preferred Stock represented by book-entry, the deemed surrender of such book entry share, as provided in Section 1.11. (ii) At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of shares of Series A-1 Preferred Stock, each share of Series A-1 Preferred Stock issued and outstanding as of immediately prior to the Effective Time, upon the terms and subject to the conditions set forth in this Section 1.08 and this Agreement, will be cancelled and extinguished and will be converted automatically into the right of the holder to receive from NewCo the Per Share Series A-1 Merger Consideration upon surrender of the certificate, if any, representing such share of Series A-1 Preferred Stock or, with respect to a share of Series A-1 Preferred Stock represented by book-entry, the deemed surrender of such book entry share, as provided in Section 1.11. (iii) At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of shares of Series A-2 Preferred Stock, each share of Series A-2 Preferred Stock issued and outstanding as of immediately prior to the Effective Time, upon the terms and subject to the conditions set forth in this Section 1.08 and this Agreement, will be cancelled and extinguished and will be converted automatically into the right of the holder to receive from NewCo the Per Share Series A-2 Merger Consideration upon surrender of the certificate, if any, representing such share of Series A-2 Preferred Stock or, with respect to a share of A-2 Preferred Stock represented by book-entry, the deemed surrender of such book entry share, as provided in Section 1.11. (iv) At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of shares of Series B Preferred Stock, each share of Series B Preferred Stock issued and outstanding as of immediately prior to the Effective Time, upon the terms and subject to the conditions set forth in this Section 1.08 and this Agreement, will be cancelled and extinguished and will be converted automatically into the right of each Person to receive from NewCo the Per Share Series B Merger Consideration upon surrender of the certificate, if any, representing such share of Series B Preferred Stock or, with respect to a share of Series B Preferred Stock represented by book-entry, the deemed surrender of such book entry share, as provided in Section 1.11. (v) At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of shares of Company Common Stock, each issued and outstanding share of Company Common Stock issued and outstanding immediately prior to the Effective Time (X) (other than any shares including each restricted share of Company Common Stock held by the Major Stockholder issued and the Major Stockholder Affiliates, any shares of Company Common Stock outstanding immediately prior to be cancelled pursuant to Section 3.2 and Dissenting Shares) shall be converted into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and which, if unvested, shall automatically vest as provided in Section 1.08(b)), upon the terms and subject to the conditions set forth in this Section 1.08 and this Agreement, will be cancelled and retired extinguished and shall cease to exist. As will be converted automatically into the right of the Effective Time, each Company Certificate, without any action on holder to receive the part Per Share Common Stock Consideration upon surrender of the Parentcertificate, the Company or the holder of if any, representing such share of Company Common Stock, shall be deemed to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Certificate shall cease to have any rights or, with respect thereto, except the right to receive, upon the surrender a share of any such Company Certificates, certificates representing the shares of Parent Common Stock to be issued or paid in consideration therefor upon represented by book-entry, the deemed surrender of such Company Certificate book entry share, as provided in accordance with Section 3.3 and cash 1.11. (vi) Notwithstanding anything set forth in lieu of fractional interests pursuant to this Section 3.41.08, Dissenting Shares will be treated as set forth in Section 1.10.

Effect on Company Capital Stock. As of the Effective Time, by ------------------------------ virtue of the Merger and without any action on the part of the holders of any Company Capital Stock (each a “Stockholder,” and collectively, the “Stockholders”) or any holders of capital stock of MergerCo: (a) All shares of Company Common Stockcommon stock, each par value $0.001 per share, of MergerCo issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into 1,000 fully paid and nonassessable shares of common stock, par value $0.001 per share, of the Surviving Company following the Merger, and such shares shall constitute the only outstanding shares of capital stock of the Surviving Company. (b) Each share of Company Capital Stock that is owned by the Company, by Parent, by MergerCo, or by any other wholly owned subsidiary of Parent, shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor. (c) Each share of Company Common Stock (X) issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock held by the Major Stockholder and the Major Stockholder Affiliates, any shares of Company Common Stock to be cancelled pursuant to in accordance with Section 3.2 2.6(b) and any Dissenting Shares) shall will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Per Share Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share , without interest; provided, less any required withholding tax (however, the "Cash Merger Consideration"); (Yamount payable by Parent pursuant to this Section 2.6(c) held by at the Major Stockholder Affiliates Effective Time shall be converted into less the right cash amount attributable to receive (a) the Exchange Ratio fully paid and nonassessable shares Pro Rata Share of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares such holder of Parent Common Stock in lieu of the Cash Merger Consideration; (ZEscrow Amount pursuant to Section 3.1(a)(ii) held by and Section 3.1(a)(iii) and the Major Stockholder shall be converted into the right Securityholders’ Representative Reimbursement Amount pursuant to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash FractionSection 3.1(a)(ii). As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist. As of the Effective Time, and each Company Certificate, without any action on the part of the Parent, the Company or the holder of such share of Company Common Stock, shall be deemed to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Common Certificate shall cease to have any rights with respect thereto, except the right to receivereceive (subject to any adjustments specified herein and subject to any applicable withholding Tax as specified in Section 3.1(f)), upon the surrender of any such Company CertificatesCommon Certificate or the delivery of an affidavit as described in Section 3.1(d), certificates representing the Per Share Common Consideration, without interest. (d) Each share of Series Seed Preferred Stock issued and outstanding immediately prior to the Effective Time (other than shares of Parent Common Stock to be issued or paid in consideration therefor upon surrender of such Company Certificate cancelled in accordance with Section 3.3 2.6(b) and any Dissenting Shares) will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Per Share Series Seed Consideration, without interest; provided, however, the amount payable by Parent pursuant to this Section 2.6(d) at the Effective Time shall be less the cash amount attributable to the Pro Rata Share of such holder of Series Seed Preferred Stock in lieu of fractional interests the Escrow Amount pursuant to Section 3.43.1(a)(ii) and Section 3.1(a)(iii) and the Securityholders’ Representative Reimbursement Amount pursuant to Section 3.1(a)(ii). As of the Effective Time, all such shares of Series Seed Preferred Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a Series Seed Certificate shall cease to have any rights with respect thereto, except the right to receive (subject to any adjustments specified herein and subject to any applicable withholding Tax as specified in Section 3.1(f)), upon the surrender of such Series Seed Certificate or the delivery of an affidavit as described in Section 3.1(d), the Per Share Series Seed Consideration, without interest. (e) Notwithstanding anything to the contrary in this Section 2.6, a portion of the Merger Consideration payable to the Founders at the Closing will be withheld by Parent subject to the terms of a vesting agreement between Parent and each of the Founders in substantially the form attached hereto as Exhibit C (the “Vesting Agreement”). Parent, the Company and the Surviving Company intend that the payments payable pursuant to the Vesting Agreement (but only with respect to their shares of Company Common Stock which were fully vested upon receipt or for which such holders have filed timely and valid elections under Section 83(b) of the Code) will be treated as received in exchange for the applicable holder’s Company Common Stock, and agree to treat and report for income Tax purposes such payments as consideration for such holder’s Company Common Stock (subject to any applicable imputed interest) and not as compensation for services. The Company and each Founder shall represent in his respective Vesting Agreement that the Company Common Stock to which the Vesting Agreement applies is covered by valid elections under Section 83(b) of the Code.

