Common use of Effects on Shares Clause in Contracts

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holders of Company Common Stock or holders of any shares of stock of MergerSub: (a) Each share of the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock that is owned by Mx. Xxx immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shall, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Time. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive the Company Common Stock Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company. (d) The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and shall be canceled and only entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time, a cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time, to the extent such Company Stock Option is vested and exercisable, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over the exercise price per share of such Company Stock Option (the “Option Merger Consideration”). The Company shall take all necessary and appropriate actions so that all Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At the Effective Time, all Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate shall cease to have any rights with respect thereto, except the right to receive the Company Common Stock Merger Consideration (without interest) to be paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.02.

Effects on Shares. As of At the Company Merger Effective Time, by virtue of the Company Merger and without any further action on the part of the holders holder of Company Common Stock Shares or holders of any shares of stock of MergerSubin MergerCo: (a) Each common share of the stock beneficial interest, par value $0.01 per share, of MergerSub MergerCo issued and outstanding immediately prior to the Company Merger Effective Time shall be cancelled and shall be converted automatically into the right to receive remain as one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all of the issued and outstanding common stock share of beneficial interest of the Surviving CorporationEntity. (b) Each share of Company Common Stock Share that is owned by Mx. Xxx any Subsidiary or by MergerCo immediately prior to the Company Merger Effective Time (“Mx. Xxx’x Shares”) shallshall automatically be canceled and retired and shall cease to exist, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock Share issued and outstanding (including any Company Common Shares held in any Rabbi Trust for the SERP) immediately prior to the Company Merger Effective Time (other than shares to be canceled in accordance with Section 3.01 (ib)) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Parent equal to $48.50, without interest (the “Company Common Stock Share Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company”). (d) The (i) Each Company Series B Preferred Share issued and outstanding immediately prior to the Company Merger Effective Time (other than the Company Series B Preferred Shares owned by any Subsidiary or by MergerCo, which shall take all necessary be automatically cancelled and appropriate actions so thatretired and cease to exist) shall automatically be converted into, at and shall be cancelled in exchange for, the right to receive one share of 5.25% Series B Cumulative Preferred Stock, par value $.01 per share (the “MergerCo Series B Preferred Shares”) of the Surviving Entity (the “Series B Preferred Share Merger Consideration”), and (ii) each Company Series G Preferred Share issued and outstanding immediately prior to the Company Merger Effective Time (other than the Company Series G Preferred Shares owned by any Subsidiary or by MergerCo, which shall be automatically cancelled and retired and cease to exist) shall automatically be converted into, and shall be cancelled in exchange for, the right to receive one share of 7.75% Series G Cumulative Redeemable Preferred Stock, par value $.01 per share (the “MergerCo Series G Preferred Shares” and, together with the MergerCo Series B Preferred Shares, the “MergerCo Preferred Shares”) of the Surviving Entity (the “Series G Preferred Share Merger Consideration” and, together with the Series B Preferred Share Merger Consideration, the “Company Preferred Share Merger Consideration”). Immediately prior to the Company Merger Effective Time, the terms of the MergerCo Series B Preferred Shares shall be set forth in the articles supplementary of MergerCo, substantially in the form set forth in Exhibit D hereto, and the terms of the MergerCo Series G Preferred Shares shall be set forth in the articles supplementary of MergerCo, substantially in the form set forth in Exhibit E hereto. (e) Immediately prior to the Company Merger Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock Shares (“Company Stock Share Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan any employee or any other employee trustee share option or compensation plan, agreement plan or arrangement of the Company shall become fully vested and exercisable (whether or not then vested or subject to any performance condition that has not been satisfied, and vested; and regardless of the exercise price thereof). At the Company Merger Effective Time, each Company Share Option not theretofore exercised shall be canceled and only entitle in exchange for the holder thereof right to receive, as soon as reasonably practicable after the Effective Time, receive a single lump sum cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock Shares subject to such Company Stock Share Option immediately prior to the Company Merger Effective Time, to the extent such Company Stock Option is whether or not vested and or exercisable, and (ii) the excess, if any, of the Company Common Stock Share Merger Consideration over the exercise price per share of such Company Stock Share Option (the “Option Merger Consideration”), less any applicable Taxes required to be withheld in accordance with Section 3.04 with respect to such payment. The Company shall take all necessary and appropriate actions so that all Company Stock Options with an If the exercise price per share of any such Company Common Stock that Share Option is equal to or greater than the Company Common Stock Share Merger Consideration, such Company Share Option shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other considerationthereof. (ef) At Immediately prior to the Company Merger Effective Time, all restricted share awards (“Company Restricted Shares”) granted pursuant to the 1997 Share Option and Share Award Plan and the 2003 Share Option and Share Incentive Plan (collectively, as amended, modified or supplemented, the “Incentive Plan”) or otherwise that remain unvested automatically shall become fully vested and free of any forfeiture restrictions and each Company Restricted Share shall be considered an outstanding Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existShare for all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Stock Share Merger Consideration. (g) Immediately prior to the Company Merger Effective Time, each outstanding stock appreciation right in respect of Company Common Shares (“SARs”) outstanding under the Incentive Plan shall become fully vested and exercisable (whether or not then vested or subject to any performance condition that has not been satisfied, and regardless of the exercise price thereof). At the Company Merger Effective Time, each SAR not theretofore exercised shall be canceled in exchange for the right to receive a single lump sum cash payment, equal to the product of (i) the number of Company Common Shares subject to such SAR immediately prior to the Company Merger Effective Time, whether or not vested or exercisable, and (ii) the excess, if any, of the Company Common Share Merger Consideration over the exercise price per share of such SAR (without interest) the “SAR Merger Consideration”), less any applicable Taxes required to be paid in consideration therefor upon the surrender of such Certificates withheld in accordance with Section 3.023.04 with respect to such payment. If the exercise price per share of any such SAR is equal to or greater than the Company Common Share Merger Consideration, such SAR shall be canceled without any cash payment being made in respect thereof. (h) Immediately prior to the Company Merger Effective Time, all performance awards (“Performance Awards”) granted under the Strategic Long-Term Incentive Plan and the Deferred Equity Plan pursuant to the Incentive Plan that remain unvested automatically shall become fully vested and free of any forfeiture restrictions and, at the Company Merger Effective Time, shall be paid out, in the case of the Strategic Long-Term Incentive Plan, based on performance through the end of the calendar quarter preceding the date of this Agreement (which would result in maximum payment), and, in the case of the Deferred Equity Plan, at the maximum level, except in a lump sum cash payment equal to the product of (x) the number of Company Common Shares subject to each such Performance Award times (y) the Company Common Share Merger Consideration (the “Performance Award Merger Consideration”), less any applicable Taxes required to be withheld in accordance with Section 3.04 with respect to such payment.