Effect on Company Capital Stock. As of (a) At the Effective Time, subject to Section 3.4 hereof, each share of the common stock, par value $.01 per share, of the Company (including each attached right (a "Company Right") issued pursuant to the Company Rights Agreement) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time (other than shares of Company Common Stock to be cancelled pursuant to Section 3.1(d) hereof) shall, by ------------------------------ virtue of the Merger and without any action on the part of the holders of any shares of Company Common Stockholder thereof, each issued and outstanding share of Company Common Stock (X) (other than any shares of Company Common Stock held by the Major Stockholder and the Major Stockholder Affiliates, any shares of Company Common Stock to be cancelled pursuant to Section 3.2 and Dissenting Shares) shall be converted into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share without interest1.0222 duly authorized, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio validly issued, fully paid and nonassessable shares (the "Per Share Merger Consideration") of Parent the common stock, par value $1.00 per share, of Acquiror ("Acquiror Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu "). All of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such shares of Company Common Stock converted into Acquiror Common Stock pursuant to this Article III shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each certificate previously representing any such shares of Company Common Stock shall thereafter only represent the right to receive (i) the number of whole shares of Acquiror Common Stock and (ii) the cash in lieu of fractional shares into which the shares of Company Common Stock represented by such certificate have been converted pursuant to this Section 3.1(a) and Section 3.4 hereof. As Certificates previously representing shares of Company Common Stock shall be exchanged for certificates representing whole shares of Acquiror Common Stock and cash in lieu of fractional shares issued in consideration therefor upon the surrender of such certificates in accordance with Section 3.2 hereof, without any interest thereon. If, between the date of this Agreement and the Effective Time, the shares of Acquiror Common Stock shall be changed into a different number or class of shares by reason of any reclassification, recapitalization, split-up, combination, exchange of shares or readjustment, or a stock dividend thereon shall be declared with a record date within said period, the Per Share Merger Consideration shall be adjusted accordingly. (b) At the Effective Time, subject to Section 3.4 hereof, each share of the Company CertificateConvertible Preferred Stock issued and outstanding immediately prior to the Effective Time (other than shares of Company Convertible Preferred Stock to be cancelled pursuant to Section 3.1(d)) shall, by virtue of the Merger and without any action on the part of the Parentholder thereof, be converted into the Company or right to receive the number of shares of Acquiror Common Stock that a holder of the number of shares of Company Common Stock into which such share of Company Convertible Preferred Stock could have been converted immediately prior to the Effective Time would have the right to receive pursuant to Section 3.1(a) hereof. All of the shares of Company Convertible Preferred Stock converted into Acquiror Common StockStock pursuant to this Article III shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each certificate previously representing any such shares of Company Convertible Preferred Stock shall be deemed to thereafter only represent the right to receive (i) the merger consideration as provided by number of whole shares of Acquiror Common Stock and (ii) the second preceding sentence. Each holder cash in lieu of a Company Certificate shall cease to have any rights with respect thereto, except the right to receive, upon the surrender of any such Company Certificates, certificates representing fractional shares into which the shares of Parent Company Common Stock represented by such certificate have been converted pursuant to this Section 3.1(b) and Section 3.4 hereof. Certificates previously representing shares of Company Convertible Preferred Stock shall be issued or paid in consideration therefor upon surrender exchanged for certificates representing whole shares of such Company Certificate in accordance with Section 3.3 Acquiror Common Stock and cash in lieu of fractional interests shares issued in consideration therefor upon the surrender of such certificates in accordance with Section 3.2 hereof, without any interest thereon. (c) At the Effective Time, each share of Other Company Preferred Stock issued and outstanding immediately prior to the Effective Time (other than shares of Other Company Preferred Stock to be canceled pursuant to Section 3.43.1(d)), shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive one share of newly created series of preferred stock of the Acquiror (the "Acquiror New Preferred Stock") having terms substantially identical to those of the Other Company Preferred Stock, except that each share of the Acquiror New Preferred Stock shall entitle the holder thereof to one vote, voting together with the Acquiror Common Stock and not as a separate class, on all matters brought before the holders of the Acquiror Common Stock. (d) At the Effective Time, all shares of Company Common Stock, Company Convertible Preferred Stock and Other Company Preferred Stock that are owned directly or indirectly by Acquiror or the Company or any of their respective subsidiaries (other than shares of Company Common Stock, Company Convertible Preferred Stock and Other Company Preferred Stock (x) held directly or indirectly in trust accounts, managed accounts and the like or otherwise held in a fiduciary capacity for the benefit of third parties (any such shares, whether held directly or indirectly by Acquiror, being referred to herein as "Trust Account Shares") and (y) held by Acquiror or any of its subsidiaries in respect of a debt previously contracted (any such shares of Company Common Stock, Company Convertible Preferred Stock and Other Company Preferred Stock which are similarly held being referred to herein as "DPC Shares")) shall be cancelled and shall cease to exist and no stock of Acquiror or other consideration shall be delivered in exchange therefor. (e) At the Effective Time, each issued and outstanding share of capital stock of HAC shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $.01 per share, of the Surviving Corporation.

Effect on Company Capital Stock. As Immediately prior to the Effective Time, each share of Company Series A Preferred Stock shall be deemed converted into the number of shares of Company Class F Common Stock determined in accordance with Section 4(a) of Article V of the Company’s Second Amended and Restated Certificate of Incorporation (the “Series A Preferred Conversion”). At the Effective Time, by ------------------------------ virtue of the First Merger and without any action on the part of Sub I, the holders of any shares Company or the Company Stockholders, each share of Company Common Stock, each Capital Stock issued and outstanding share of Company Common Stock immediately prior to the Effective Time (Xafter giving effect to the Series A Preferred Conversion) (other than any shares of Company Common Stock held by upon the Major Stockholder terms and subject to the Major Stockholder Affiliatesconditions set forth in this Section 1.7 and throughout this Agreement, any shares of Company Common Stock to including the escrow provisions set forth in Article VI hereof, will be cancelled pursuant to Section 3.2 and Dissenting Shares) shall extinguished and will be converted automatically into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu upon surrender of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all certificate representing such shares of Company Common Capital Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist. As of in the Effective Time, each Company Certificate, without any action on the part of the Parentmanner provided in Section 1.9 hereof, the Company or the holder of such share following: (i) with respect to shares of Company Common Stock, shall be deemed to represent the right to receive the merger consideration as provided Series B Preferred Stock held by the second preceding sentence. Each holder Series B Preferred Stockholders (and for purposes of a Company Certificate shall cease paragraphs (A) and (B) below, only to have any rights the extent such Series B Preferred Stockholders are not also Unaccredited Investors)): (A) with respect theretoto each Series B Mixed Election Share, except the right Per Share Series B Mixed Election Amount; (B) with respect to receiveeach Series B Stock Election Share, upon the surrender of any such Company CertificatesPer Share Series B Stock Election Amount; and (C) with respect to each Series B Cash Election Share, certificates representing the shares of Parent Common Stock Per Share Series B Cash Election Amount, subject to be issued or paid in consideration therefor upon surrender of such Company Certificate adjustment in accordance with Section 3.3 1.7(c) hereof; (ii) with respect to shares of Company Capital Stock held by Unaccredited Stockholders, an amount of cash equal to (A) the Closing Per Share Cash Election Amount plus (B) the applicable Additional Per Share Amount; (iii) with respect to shares of Company Capital Stock (excluding shares of Company Series B Preferred Stock) held by Accredited Stockholders who are not Key Stockholders: (A) with respect to each Mixed Election Share, (1) the Closing Per Share Mixed Election Amount plus (2) any applicable Additional Per Share Amount; (B) with respect to each Stock Election Share, (1) the Closing Per Share Stock Election Amount plus (2) any applicable Additional Per Share Amount; and (C) with respect to each Cash Election Share, (1) the Closing Per Share Cash Election Amount plus (2) any applicable Additional Per Share Amount, subject to adjustment in accordance with Section 1.7(c) hereof; (iv) with respect to shares of Company Capital Stock (excluding shares of Company Series B Preferred Stock) held by Key Stockholders (and cash for purposes of paragraphs (A) and (B) below, only to the extent such Key Stockholders are not also Unaccredited Investors): (A) with respect to each Mixed Election Share, (1) the Closing Per Share Mixed Election Amount, subject to the vesting provisions set forth in lieu of fractional interests pursuant Section 6.5(c) hereof, plus (2) any applicable Additional Per Share Amount; (B) with respect to each Stock Election Share, (1) the Closing Per Share Stock Election Amount, subject to the vesting provisions set forth in Section 3.46.5(c) hereof plus (2) any applicable Additional Per Share Amount; and (C) with respect to each Cash Election Share, (1) the Closing Per Share Cash Election Amount, subject to the vesting provisions set forth in Section 6.5(c) hereof plus (2) any applicable Additional Per Share Amount, subject to adjustment in accordance with Section 1.7(c) hereof.

Effect on Company Capital Stock. As of At the Effective Time, by ------------------------------ virtue of the Merger and without any action on the part of Parent, Merger Sub, the holders of any shares Company or the Company Securityholders: (i) Each share of Company Common Stock, each Series A Preferred Stock issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares) shall be converted at the Effective Time into the right to receive an amount of cash, without interest, equal to the Series A Preferred Preference Per Share, as set forth on the Allocation Certificate, as may be adjusted pursuant to Section 2.8(g) and Article VII of this Agreement. (ii) Each share of Company Series B Preferred Stock issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares) shall be converted at the Effective Time into the right to receive an amount of cash, without interest, equal to the Series B Preferred Preference Per Share, as set forth on the Allocation Certificate, as may be adjusted pursuant to Section 2.8(g) and Article VII of this Agreement. (iii) Each share of Company Common Stock (X) issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock held by the Major Stockholder Dissenting Shares and the Major Stockholder Affiliates, any shares of Company Common Stock to be cancelled pursuant to in accordance with Section 3.2 and Dissenting Shares2.6(e)) shall be converted at the Effective Time into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share of cash, without interest, less any required withholding tax (equal to the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable shares of Parent Common StockPer Share Amount, as Stock Merger Considerationset forth on the Allocation Certificate, as may be adjusted pursuant to Section 2.8(g) and Article VII of this Agreement. (biv) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such All shares of Company Common Stock Capital Stock, when so converted in accordance with this Section 2.6(b), shall no longer be outstanding and shall automatically be cancelled cancelled, and retired and shall cease to exist. As of the Effective Time, each Company Certificate, without any action on the part of the Parent, the Company or the holder of such share of Company Common Stock, shall be deemed to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Certificate representing any such shares of Company Certificate Capital Stock shall cease to have any rights with respect thereto, except the right to receivereceive the applicable portion of the Merger Consideration (as adjusted pursuant to Section 2.11) with respect to such shares of Company Capital Stock in accordance with the terms of this Agreement. (v) Notwithstanding the foregoing, upon a portion of the surrender Merger Consideration (as adjusted pursuant to Section 2.11) payable to each Company Securityholder pursuant to this Section 2.6(b) with respect to shares of any Company Capital Stock owned by such Company CertificatesSecurityholder as of the Effective Time, certificates representing as set forth on the shares Allocation Certificate, shall be (i) withheld and placed in escrow pursuant to the provisions of Parent Common Stock to be issued or paid Section 2.9(b) and (ii) withheld and placed in consideration therefor upon surrender of such Company Certificate the Stockholder Representative Account in accordance with Section 3.3 and cash in lieu of fractional interests pursuant to Section 3.47.6(d).