Effects on Shares. As of At the Merger Effective Time, by virtue of the Merger and without any further action on the part of Parent, MergerCo, the holders Company or any of Company Common Stock their respective shareholders or holders of any shares of stock of MergerSubunitholders: (a) Each share common unit of MergerCo (the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and “MergerCo Common Units”), shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all unit of the issued and outstanding common stock of Surviving CorporationEntity. (b) Each Except for each share of Company Common Stock as of the Merger Effective Time held in the name of the Company, as trustee, for the benefit of the individual participants in the Winston Hotels, Inc. Executive Deferred Compensation Plan, each share of Company Common Stock and Company Series B Preferred Stock that is owned by Mx. Xxx any of the Acquired Companies or by Parent, MergerCo or any other Subsidiary of Parent immediately prior to the Merger Effective Time (“Mx. Xxx’x Shares”) shallshall automatically be canceled and retired and shall cease to exist, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Merger Effective Time (other than (ishares to be canceled in accordance with Section 3.1(b)) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Parent equal to $15.00 without interest (the “Company Common Stock Share Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company”). (d) The Not later than the earlier of the time at which the Company gives notice of the Contemplated Transactions to its shareholders and the date that is thirty (30) days prior to the Merger Effective Time, the Company shall take notify each holder of the options granted pursuant to the Company Plan (“Options”), in writing, of the Contemplated Transactions in accordance with the Company Plan (the “Option Holder Notice”). Immediately prior to the Merger Effective Time, all necessary and appropriate actions so such Options that remain unvested automatically shall become fully vested. The Option Holder Notice shall (i) apprise the holders of outstanding Options of their ability to exercise the Options in accordance with the Company Plan prior to the Merger Effective Time, (ii) disclose that, if not exercised, such Options will terminate at the Merger Effective Time and (iii) disclose that if any Options are not exercised prior to the Merger Effective Time and terminate as contemplated in clause (ii), the holders of such Options will be entitled to receive the Option Merger Consideration in respect of such Options. As of the Merger Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement shall be terminated by virtue of the Company Merger and each holder of an Option shall become fully exercisable and vested; and shall be canceled and only entitle cease to have any rights with respect thereto, other than the holder thereof right to receive, as soon as reasonably practicable after the Effective Timein respect of each such terminated Option, a single lump sum payment (without interest and subject to the deduction and withholding of such amounts as Parent, the Surviving Entity or the Paying Agent, as applicable, is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign tax law) in cash payment, less any applicable withholding taxes, an amount equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective TimeShare Merger Consideration, to the extent such Company Stock Option is vested and exercisable, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over minus the exercise price per share of for such Company Stock Option (the “Option Merger Consideration”). The Company Payment of the Option Merger Consideration to each of the holders of Options entitled thereto shall take be made as soon as practicable after the Merger Effective Time, subject to the terms and conditions of this Agreement. Any amounts withheld and paid over to the appropriate taxing authority by Parent, the Surviving Entity or the Paying Agent will be treated for all necessary purposes of this Agreement as having been paid to the holder of the Option in respect of whom such deduction and appropriate actions so that all Company Stock Options with an withholding was made. If the exercise price per share of Company Common Stock that any such Option is equal to or greater than the Company Common Stock Share Merger Consideration, such Option shall be canceled at the Effective Time without any cash payment being made in respect thereof thereof. Prior to the Merger Effective Time, the Company shall take all actions required by the Company Plan under which such Options were granted to cause such Company Plan and all Options granted thereunder to terminate at the Merger Effective Time, including adopting any plan amendments and resolutions and obtaining any required Consents, without paying any other considerationconsideration or incurring any debts or obligations on behalf of the Company or the Surviving Entity. (e) At Immediately prior to the Merger Effective Time, all restricted share awards (“Restricted Shares”) granted pursuant to the Company Plan or otherwise that remain unvested automatically shall become fully vested and free of any forfeiture restrictions and each Restricted Share shall be considered an outstanding share of Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existfor all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Share Merger Consideration. Prior to the Merger Effective Time, the Company will adopt such resolutions and will take such other actions, including adopting any plan amendments and obtaining any required Consents, as shall be required to effectuate the actions contemplated by this Section 3.1(e), without paying any consideration or incurring any debts or obligations on behalf of the Company or the Surviving Entity. (f) If, subsequent to the date of this Agreement but prior to the Merger Effective Time, the outstanding shares of Company Common Stock shall have been changed into a different number of shares as a result of a stock split, reverse stock split, stock dividend, subdivision, reclassification, split, combination, exchange, recapitalization, or any dividend or other distribution payable in stock or other securities is declared thereon or rights issued in respect thereof with a record date within such period, or other similar transaction, the Company Common Share Merger Consideration, the Option Merger Consideration and the Common Unit Consideration shall be appropriately adjusted so that the aggregate amount payable pursuant to this Agreement to effect the Merger Transactions shall not have increased as a result of such adjustment. (without interestg) Each share of Company Series B Preferred Stock issued and outstanding immediately prior to the Merger Effective Time (other than shares to be paid in consideration therefor upon the surrender of such Certificates canceled in accordance with Section 3.023.1(b)) shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Parent equal to the sum of (i) $25.44 per share (if the Merger Effective Time occurs on or prior to June 30, 2007) or $25.38 per share (if the Merger Effective Time occurs after June 30, 2007 and on or prior to September 30, 2007) plus (ii) any accrued and unpaid dividends as of the Merger Effective Time (the “Company Preferred Share Merger Consideration”).

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holders holder of Company Common Stock Shares or holders of any shares of stock of MergerSub:MergerSub (other than the requisite approval of the Merger by the stockholders of the Company): (a) Each share Company Common Share that is owned by the Company or any Subsidiary of the stock of Company or by MergerSub issued and outstanding shall, immediately prior to the Effective Time shall Time, automatically be cancelled and retired and shall cease to exist, and no payment shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all of the issued and outstanding common stock of Surviving Corporationmade with respect thereto. (b) Each share of Company Common Stock that is owned by Mx. Xxx immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shall, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Time. (c) Each share of Company Common Stock Share issued and outstanding immediately prior to the Effective Time (other than (ishares to be canceled in accordance with Section 3.01(a)) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Surviving Corporation equal to the Offer Price (the “Company Common Stock Share Cash Merger Consideration”). At any time prior to the date of the Company Shareholder Stockholder Meeting, Parent, Parent may, in its sole and absolute discretion, increase the Company Common Stock Share Cash Merger Consideration without the consent of the Company. (c) Each (i) Company Series D Preferred Share issued and outstanding immediately prior to the Effective Time shall remain outstanding immediately after the Effective Time as one share of 7.80% Series D Cumulative Voting Step-Up Premium Rate Preferred Stock, par value $0.01 per share, of the Surviving Corporation (until the same are liquidated in accordance with Section 2.12) and (ii) Company Series E Preferred Share issued and outstanding immediately prior to the Effective Time shall remain outstanding immediately after the Effective Time as one share of 7.625% Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Surviving Corporation (until the same are liquidated in accordance with Section 2.12). (d) Immediately prior to the Effective Time, each incentive stock option and nonqualified option to purchase Company Common Shares (“Company Share Options”) under any employee or director share option or compensation plan, agreement or arrangement of the Company, including the Company’s 2003 Stock Incentive Plan, as amended (“Company Option Plans”), shall become fully vested and exercisable (whether or not then vested or subject to any performance condition that has not been satisfied, and regardless of the exercise price thereof or the terms of any other agreement regarding the vesting, delivery or payment thereof). The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Share Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and not theretofore exercised shall be canceled and only entitle in exchange for the holder thereof right to receive, as soon as reasonably practicable after the Effective Time, receive a single lump sum cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock Shares subject to such Company Stock Share Option immediately prior to the Effective TimeTime (whether or not then vested or subject to any performance condition that has not been satisfied, to and regardless of the extent such Company Stock Option is vested and exercisableexercise price thereof or the terms of any other agreement regarding the vesting, delivery or payment thereof), and (ii) the excess, if any, of the Company Common Stock Share Cash Merger Consideration over the exercise price per share of such Company Stock Share Option (the “Option Merger Consideration”). The If the exercise price per share of any such Company Share Option is equal to or greater than the Company Common Share Cash Merger Consideration, the Company shall take all necessary and appropriate actions so that all such Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, Share Option shall be canceled at the Effective Time without any cash payment being made in respect thereof thereof. For the avoidance of doubt, incentive stock options and without any other considerationnonqualified options granted on February 27, 2007 are included in the Company Share Options covered by this Section 3.01(d). (e) At The Buyer Parties acknowledge that, whether or not subject to any performance condition that has not been satisfied, and regardless of any other agreement regarding the vesting, delivery or payment thereof, all outstanding restricted share awards (“Company Restricted Shares”) granted pursuant to the Company’s 2003 Stock Incentive Plan, as amended (the “Incentive Plan”), shall automatically become fully vested and free of any forfeiture restrictions immediately prior to the Effective Time, all and each Company Restricted Share shall be considered an outstanding Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existShare for all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Stock Share Cash Merger Consideration Consideration. For the avoidance of doubt, any restricted share awards (without interestincluding any performance-based restricted share award) granted on February 27, 2007 are included in the Company Restricted Shares covered by this Section 3.01(e). (f) The Buyer Parties acknowledge that, whether or not subject to any performance condition that has not been satisfied, and regardless of any other agreement regarding the vesting, delivery or payment thereof, all deferred share units granted under the Incentive Plan and accounted for under the Company’s Deferred Compensation Plan (“Company Share Rights”) shall automatically become fully vested and free of any forfeiture restrictions immediately prior to the Effective Time, and each Company Share Right shall be considered an outstanding Company Common Share for all purposes of this Agreement, including the right to receive the Company Common Share Cash Merger Consideration. (g) Each share of the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be converted into one duly authorized, validly issued, fully paid in consideration therefor upon and nonassessable share of common stock, $.01 par value per share, of Surviving Corporation, so that, after the surrender Effective Time, Parent shall be the holder of such Certificates in accordance with Section 3.02all of the issued and outstanding common stock of Surviving Corporation.