Effect on Company Capital Stock. As of At the Effective Time, by ------------------------------ virtue of the Merger and without any action on the part of the holders Company, Parent, Merger Sub or the holder of any shares of common stock, par value $0.001 per share, of the Company (the “Company Common Stock”), any shares of preferred stock, par value $0.001 per share, of the Company (the “Company Preferred Stock” and, together with the Company Common Stock, each the “Company Capital Stock”) or any shares of common stock, par value $0.001 per share, of Merger Sub (the “Merger Sub Common Stock”): (a) Each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one (1) fully paid and 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 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. (b) Each share of Company Common Stock (X) (other than any shares of Company Common Stock held that is owned directly by Parent, Merger Sub, the Major Stockholder and the Major Stockholder AffiliatesCompany, any shares of Company Common Stock Subsidiary or held in the Company’s treasury immediately prior to be cancelled pursuant to Section 3.2 and Dissenting Shares) shall be converted into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such shares of Company Common Stock Time shall no longer be outstanding and shall automatically be cancelled and retired canceled and shall cease to exist. As , and no consideration shall be delivered in exchange therefor. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares to be canceled in accordance with Section 2.01(b) and (ii) except as provided in Section 2.05, any shares of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who has not voted in favor of the Merger and who is entitled to demand and properly demands appraisal of such shares of Company Common Stock pursuant to, and complies in all respects with, Section 262 of the DGCL and, as of the Effective Time, each Company Certificatehas neither failed to perfect, without any action on nor effectively withdrawn or lost rights to appraisal under the part of DGCL (the Parent“Dissenting Shares”)), the Company or the holder of such share of Company Common Stock, shall will be deemed to represent converted into the right to receive 0.02731 validly issued, fully paid and non-assessable share of Parent Common Stock (the merger consideration “Merger Consideration”). (d) All shares of Company Capital Stock, when converted as provided by the second preceding sentence. Each in Section 2.01(c), shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate (or evidence of shares in book-entry form (such shares, “Book-Entry Shares”)) that immediately prior to the Effective Time represented any such shares of Company Certificate Capital Stock (each, a “Certificate”) shall cease to have any rights with respect thereto, except the right to receivereceive the applicable Merger Consideration. Notwithstanding the foregoing, upon if between the surrender date of this Agreement and the Effective Time the outstanding shares of Company Capital Stock shall have been changed into a different number of shares or a different class, by reason of any such Company Certificatesstock dividend, certificates representing subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, then any number or amount contained in this Agreement which is based on the number of shares of Parent Company Capital Stock will be appropriately adjusted to provide to the holders of Company Capital Stock the same economic effect as contemplated by this Agreement prior to such event. (e) At the Effective Time, all Company Stock Options shall be treated as set forth in Section 6.04. (f) As of no later than immediately prior to the Effective Time, all of the Company’s outstanding shares of Company Preferred Stock shall have been converted into shares of Company Common Stock to be issued or paid in consideration therefor upon surrender of such Company Certificate in accordance with Section 3.3 and cash in lieu of fractional interests pursuant to Section 3.4a Preferred Stock Conversion Agreement, in the form attached hereto as Exhibit C (the “Company Preferred Stock Conversion Agreement”). (g) As of no later than immediately prior to the Effective Time, all of the Company’s outstanding RC Convertible Notes shall have been converted into shares of Company Common Stock pursuant to a Convertible Notes Conversion Agreement, in the form attached hereto as Exhibit D (the “RC Convertible Notes Conversion Agreement”).

Effect on Company Capital Stock. As By virtue of the Merger and without any action on the part of Buyer, Merger Sub, Company or the holders of any of the following securities: (a) At the Effective Time, subject to Section 2.5, each share of the Company's Common Stock, par value $0.01 per share ("Company Common Stock"), issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.7(c) and any Dissenting Shares) shall be canceled and extinguished and be converted automatically into the right to receive 0.6622 (the "Exchange Ratio") validly issued, fully paid and nonassessable shares of Buyer's Common Stock, par value $0.01 per share ("Buyer Common Stock"). The shares of Buyer Common Stock into which shares of Company Common Stock are converted pursuant to this Section 1.7(a) and any cash payable in lieu of fractional shares pursuant to Section 2.5 are referred to herein collectively as the "Merger Consideration." (b) At the Effective Time, all shares of Company Common Stock to be converted into Buyer Common Stock pursuant to Section 1.7(a) shall, by ------------------------------ virtue of the Merger and without any action on the part of the holders thereof, cease to exist, and each holder of a certificate, which immediately prior to the Effective Time represented any such shares of Company Capital Stock (such certificate or other evidence of ownership, a "Certificate") shall thereafter cease to have any rights with respect to such shares of Company Common Stock, each except the right to receive the applicable Merger Consideration with respect thereto to be issued in consideration therefor and outstanding share any dividends or other distributions to which holders of Company Common Stock become entitled upon the surrender of such Certificate. (Xc) (other than any shares of Company Common Stock held by At the Major Stockholder and the Major Stockholder AffiliatesEffective Time, any shares of Company Common Stock that are owned immediately prior to the Effective Time by Company as treasury stock or by Buyer or Merger Sub shall be cancelled pursuant canceled and extinguished without any conversion thereof. (d) At the Effective Time, except for the Assumed Company Options, all of the following shall be canceled and extinguished without any conversion thereof: (i) outstanding securities convertible into or exchangeable for any capital stock of Company or any of its Subsidiaries; (ii) outstanding options, warrants, calls or other rights, including rights to Section 3.2 demand registration or to sell in connection with any registration by Company or any of its Subsidiaries under the Securities Act of 1933, as amended, and Dissenting Sharesthe rules and regulations promulgated thereunder (the "Securities Act") to purchase or subscribe to Company Common Stock or any of its Subsidiaries or securities convertible into or exchangeable for capital stock of Company or capital stock of any of its Subsidiaries; and (iii) any contract, commitment, agreement, arrangement, plan or understanding (each, a "Contract") of Company or any of its Subsidiaries relating to the issuance, sale or transfer of any equity or other security of Company or any of its Subsidiaries, other than the Transaction Documents. (e) At the Effective Time, each Company Stock Option Plan shall be assumed by Buyer, and each Assumed Company Option then outstanding under any Company Stock Option Plan, whether or not then exercisable, shall be converted into an option to purchase Buyer Common Stock in