Effects on Shares. As of At the Company Merger Effective Time, by virtue of the Company Merger and without any further action on the part of the holders holder of Company Common Stock Shares or holders of any shares of stock of MergerSubin MergerCo: (a) Each share of the stock common stock, par value $0.01 per share, of MergerSub MergerCo issued and outstanding immediately prior to the Company Merger Effective Time shall be cancelled remain as one issued and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable outstanding share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all stock of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock Share that is owned by Mx. Xxx any Subsidiary or by MergerCo immediately prior to the Company Merger Effective Time (“Mx. Xxx’x Shares”) shallshall automatically be canceled and retired and shall cease to exist, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock Share issued and outstanding immediately prior to the Company Merger Effective Time (other than (ishares to be canceled in accordance with Section 3.01(b)) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Parent equal to $44.75, without interest (the “Company Common Stock Share Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company”). (d) The Each Company Series E Preferred Share issued and outstanding immediately prior to the Company Merger Effective Time (other than the Company Series E Shares owned by any Subsidiary or by MergerCo, which shall take all necessary be automatically cancelled and appropriate actions so thatretired and cease to exist) shall automatically be converted into, at and shall be cancelled in exchange for, the right to receive one share of 7.50% Series E Cumulative Redeemable Preferred Stock, par value $.01 per share (the “MergerCo Preferred Shares”), of the Surviving Corporation, (the “Series E Preferred Share Merger Consideration”). Immediately prior to the Company Merger Effective Time, the terms of the MergerCo Preferred Shares shall be set forth in the articles supplementary of MergerCo, substantially in the form set forth in Exhibit E hereto. (e) Immediately prior to the Company Merger Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock Shares (“Company Stock Share Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan any employee or any other employee director share option or compensation plan, agreement plan or arrangement of the Company (“Company Option Plans”), shall become fully vested and exercisable (whether or not then vested or subject to any performance condition that has not been satisfied, and vested; and regardless of the exercise price thereof). At the Company Merger Effective Time, each Company Share Option not theretofore exercised shall be canceled and only entitle in exchange for the holder thereof right to receive, as soon as reasonably practicable after the Effective Time, receive a single lump sum cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock Shares subject to such Company Stock Share Option immediately prior to the Company Merger Effective Time, to the extent such Company Stock Option is whether or not vested and or exercisable, and (ii) the excess, if any, of the Company Common Stock Share Merger Consideration over the exercise price per share of such Company Stock Share Option (the “Option Merger Consideration”)) less any applicable Taxes required to be withheld in accordance with Section 3.04 with respect to such payment. The Company shall take all necessary and appropriate actions so that all Company Stock Options with an If the exercise price per share of any such Company Common Stock that Share Option is equal to or greater than the Company Common Stock Share Merger Consideration, such Company Share Option shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other considerationthereof. (ef) At The Buyer Parties acknowledge that all restricted share awards (“Company Restricted Shares”) granted pursuant to the 1997 Employee Stock Option and Incentive Plan (the “Incentive Plan”) or otherwise that remain unvested automatically shall become fully vested and free of any forfeiture restrictions immediately prior to the Company Merger Effective Time, all and each Company Restricted Share shall be considered an outstanding Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existShare for all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Stock Share Merger Consideration. (g) The Buyer Parties acknowledge that all restricted share unit and deferred share unit awards (“Company Restricted Share Units”) granted pursuant to the Incentive Plan or otherwise (including any Company Restricted Share Units previously and additionally credited after the grant date on account of dividend equivalents) automatically shall become fully vested and free of any forfeiture restrictions immediately prior to the Company Merger Effective Time, and each Company Restricted Unit shall be considered an outstanding Company Common Share for all purposes of this Agreement, including the right to receive the Company Common Share Merger Consideration. Payment of the Company Common Share Merger Consideration (without interest) to in respect of any deferred Company Restricted Share Unit shall be paid in consideration therefor upon the surrender of such Certificates performed in accordance with Section 3.027.05(d). (h) The Buyer Parties acknowledge that the cash bonus payable pursuant to stock value units awarded in connection with certain awards of Company Restricted Shares and Company Restricted Share Units as set forth in Section 4.03(d) the Disclosure Schedule (the “SVUs”) automatically shall, to the extent not previously vested, become fully vested and free of any forfeiture restrictions immediately prior to the Company Merger Effective Time. The Buyer Parties also acknowledge that any cash dividend equivalent payments as set forth in Section 4.03(e) of the Disclosure Schedule accumulated under and payable in connection with vesting of restricted and deferred share unit awards also automatically shall become fully vested. Parent shall cause the Paying Agent to make, and the Paying Agent shall make, the SVU cash bonus and the accumulated dividend equivalent payments becoming vested under this paragraph out of the Exchange Fund (the aggregate amount of such stock value unit cash bonus and accumulated dividend equivalent payments shall be referred to as the “SVU Settlement Amount”) less any applicable Taxes required to be withheld in accordance with Section 3.04 with respect to such payment.

Effects on Shares. As of At the Effective Time, by virtue of the Merger and without any further action on the part of the holders of Company Common Stock or holders of any shares of stock of MergerSub: (a) Each share of the stock common stock, par value $0.001 per share, of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 0.01 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders holder of all of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock that is owned by Mx. Xxx the Company or any Subsidiary of the Company or by Parent or MergerSub shall, immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shallTime, remain issued automatically be cancelled and outstanding retired and treated as issued shall cease to exist, and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares that are owned by shareholders stockholders who have properly perfected and not withdrawn a demand for for, or lost their right to, appraisal rights pursuant to Sections 607.1301 to 607.1333 Section 262 of the FBCA DGCL (“Dissenting Shares”) and (ii) Mx. Xxx’x shares to be canceled in accordance with Section 3.01(b) (together with the Dissenting Shares, which shall remain issued and outstanding and unaffected by the Merger“Excluded Shares”), ) shall automatically be converted into, and canceled in exchange for, into the right to receive the Company Common Stock Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Companyinterest. (d) The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and shall be canceled and only entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time, a cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time, to the extent such Company Stock Option is vested and exercisable, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over the exercise price per share of such Company Stock Option (the “Option Merger Consideration”). The Company shall take all necessary and appropriate actions so that all Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At the Effective Time, all Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate formerly representing any Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Company Common Stock Merger Consideration (without interest) to be paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.023.02 or to be paid the fair value of Dissenting Shares in accordance with the DGCL, as the case may be. (i) Immediately prior to the Effective Time, each then-outstanding and unexercised option (the “Company Stock Options”) to purchase shares of the Company Common Stock under either the Company’s 2003 Stock Option Plan or the Company’s Amended and Restated 2006 Equity Incentive Plan (each, a “Company Stock Plan” and collectively, the “Company Stock Plans”), whether or not vested or exercisable, shall be (and the Company shall take all actions necessary to cause them to be), as of and immediately prior to the Effective Time, terminated (if not exercised prior to the Effective Time) or cancelled and converted into the right to receive from Parent or Surviving Corporation, in settlement thereof, a cash payment, less any applicable Taxes required to be withheld and without interest, equal to the product, if a positive number, of (i) the excess, if any, of the Company Common Stock Merger Consideration over the per share exercise price of such Company Stock Option and (ii) the number of shares of the Company Common Stock subject to such Company Stock Option not exercised; provided that any Company Stock Options for which the per share exercise price equals or exceeds the Company Common Stock Merger Consideration (the “Option Merger Consideration”) will be cancelled without any payment in respect thereof and shall be of no further force and effect. (ii) At the Effective Time, each then-outstanding and unexercised warrant to purchase shares of Company Common Stock (“Company Warrants” and together with the Company Stock Options, the “Equity Awards”) outstanding immediately prior to the Effective Time, whether vested or unvested, will be (and the Company shall take all actions necessary to cause them to be) cancelled and converted into and will become a right to receive from Parent or Surviving Corporation, in settlement thereof, a cash payment, less any applicable Taxes required to be withheld and without interest, equal to the product, if a positive number, of (i) the excess, if any, of the Company Common Stock Merger Consideration over the per share exercise price of such Company Warrant and (ii) the number of shares of the Company Common Stock subject to such Company Warrant not exercised; provided that any Company Warrants for which the per share exercise price equals or exceeds the Company Common Stock Merger Consideration (the “Warrant Consideration”) will be cancelled without any payment in respect thereof and shall be of no further force and effect. (iii) Surviving Corporation shall pay all amounts payable pursuant to this Section 3.01 to (A) holders of Company Warrants, as soon as practicable after the Effective Time and in any event no later than five Business Days thereafter, and (B) to holders of Company Stock Options, as soon as practicable after the Effective Time and in any event no later than five Business Days thereafter. Except as otherwise agreed to in writing by the parties, (i) each Company Stock Plan will terminate as of the Effective Time, and (ii) the Company shall use commercially reasonable efforts to assure that following the Effective Time, no participant in any Company Stock Plan will have any rights thereunder to acquire the capital stock of the Company or Surviving Corporation.

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holders of Company Common Stock or holders of any shares of stock of MergerSub: (a) Each share of the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 0.01 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders holder of all of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock that is owned by Mx. Xxx the Company or any Subsidiary of the Company or by Parent or MergerSub (including any shares of Company Common Stock contributed to Parent by Buyer) shall, immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shallTime, remain issued automatically be cancelled and outstanding retired and treated as issued shall cease to exist, and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares that are owned by shareholders stockholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 Section 262 of the FBCA DGCL (“"Dissenting Shares”") and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Mergershares to be canceled in accordance with Section 3.01(b), ) shall automatically be converted into, and canceled in exchange for, the right to receive the Company Common Stock Merger Consideration. At any time prior to the date of the Company Shareholder Stockholder Meeting, Parent, Parent may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company. (d) The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“"Company Stock Options”") under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and not theretofore exercised shall be canceled and only entitle in exchange for the holder thereof right to receive, as soon as reasonably practicable after the Effective Time, receive a single lump sum cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time, to the extent such Company Stock Option is vested and exercisable, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over the exercise price per share of such Company Stock Option (the “"Option Merger Consideration”"). The portions of any outstanding Company Stock Options that are not vested as of the Effective Time (the "Unvested Portions of Company Stock Options") shall not become vested as a result of this Agreement. The Company shall take all necessary and appropriate actions so that all (x) Unvested Portions of Company Stock Options and (y) Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At . After the Effective Time, all Company Stock Options shall be terminated and no further Company Stock Options shall be granted. (e) Each share of Company Restricted Stock that is vested or becomes vested as of the Effective Time shall be considered an outstanding share of Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existfor all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Stock Merger Consideration Consideration. The term "Company Restricted Stock" shall mean any outstanding share awards that were granted pursuant to each of the Company's 1998 Employee Stock Purchase Plan, as amended, 2002 Amended and Restated Stock Incentive Plan and 2002 Amended and Restated Outside Directors' Stock Option Plan (without interest) to collectively, the "Incentive Plans"). Each share of Company Restricted Stock that is not vested as of the Effective Time shall be paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.02forfeited and cancelled.