accordance with this Section 1.7(e). Each Assumed Company Option so converted shall continue to have, and be subject to, the right same terms and conditions (including vesting schedule) as set forth in the applicable Company Stock Option Plan and any agreements thereunder immediately prior to receive the Effective Time, except that, as of the Effective Time, (ai) 0.6876 each Assumed Company Option shall be exercisable (or shall become exercisable in accordance with its terms) for that number of whole shares of Buyer Common Stock equal to the product of the number of shares that were issuable upon exercise of such Assumed Company Option immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Buyer Common Stock, (ii) the per share exercise price for the shares of Buyer Common Stock issuable upon exercise of such Assumed Company Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Assumed Company Option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded up to the nearest whole cent, and (iii) the vesting schedule of each Assumed Company Option shall give effect to (A) all acceleration provisions contained in the applicable Company Stock Option Plan, and (B) the vesting credit requirements set out in Section 5.9(a) hereof. Notwithstanding the foregoing, the conversion of any Assumed Company Options which are subject to Section 422 or Section 423 of the Code, into options to purchase Buyer Common Stock shall be made so as not to constitute a "modification" of such Assumed Company Options within the meaning of Section 424 of the Code. In addition to the foregoing, the number and kind of shares available for issuance under each Company Stock Option Plan shall be converted into shares of Buyer Common Stock in accordance with the provisions of the applicable Company Stock Option Plan. Buyer shall (i) reserve for issuance the number of shares of Buyer Common Stock that will become issuable upon exercise of the Assumed Company Options pursuant to this Section 1.7(e); (ii) promptly after the Effective Time issue, to each holder of an Assumed Company Option, a document evidencing the assumption of the Assumed Company Options and (iii) as soon as reasonably practicable after the Effective Time, but in no event later than fifteen (15) Business Days, cause to be filed a registration statement or registration statements or amend an existing registration statement or registration statements on appropriate forms under the Securities Act relating to the Company Stock Option Plans then in effect and covering the shares of Buyer Common Stock issuable upon exercise of the Assumed Company Options. Buyer shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements for so long as any Assumed Company Options remain outstanding. All Company Options which are not Assumed Company Options (the "Exchange RatioCanceled Company Options") shall terminate upon the Effective Time. (f) At the Effective Time, each share of a common stock, par value $0.01 par value, of Merger Sub ("Merger Sub Common Stock") issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the party of the holder thereof, be converted into and exchanged for one validly issued, fully paid and nonassessable share of Parent Common Stock (common stock, par value $0.01, of the "Stock Surviving Corporation. Each stock certificate of Merger Consideration") and (b) an amount in cash equal Sub evidencing ownership of any such shares shall continue to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable evidence ownership of such shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu capital stock of the Cash Merger Consideration; Surviving Corporation. (Zg) held by If, between the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid date of this Agreement and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such the outstanding shares of Buyer Common Stock or the outstanding shares of Company Common Stock shall no longer have been increased, decreased, changed into or exchanged for a different number of shares or different class, in each case, by reason of any reclassification, recapitalization, stock split, split-up, combination or exchange of shares or a stock dividend or dividend payable in any other securities shall be outstanding and declared with a record date within such period, or any similar event shall automatically be cancelled and retired and shall cease to exist. As of the Effective Time, each Company Certificate, without any action on the part of the Parenthave occurred, the Company or applicable Exchange Ratio shall be appropriately adjusted to provide to the holder holders of such share of Buyer Common Stock and Company Common Stock, shall be deemed Stock the same economic effect as contemplated by this Agreement prior to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Certificate shall cease to have any rights with respect thereto, except the right to receive, upon the surrender of any such Company Certificates, certificates representing the shares of Parent Common Stock to be issued or paid in consideration therefor upon surrender of such Company Certificate in accordance with Section 3.3 and cash in lieu of fractional interests pursuant to Section 3.4event.

Effect on Company Capital Stock. As of Subject to Section 2.18, as applicable to the Key Employee: (i) At the Effective Time, by ------------------------------ virtue of the First Merger and without any action on the part of Buyer, Merger Sub I, the holders of any shares of Company Common Stockor the Company Securityholders, each issued and outstanding share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time (X) (other than any shares of Company Common Stock held by the Major Stockholder and the Major Stockholder Affiliates, excluding any shares of Company Common Stock to be cancelled canceled pursuant to Section 3.2 2.6(b)(v) and any Dissenting Shares) shall be canceled and extinguished and shall be converted into the right to receive receive: (aA) 0.6876 in the case of shares of Company Common Stock held by an Accredited Investor, (1) subject to Section 2.8, Section 2.9, Section 2.10 and Section 2.13, cash in the "Exchange amount of (I) the Residual Per Share Consideration multiplied by (II) the Base Cash Consideration Ratio", plus (2) a number of shares of Buyer Common Stock equal to (I) the Residual Per Share Consideration multiplied by (II) the Base Stock Consideration Ratio divided by (III) the Buyer Stock Price plus (3) cash in the amount of any Additional Per Share Consideration; and (B) in the case of shares of Company Common Stock held by a fully paid Company Stockholder that is not an Accredited Investor, (1) subject to Section 2.8, Section 2.9, Section 2.10 and nonassessable Section 2.13, cash in the amount of the Residual Per Share Consideration plus (2) cash in the amount of any Additional Per Share Consideration. (ii) At the Effective Time, by virtue of the First Merger and without any action on the part of Buyer, Merger Sub I, the Company or the Company Securityholders, each share of Parent Common Series A Preferred Stock that is issued and outstanding immediately prior to the Effective Time (the "excluding any shares of Series A Preferred Stock Merger Consideration"to be canceled pursuant to Section 2.6(b)(v) and (bany Dissenting Shares) an amount in cash equal to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be canceled and extinguished and shall be converted into the right to receive receive: (aA) in the case of shares of Series A Preferred Stock held by an Accredited Investor, (1) subject to Section 2.8, Section 2.9, Section 2.10 and Section 2.13, cash in the amount of (I) the Exchange Ratio fully paid and nonassessable Residual Per Share Consideration multiplied by (II) the Closing Cash Consideration Ratio, plus (2) a number of shares of Parent Buyer Common Stock, as Stock Merger Consideration, and equal to (bI) the Affiliate Residual Per Share Fraction fully paid and nonassessable Consideration multiplied by (II) the Closing