Effects on Shares. As of At the Effective Time, by virtue of the Merger and without any further action on the part of the holders of Company Common Stock or holders of any shares of stock of MergerSub: (a) Each share of the stock common stock, par value $0.001 per share, of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 0.01 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders holder of all of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock that is owned by Mx. Xxx the Company or any Subsidiary of the Company or by Parent or MergerSub shall, immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shallTime, remain issued automatically be cancelled and outstanding retired and treated as issued shall cease to exist, and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares that are owned by shareholders stockholders who have properly perfected and not withdrawn a demand for for, or lost their right to, appraisal rights pursuant to Sections 607.1301 to 607.1333 Section 262 of the FBCA DGCL (“Dissenting Shares”) and (ii) Mx. Xxx’x shares to be canceled in accordance with Section 3.01(b) (together with the Dissenting Shares, which shall remain issued and outstanding and unaffected by the Merger“Excluded Shares”), ) shall automatically be converted into, and canceled in exchange for, into the right to receive the Company Common Stock Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Companyinterest. (d) The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and shall be canceled and only entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time, a cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time, to the extent such Company Stock Option is vested and exercisable, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over the exercise price per share of such Company Stock Option (the “Option Merger Consideration”). The Company shall take all necessary and appropriate actions so that all Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At the Effective Time, all Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate formerly representing any Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Company Common Stock Merger Consideration (without interest) to be paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.023.02 or to be paid the fair value of Dissenting Shares in accordance with the DGCL, as the case may be. (i) Immediately prior to the Effective Time, each then-outstanding and unexercised option (the “Company Stock Options”) to purchase shares of the Company Common Stock under either the Company's 2003 Stock Option Plan or the Company's Amended and Restated 2006 Equity Incentive Plan (each, a “Company Stock Plan” and collectively, the “Company Stock Plans”), whether or not vested or exercisable, shall be (and the Company shall take all actions necessary to cause them to be), as of and immediately prior to the Effective Time, terminated (if not exercised prior to the Effective Time) or cancelled and converted into the right to receive from Parent or Surviving Corporation, in settlement thereof, a cash payment, less any applicable Taxes required to be withheld and without interest, equal to the product, if a positive number, of (i) the excess, if any, of the Company Common Stock Merger Consideration over the per share exercise price of such Company Stock Option and (ii) the number of shares of the Company Common Stock subject to such Company Stock Option not exercised; provided that any Company Stock Options for which the per share exercise price equals or exceeds the Company Common Stock Merger Consideration (the “Option Merger Consideration”) will be cancelled without any payment in respect thereof and shall be of no further force and effect. (ii) At the Effective Time, each then-outstanding and unexercised warrant to purchase shares of Company Common Stock (“Company Warrants” and together with the Company Stock Options, the “Equity Awards”) outstanding immediately prior to the Effective Time, whether vested or unvested, will be (and the Company shall take all actions necessary to cause them to be) cancelled and converted into and will become a right to receive from Parent or Surviving Corporation, in settlement thereof, a cash payment, less any applicable Taxes required to be withheld and without interest, equal to the product, if a positive number, of (i) the excess, if any, of the Company Common Stock Merger Consideration over the per share exercise price of such Company Warrant and (ii) the number of shares of the Company Common Stock subject to such Company Warrant not exercised; provided that any Company Warrants for which the per share exercise price equals or exceeds the Company Common Stock Merger Consideration (the “Warrant Consideration”) will be cancelled without any payment in respect thereof and shall be of no further force and effect. (iii) Surviving Corporation shall pay all amounts payable pursuant to this Section 3.01 to (A) holders of Company Warrants, as soon as practicable after the Effective Time and in any event no later than five Business Days thereafter, and (B) to holders of Company Stock Options, as soon as practicable after the Effective Time and in any event no later than five Business Days thereafter. Except as otherwise agreed to in writing by the parties, (i) each Company Stock Plan will terminate as of the Effective Time, and (ii) the Company shall use commercially reasonable efforts to assure that following the Effective Time, no participant in any Company Stock Plan will have any rights thereunder to acquire the capital stock of the Company or Surviving Corporation.

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the holders Company or any of Company Common Stock or holders of any shares of stock of MergerSubtheir respective stockholders: (a) Each common share of the stock of MergerSub Merger Sub, par value $0.01 per share, issued and outstanding immediately prior to the Effective Time shall remain outstanding and be cancelled and shall be converted automatically into unaffected by the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all of the issued and outstanding common stock of Surviving CorporationMerger. (b) Each share of Company Common Stock Share that is owned by Mx. Xxx any Subsidiary or by Parent, Merger Sub or any other Subsidiary of Parent immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shallshall automatically be canceled and retired and shall cease to exist, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock Share issued and outstanding immediately prior to the Effective Time (including each restricted share (a "Restricted Share") granted under the Company's 2004 Long-Term Incentive Plan (the "Incentive Plan") or otherwise, but other than (ishares to be canceled in accordance with Section 3.01(b)) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount equal to the sum of (i) $13.35 (the "Company Common Share Cash Merger Consideration"), and (ii) to the extent the Company's regular dividend with respect to the fiscal quarter in which the Effective Time occurs has not previously been declared and paid, an amount in cash equal to $0.175 multiplied by the quotient obtained by dividing (x) the number of days between the last day of the last fiscal quarter for which full quarterly dividends on the Company Common Stock Shares have been declared and paid and the Effective Time (including the date on which the Effective Time occurs) by (y) the total number of days in the fiscal quarter during which the Effective Time occurs, without interest (the "Additional Company Common Share Merger Consideration. At any time prior to the date of the Company Shareholder Meeting" and, Parent, may, in its sole and absolute discretion, increase together with the Company Common Stock Share Cash Merger Consideration without Consideration, the consent of the Company"Company Common Share Merger Consideration"). (d) The Each share of the Company's 8.25% Series A Cumulative Redeemable Preferred Shares, par value $0.01 per share (the "Company shall take all necessary Series A Preferred Shares"), issued and appropriate actions so that, at outstanding immediately prior to the Effective TimeTime shall be converted into one validly issued, each outstanding qualified fully paid and nonassessable share of the Surviving Entity's 8.25% Series A Cumulative Redeemable Preferred Shares, par value $0.01 per share having the rights and preferences set forth in Exhibit B hereto (the "Surviving Entity Series A Preferred Shares" and the consideration issued in exchange for the Company Series A Preferred Shares, the "Preferred Share Merger Consideration"). (e) By virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or nonqualified option the holders of Restricted Shares granted pursuant to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Incentive Plan or any other employee share option or compensation planotherwise, agreement or arrangement of the Company all Restricted Shares automatically shall become fully exercisable vested and vested; and shall be canceled and only entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time, a cash payment, less free of any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option forfeiture restriction immediately prior to the Effective Time, to the extent such and shall be considered Company Stock Option is vested and exercisableCommon Shares for all purposes of this Agreement, and (ii) the excess, if any, including receipt of the Company Common Stock Merger Consideration over the exercise price per share of such Company Stock Option (the “Option Merger Consideration”). The Company shall take all necessary and appropriate actions so that all Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At the Effective Time, all Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate shall cease to have any rights with respect thereto, except the right to receive the Company Common Stock Merger Consideration (without interest) to be paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.02.Common

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holders of Company Common Stock or holders of any shares of stock of MergerSub: (a) Each share of the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and MxXx. Xxx shall be the only holders of all of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock that is owned by MxXx. Xxx immediately prior to the Effective Time (“MxXx. Xxx’x Shares”) shall, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Time. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) MxXx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive the Company Common Stock Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company. (d) The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and shall be canceled and only entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time, a cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time, to the extent such Company Stock Option is vested and exercisable, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over the exercise price per share of such Company Stock Option (the “Option Merger Consideration”). The Company shall take all necessary and appropriate actions so that all Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At the Effective Time, all Company Common Stock (other than Dissenting Shares and MxXx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate shall cease to have any rights with respect thereto, except the right to receive the Company Common Stock Merger Consideration (without interest) to be paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.02.