Stock Consideration Ratio divided by (III) the Buyer Stock Price plus (3) cash in the amount of any Additional Per Share Consideration; and (B) in the case of shares of Parent Common Series A Preferred Stock held by a Company Stockholder that is not an Accredited Investor, (1) subject to Section 2.8, Section 2.9, Section 2.10 and Section 2.13, cash in lieu the amount of the Cash Residual Per Share Consideration plus (2) cash in the amount of any Additional Per Share Consideration. (iii) At the Effective Time, by virtue of the First Merger Consideration; and without any action on the part of Buyer, Merger Sub I, the Company or the Company Securityholders, each share of Series B Preferred Stock that is issued and outstanding immediately prior to the Effective Time (Zexcluding any shares of Series B Preferred Stock to be canceled pursuant to Section 2.6(b)(v) held by the Major Stockholder and any Dissenting Shares) shall be canceled and extinguished and shall be converted into the right to receive receive: (aA) in the case of shares of Series B Preferred Stock held by an Accredited Investor, (1) subject to Section 2.8, Section 2.9, Section 2.10 and Section 2.13, cash in the amount of (I) the Exchange Ratio Series B Preferred Stock Per Share Consideration multiplied by (less II) the Major Share FractionBase Cash Consideration Ratio, plus (2) fully paid and nonassessable a number of shares of Parent Buyer Common StockStock equal to (I) the Series B Preferred Stock Per Share Consideration multiplied by (II) the Base Stock Consideration Ratio divided by (III) the Buyer Stock Price plus (3) cash in the amount of any Additional Per Share Consideration; and (B) in the case of shares of Series B Preferred Stock held by a Company Stockholder that is not an Accredited Investor, (b1) subject to Section 2.8, Section 2.9, Section 2.10 and Section 2.13, cash in the Cash Merger amount of the Series B Preferred Stock Per Share Consideration and plus (c2) cash in the Major Cash Fraction. As amount of any Additional Per Share Consideration. (iv) At the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist. As by virtue of the Effective Time, each Company Certificate, First Merger and without any action on the part of the ParentBuyer, Merger Sub I, the Company or the holder of such Company Securityholders, each share of Company Common Stock, Series B-1 Preferred Stock that is issued and outstanding immediately prior to the Effective Time (excluding any shares of Series B-1 Preferred Stock to be canceled pursuant to Section 2.6(b)(v) and any Dissenting Shares) shall be deemed to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Certificate canceled and extinguished and shall cease to have any rights with respect thereto, except be converted into the right to receive: (A) in the case of shares of Series B-1 Preferred Stock held by an Accredited Investor, upon (1) subject to Section 2.8, Section 2.9, Section 2.10 and Section 2.13, cash in the surrender amount of (I) the Series B-1 Preferred Stock Per Share Liquidation Preference multiplied by (II) the Base Cash Consideration Ratio, plus (2) a number of shares of Buyer Common Stock equal to (I) the Series B-1 Preferred Stock Per Share Liquidation Preference multiplied by (II) the Base Stock Consideration Ratio divided by (III) the Buyer Stock Price plus (3) cash in the amount of any such Company Certificates, certificates representing Additional Per Share Consideration; and (B) in the case of shares of Parent Series B-1 Preferred Stock held by a Company Stockholder that is not an Accredited Investor, (1) subject to Section 2.8, Section 2.9, Section 2.10 and Section 2.13, cash in the amount of the Series B-1 Preferred Stock Per Share Liquidation Preference plus (2) cash in the amount of any Additional Per Share Consideration (v) Each share of Company Capital Stock held in the treasury of the Company immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof and no payment or distribution shall be made with respect thereto. (vi) Notwithstanding anything to the contrary set forth herein, if at any point the payment of Merger consideration hereunder would prevent the achievement of the Tax treatment set out in Section 5.10 hereof due to an insufficient number of shares of Buyer Common Stock being issued as Merger consideration, then the Parties agree to be issued or paid increase the proportion of any Merger consideration payable to the Participating Holders in Buyer Common Stock (and reduce the proportion of any Merger consideration therefor upon surrender payable to the Participating Holders in cash by an amount equal to the aggregate value of such Company Certificate additional shares of Buyer Common Stock, using the Buyer Stock Price for such purpose) to the extent necessary to achieve such Tax treatment, with any such adjustment being applied in accordance with Section 3.3 and cash proportion to the elections made by the Participating Holders in lieu of fractional interests pursuant to Section 3.4Schedule 2.6(b).

Effect on Company Capital Stock. As (a) At least five Business Days and no more than 30 Business Days prior to the Closing, to the extent that there are any Company Preferred Shares outstanding at such time, the Company shall (i) elect to redeem all Company Preferred Shares that are then outstanding effective immediately prior to the Effective Time (the “Redemption”), and (ii) deliver notice of such election (the “Redemption Notice”) to each holder of record of Company Preferred Shares indicating (A) the number of Company Preferred Shares being redeemed, (B) the effective date of the Redemption, (C) the manner and place designated for surrender of the Company Preferred Shares and (D) the applicable redemption price per Company Preferred Share to be paid by the Buyer, on behalf of the Company, as provided in Section 2.5(a)(xi) (the aggregate redemption price for the Company Preferred Shares, the “Redemption Amount”), in each case in accordance with the Certificate of Designation and the other Organizational Documents of the Company. (b) At the Effective Time, by ------------------------------ virtue of the Merger and without any further action on the part of Buyer, Merger Sub, the holders Company or any stockholder of any shares the Company: (i) subject to Section 2.5(d), each share of Company common stock, par value $0.01 per share (each, a “Company Common StockShare”), each issued and outstanding share of Company Common Stock (X) (immediately prior to the Effective Time, other than any shares of Company Common Stock held by the Major Stockholder and the Major Stockholder AffiliatesDissenting Shares as provided in Section 2.4(b)(ii), any shares of Company Common Stock to shall be cancelled pursuant to Section 3.2 and Dissenting Shares) shall be converted into the right to receive the applicable portion of the Merger Consideration reflected on the Consideration Allocation Schedule. The “Merger Consideration” means an amount, to be paid by Buyer, on behalf of the Company, as provided in Section 2.5(a)(xii) and Section 2.7(a), equal to the sum of (aA) 0.6876 $970,000,000 (the "Exchange Ratio"“Base Consideration”), minus (B) of a fully paid and nonassessable share of Parent Common Stock the Redemption Amount, plus (the "Stock Merger Consideration") and (bC) an amount in cash (which may be positive or negative) equal to $2.50 per share without interest(I) Closing Working Capital, less minus (II) Target Working Capital, plus (D) Closing Cash, minus (E) Closing Indebtedness, minus (F) Closing Transaction Costs, minus (G) Net Tax Adjustment. (ii) Notwithstanding any required withholding tax (provision of this Agreement to the "Cash Merger Consideration"); (Y) contrary, each Company Common Share issued and outstanding immediately prior to the Effective Time held by a Company Common Stockholder who (A) has not voted in favor of adoption of this Agreement or consented thereto in writing or otherwise waived such Company Common Stockholder’s