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holders of Company Common Stock or holders of any shares of stock of MergerSub: (a) Each share of the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 0.01 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders holder of all of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock that is owned by Mx. Xxx the Company or any Subsidiary of the Company or by Parent or MergerSub shall, immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shallTime, remain issued automatically be cancelled and outstanding retired and treated as issued shall cease to exist, and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares that are owned by shareholders stockholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 Section 262 of the FBCA DGCL (“"Dissenting Shares”") and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Mergershares to be canceled in accordance with Section 3.01(b), ) shall automatically be converted into, and canceled in exchange for, the right to receive the Company Common Stock Merger Consideration. At any time prior to the date of the Company Shareholder Stockholder Meeting, Parent, Parent may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company. (d) The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“"Company Stock Options”") under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and not theretofore exercised shall be canceled and only entitle in exchange for the holder thereof right to receive, as soon as reasonably practicable after the Effective Time, receive a single lump sum cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time, to the extent such Company Stock Option is vested and exercisableexercisable at the Effective Time, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over the exercise price per share of such Company Stock Option (the “"Option Merger Consideration”"). The Company shall take all necessary and appropriate actions so that all (x) Company Stock Options that are not vested at the Effective Time and (y) Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than the Company Common Stock Merger Consideration, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At consideration provided to the holder thereof. After the Effective Time, all Company Stock Options shall be terminated. (e) Each share of Company Restricted Stock that is vested or becomes vested as of the Effective Time shall be considered an outstanding share of Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existfor all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Stock Merger Consideration Consideration. The term "Company Restricted Stock" shall mean any outstanding share awards that were granted pursuant to each of the Company's 2002 Amended and Restated Stock Incentive Plan, 2002 Amended and Restated Outside Directors' Stock Option Plan and ESPP (without interest) to collectively, the "Incentive Plans"). Each share of Company Restricted Stock that is not vested as of the Effective Time shall be paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.02forfeited and cancelled.

Effects on Shares. As of the Company Merger Effective Time, by virtue of the Company Merger and without any further action on the part of the holders holder of Company Common Stock Shares or holders of any shares of stock of MergerSubin MergerCo: (a) Each share of the stock common stock, par value $0.01 per share, of MergerSub MergerCo issued and outstanding immediately prior to the Company Merger Effective Time shall be cancelled remain as one issued and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable outstanding share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all stock of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock Share that is owned by Mx. Xxx any Subsidiary or by MergerCo shall, immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shall, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Company Merger Effective Time, automatically be canceled and retired and shall cease to exist, and no payment shall be made with respect thereto. (c) Each share of Company Common Stock Share issued and outstanding immediately prior to the Company Merger Effective Time (other than (ishares to be canceled in accordance with Section 3.01(b)) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Parent equal to $19.50 (the “Company Common Stock Share Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company”). (d) Each Company Series A Preferred Share issued and outstanding immediately prior to the Company Merger Effective Time (other than the Company Series A Shares owned by any Subsidiary or by MergerCo, which shall be automatically cancelled and retired and cease to exist) shall automatically be converted into, and shall be cancelled in exchange for, the right to receive one share of 7.8750% Series A Preferred Stock, par value $0.01 per share (the “MergerCo Series A Preferred Shares”), of the Surviving Corporation (the “Company Series A Preferred Share Merger Consideration”). The MergerCo Series A Preferred Shares shall have terms that are materially the same as the terms of the Company shall take all necessary and appropriate actions so thatSeries A Preferred Shares outstanding on the date hereof, at except that MergerCo rather than the Company will be the issuer of the shares. At the Company Merger Effective Time, MergerCo’s Articles of Incorporation will be amended or supplemented to include terms that are materially the same as the Company Series A Preferred Shares. (e) At the Company Merger Effective Time, each outstanding qualified or nonqualified option warrant to purchase Company Common Stock Shares listed in Section 4.03(b) of the Disclosure Schedule (the “Company Stock OptionsWarrants”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and not theretofore exercised shall be canceled and only entitle in exchange for the holder thereof right to receive, as soon as reasonably practicable after the Effective Time, receive a single lump sum cash payment, less any applicable withholding taxes, equal to the product of (i) the number of shares of Company Common Stock Shares subject to such Company Stock Option Warrant immediately prior to the Company Merger Effective Time, to the extent such Company Stock Option is vested and whether or not exercisable, and (ii) the excess, if any, of the Company Common Stock Share Merger Consideration over the exercise price per share of such Company Stock Option Warrant (the “Option Warrant Merger Consideration”). The Company shall take all necessary and appropriate actions so that all Company Stock Options with an If the exercise price per share of any such Company Common Stock that Warrant is equal to or greater than the Company Common Stock Share Merger Consideration, such Company Warrant shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other considerationthereof. (ef) At The Buyer Parties acknowledge that, to the extent not previously vested, all outstanding restricted share awards (“Company Restricted Shares”) granted pursuant to the Company’s Amended and Restated 2003 Omnibus Stock Incentive Plan, as amended (the “Incentive Plan”), automatically shall become fully vested and free of any forfeiture restrictions immediately prior to the Company Merger Effective Time, all . Each such Company Restricted Share shall be considered an outstanding Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existShare for all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Stock Share Merger Consideration (without interest) Consideration. The amount of previously accrued and unpaid dividends on the Company Restricted Shares also shall become fully vested immediately prior to the Company Merger Effective Time and shall be paid in consideration therefor upon by the surrender of such Certificates in accordance with Section 3.02Surviving Corporation immediately following the Company Merger Effective Time.