rights to appraisal under applicable Law and (B) has properly exercised appraisal rights with respect to such Company Common Share, as applicable, in accordance with Section 262 of the Major DGCL (“Section 262”) (such Company Common Stockholder, a “Dissenting Stockholder”, and each such Company Common Share being referred to as a “Dissenting Share” until such time as such Dissenting Stockholder Affiliates fails to perfect or otherwise loses such Dissenting Stockholder’s appraisal rights under the DGCL with respect to such Dissenting Share) shall not be converted into the a right to receive (a) a portion of the Exchange Ratio fully paid and nonassessable shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stockbut instead shall, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As effective as of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled canceled and retired extinguished and shall cease to exist. As of the Effective Time, each Company Certificateand except as otherwise provided by Law, without any action on the part of the Parent, the Company or the holder of such share of Company Common Stock, shall be deemed to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Certificate Dissenting Share shall cease to have any rights with respect theretothereto other than the rights granted pursuant to the DGCL; provided, except that upon a determination of the fair value of such Dissenting Shares and whenever such fair value is due and payable in accordance with the provisions of Section 262, the Parties shall cause the Paying Agent to remit to the Company the portion of the Merger Consideration to which such Dissenting Stockholder is entitled in respect of each such Dissenting Share, and the Company shall pay the fair value of the Dissenting Shares to the holders thereof in accordance with Section 262; provided, however, that if, after the Effective Time, such Dissenting Stockholder fails to perfect, withdraws or loses such Dissenting Stockholder’s right to appraisal pursuant to Section 262 or if a court of competent jurisdiction shall determine that such Dissenting Stockholder is not entitled to the relief provided by Section 262, such Dissenting Share shall be treated as if it had been converted as of the Effective Time into the right to receivereceive the portion of the Merger Consideration, if any, to which such Dissenting Stockholder is entitled pursuant to Section 2.4(b)(i) without interest thereon. The Company shall provide Buyer prompt written notice of any demand received by the Company for appraisal of any Company Common Share and copies of all documents or correspondence relating thereto, and Buyer shall have the opportunity and right to direct all negotiations and proceedings with respect to such demands. Except with the prior written consent of Buyer, the Company shall not make any payment with respect to, or settle or offer to settle, any such demands. (iii) Each share of common stock of Merger Sub, par value $0.001 per share, issued and outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and nonassessable Company Common Share. (c) Until surrendered as contemplated by this Agreement, each Certificate shall be deemed, from and after the Effective Time, to represent only the right, subject to Section 2.7, to receive the applicable portion of the Merger Consideration in cash as contemplated by this Agreement. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any such Company Certificates, certificates representing the shares of Parent Common Stock to be issued or paid in consideration therefor upon surrender of such Company Certificate in accordance with Section 3.3 and cash in lieu of fractional interests pursuant to Section 3.4.

Effect on Company Capital Stock. As of At the Effective Time, by ------------------------------ virtue of the Merger and without any action on the part of Merger Sub, the Company, the holders of any shares of Company Common StockCapital Stock (excluding, each for the avoidance of doubt, unexercised Company Options and treasury stock), or any other Person, upon the terms and subject to the conditions set forth in this Agreement, the following shall occur: (i) Each share of Series A Preferred Stock issued and outstanding share of Company Common Stock (X) (other than any shares of Company Common Stock held by the Major Stockholder and the Major Stockholder Affiliates, any shares of Company Common Stock immediately prior to be cancelled pursuant to Section 3.2 and Dissenting Shares) shall be converted into the right to receive (a) 0.6876 (the "Exchange Ratio") of a fully paid and nonassessable share of Parent Common Stock (the "Stock Merger Consideration") and (b) an amount in cash equal to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu of the Cash Merger Consideration; (Z) held by the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically will be cancelled and retired extinguished and shall cease to exist. As of the Effective Time, each Company Certificate, without any action on the part of the Parent, the Company or the holder of such share of Company Common Stock, shall be deemed to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Certificate shall cease to have any rights with respect thereto, except converted automatically into the right to receive, upon the surrender of any the certificate representing such Company Certificatesshare of Series A Preferred Stock in the manner provided in this Agreement, certificates representing the shares sum of (i) the Series A Liquidation Preference plus (ii) the Final Per Share Consideration, of which $0.3061 per share is payable in cash and the remainder is payable in a number of Parent Common Shares calculated by dividing such remainder by the Trading Price. (ii) Each share of Series 2 Preferred Stock issued and outstanding immediately prior to the Effective Time, will be issued or paid in consideration therefor cancelled and extinguished and be converted automatically into the right to receive, upon surrender of the certificate representing such share of Series 2 Preferred Stock in the manner provided in this Agreement, the sum of (i) the Series 2 Liquidation Preference plus (ii) the Final Per Share Consideration, $0.3061 per share is payable in cash and the remainder is payable in a number of Parent Shares calculated by dividing such remainder by the Trading Price. (iii) Each share of Series 1 Preferred Stock issued and outstanding immediately prior to the Effective Time, will be cancelled and extinguished and be converted automatically into the right to receive, upon surrender of the certificate representing such share of Series 1 Preferred Stock in the manner provided in this Agreement, a number of Parent Shares equal to: the Series 1 Liquidation Preference, of which $0.3061 per share is payable in cash and the remainder is payable in a number of Parent Shares calculated by dividing such remainder by the Trading Price. (iv) Each share of Company Certificate Common Stock issued and outstanding immediately prior to the Effective Time, will be cancelled and extinguished and be converted automatically into the right to receive, upon surrender of the certificate representing such share of Company Common Stock in accordance with the manner provided in this Agreement, a number of Parent Shares equal to: (A) the Final Per Share Consideration divided by (B) the Trading Price. (v) Irrespective of clauses (i) through (iv) above, the applicable consideration for Company Capital Stock set forth in this Section 3.3 and 1.6 shall be payable in all cash if the applicable Stockholder is not an “accredited investor,” as defined in lieu Rule 501 under the Securities Act, as represented to Parent by such Securityholder in the Letter of fractional interests Transmittal or the Option Termination Agreement, as applicable, provided, however, that this Section 1.6(a)(v) shall not apply if such Stockholder is entitled to receive Parent Restricted Shares pursuant to Section 3.41.6(c)(i)(B).

Effect on Company Capital Stock. As By virtue of the Merger and without any action on the part of Buyer, Merger Sub, Company or the holders of any of the following securities: (a) At the Effective Time, subject to Section 2.5, each share of the Company’s Common Stock, par value $0.01 per share (“Company Common Stock”), issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.7(c) and any Dissenting Shares) shall be canceled and extinguished and be converted automatically into the right to receive 0.6622 (the “Exchange Ratio”) validly issued, fully paid and nonassessable shares of Buyer’s Common Stock, par value $0.01 per share (“Buyer Common Stock”). The shares of Buyer Common Stock into which shares of Company Common Stock are converted pursuant to this Section 1.7(a) and any cash payable in lieu of fractional shares pursuant to Section 2.5 are referred to herein collectively as the “Merger Consideration.” (b) At the Effective Time, all shares of Company Common Stock to be converted into Buyer Common Stock pursuant to Section 1.7(a) shall, by ------------------------------ virtue of the Merger and without any action on the part of the holders thereof, cease to exist, and each holder of a certificate, which immediately prior to the Effective Time represented any such shares of Company Capital Stock (such certificate or other evidence of ownership, a “Certificate”) shall thereafter cease to have any rights with respect to such shares of Company Common Stock, each except the right to receive the applicable Merger Consideration with respect thereto to be issued in consideration therefor and outstanding share any dividends or other distributions to which holders of Company Common Stock become entitled upon the surrender of such Certificate. (Xc) (other than any shares of Company Common Stock held by At the Major Stockholder and the Major Stockholder AffiliatesEffective Time, any shares of Company Common Stock that are owned immediately prior to the Effective Time by Company as treasury stock or by Buyer or Merger Sub shall be cancelled pursuant canceled and extinguished without any conversion thereof. (d) At the Effective Time, except for the Assumed Company Options, all of the following shall be canceled and extinguished without any conversion thereof: (i) outstanding securities convertible into or exchangeable for any capital stock of Company or any of its Subsidiaries; (ii) outstanding options, warrants, calls or other rights, including rights to Section 3.2 demand registration or to sell in connection with any registration by Company or any of its Subsidiaries under the Securities Act of 1933, as amended, and Dissenting Sharesthe rules and regulations promulgated thereunder (the “Securities Act”) to purchase or subscribe to Company Common Stock or any of its Subsidiaries or securities convertible into or exchangeable for capital stock of Company or capital stock of any of its Subsidiaries; and (iii) any contract, commitment, agreement, arrangement, plan or understanding (each, a “Contract”) of Company or any of its Subsidiaries relating to the issuance, sale or transfer of any equity or other security of Company or any of its Subsidiaries, other than the Transaction Documents. (e) At the Effective Time, each Company Stock Option Plan shall be assumed by Buyer, and each Assumed Company Option then outstanding under any Company Stock Option Plan, whether or not then exercisable, shall be converted into an option to purchase Buyer Common Stock in accordance with this Section 1.7(e). Each Assumed Company Option so converted shall continue to have, and be subject to, the right same terms and conditions (including vesting schedule) as set forth in the applicable Company Stock Option Plan and any agreements thereunder immediately prior to receive the Effective Time, except that, as of the Effective Time, (ai) 0.6876 each Assumed Company Option shall be exercisable (or shall become exercisable in accordance with its terms) for that number of whole shares of Buyer Common Stock equal to the product of the number of shares that were issuable upon exercise of such Assumed Company Option immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Buyer Common Stock, (ii) the per share exercise price for the shares of Buyer Common Stock issuable upon exercise of such Assumed Company Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Assumed Company Option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded up to the nearest whole cent, and (iii) the vesting schedule of each Assumed Company Option shall give effect to (A) all acceleration provisions contained in the applicable Company Stock Option Plan, and (B) the vesting credit requirements set out in Section 5.9(a) hereof. Notwithstanding the foregoing, the conversion of any Assumed Company Options which are subject to Section 422 or Section 423 of the Code, into options to purchase Buyer Common Stock shall be made so as not to constitute a “modification” of such Assumed Company Options within the meaning of Section 424 of the Code. In addition to the foregoing, the number and kind of shares available for issuance under each Company Stock Option Plan shall be converted into shares of Buyer Common Stock in accordance with the provisions of the applicable Company Stock Option Plan. Buyer shall (i) reserve for issuance the number of shares of Buyer Common Stock that will become issuable upon exercise of the Assumed Company Options pursuant to this Section 1.7(e); (ii) promptly after the Effective Time issue, to each holder of an Assumed Company Option, a document evidencing the assumption of the Assumed Company Options and (iii) as soon as reasonably practicable after the Effective Time, but in no event later than fifteen (15) Business Days, cause to be filed a registration statement or registration statements or amend an existing registration statement or registration statements on appropriate forms under the Securities Act relating to the Company Stock Option Plans then in effect and covering the shares of Buyer Common Stock issuable upon exercise of the Assumed Company Options. Buyer shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements for so long as any Assumed Company Options remain outstanding. All Company Options which are not Assumed Company Options (the "Exchange Ratio"“Canceled Company Options”) shall terminate upon the Effective Time. (f) At the Effective Time, each share of a common stock, par value $0.01 par value, of Merger Sub (“Merger Sub Common Stock”) issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the party of the holder thereof, be converted into and exchanged for one validly issued, fully paid and nonassessable share of Parent Common Stock (common stock, par value $0.01, of the "Stock Surviving Corporation. Each stock certificate of Merger Consideration") and (b) an amount in cash equal Sub evidencing ownership of any such shares shall continue to $2.50 per share without interest, less any required withholding tax (the "Cash Merger Consideration"); (Y) held by the Major Stockholder Affiliates shall be converted into the right to receive (a) the Exchange Ratio fully paid and nonassessable evidence ownership of such shares of Parent Common Stock, as Stock Merger Consideration, and (b) the Affiliate Share Fraction fully paid and nonassessable shares of Parent Common Stock in lieu capital stock of the Cash Merger Consideration; Surviving Corporation. (Zg) held by If, between the Major Stockholder shall be converted into the right to receive (a) the Exchange Ratio (less the Major Share Fraction) fully paid date of this Agreement and nonassessable shares of Parent Common Stock, (b) the Cash Merger Consideration and (c) the Major Cash Fraction. As of the Effective Time, all such the outstanding shares of Buyer Common Stock or the outstanding shares of Company Common Stock shall no longer have been increased, decreased, changed into or exchanged for a different number of shares or different class, in each case, by reason of any reclassification, recapitalization, stock split, split-up, combination or exchange of shares or a stock dividend or dividend payable in any other securities shall be outstanding and declared with a record date within such period, or any similar event shall automatically be cancelled and retired and shall cease to exist. As of the Effective Time, each Company Certificate, without any action on the part of the Parenthave occurred, the Company or applicable Exchange Ratio shall be appropriately adjusted to provide to the holder holders of such share of Buyer Common Stock and Company Common Stock, shall be deemed Stock the same economic effect as contemplated by this Agreement prior to represent the right to receive the merger consideration as provided by the second preceding sentence. Each holder of a Company Certificate shall cease to have any rights with respect thereto, except the right to receive, upon the surrender of any such Company Certificates, certificates representing the shares of Parent Common Stock to be issued or paid in consideration therefor upon surrender of such Company Certificate in accordance with Section 3.3 and cash in lieu of fractional interests pursuant to Section 3.4event.