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holders any holder of Company Common Stock Shares or holders of any shares of stock of MergerSubin MergerCo: (a) Each share of the stock common stock, par value $0.001 per share, of MergerSub MergerCo issued and outstanding immediately prior to the Effective Time shall be cancelled exchanged for one issued and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable outstanding share of common stock, $0.001 par value per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all stock of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock Share that is held in treasury of the Company or owned by Mx. Xxx any of its Subsidiaries or by MergerCo shall, immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shallTime, remain issued automatically be canceled and outstanding retired without any conversion thereof and treated as issued shall cease to exist, and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment or distribution shall be made with respect thereto. (c) Each share of Company Common Stock Share issued and outstanding immediately prior to the Effective Time (other than (ishares to be canceled in accordance with Section 3.01(b) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled and will no longer be outstanding and will cease to exist, and each holder of such Company Common Share will cease to have any rights with respect thereto, in exchange for, the right to receive an amount in cash to be paid by Parent equal to $10.22 per Company Common Share, without interest (the “Merger Consideration”). (d) Each option to purchase Company Common Shares (each, a “Company Option”) that is outstanding at the Effective Time, whether vested or unvested, shall automatically, and without any action required on the part of the holder thereof, be cancelled, with the holder of such Company Option becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to (i) the number of Company Common Shares subject to the Company Option at the Effective Time multiplied by (ii) the excess (if any) of the Merger Consideration over the per share exercise price applicable to the Company Option (net of any applicable Taxes withheld pursuant to Section 3.03). In the event that the exercise price of a Company Option exceeds the Merger Consideration, such Company Option shall be cancelled for no consideration. Cash amounts payable pursuant to this Section shall be paid through the Company’s payroll, less any applicable Taxes withheld pursuant to Section 3.03, within five (5) Business Days following the Effective Time. (e) Each restricted stock unit award in respect of Company Common Shares (each, an “RSU Award”) that is outstanding immediately prior to the Effective Time shall, automatically and without any action required on the part of the holder thereof, accelerate and become fully vested, and be canceled in exchange for, the right to receive the Company Common Stock Merger Consideration. At any time prior an amount in cash to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company. (d) The Company shall take all necessary and appropriate actions so that, at the Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement of the Company shall become fully exercisable and vested; and shall be canceled and only entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time, a cash payment, less any applicable withholding taxes, paid by Parent equal to the product of (i) the number of shares of Company Common Stock subject to Shares underlying such Company Stock Option RSU Award immediately prior to the Effective Time, multiplied by the Merger Consideration. Cash amounts payable pursuant to this Section shall be paid through the extent such Company’s payroll, net of any applicable Taxes withheld pursuant to Section 3.03, within five (5) Business Days following the Effective Time. (f) The Company, the Company Stock Option is vested and exercisable, and (ii) Board or the excess, if any, compensation committee of the Company Common Stock Merger Consideration over Board, as applicable, has adopted any resolutions and taken any actions (including obtained any employee or other consents), or as soon as practicable following the exercise price per share date of this Agreement shall adopt such Company Stock Option resolutions and take such other actions (the “Option Merger Consideration”including providing any required notices or obtaining any employee or other consents). The Company shall take all , in each case, that are necessary and or appropriate actions so that all Company Stock Options with an exercise price per share of Company Common Stock that is equal to or greater than terminate the Company Common Stock Merger ConsiderationEquity Plan, shall be canceled at the Effective Time without any cash payment being made in respect thereof and without any other consideration. (e) At the Effective Time, all Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate shall cease to have any rights with respect thereto, except the right to receive cancel the Company Common Stock Merger Consideration (without interest) to be paid in consideration therefor upon Equity Awards and otherwise effectuate the surrender provisions of such Certificates in accordance with this Section 3.023.01.

Effects on Shares. As of the Effective Time, by virtue of the Merger and without any further action on the part of the holders holder of Company Common Stock Shares, Series B Preferred Shares or holders of any shares of stock of MergerSub: (a) Each share of the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stock, $0.001 .01 par value per share, of the Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx the stockholders of MergerSub shall be the only holders holder of all of the issued and outstanding common stock of the Surviving Corporation. (b) Each share of Company Common Stock Share and Series B Preferred Share that is owned by Mx. Xxx the Company or by MergerSub shall, immediately prior to the Effective Time (“Mx. Xxx’x Shares”) shallTime, remain issued automatically be cancelled and outstanding retired and treated as issued shall cease to exist, and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock Share issued and outstanding immediately prior to the Effective Time (other than (i) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”, as defined below, and shares to be canceled in accordance with Section 3.01(b)) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Parent equal to the Common Stock Offer Price (the “Company Common Stock Share Merger Consideration”). At any time prior to the date of the Company Shareholder Stockholder Meeting, Parent, Parent may, in its sole and absolute discretiondiscretion but subject to all applicable Laws, increase the Company Common Stock Share Merger Consideration without the consent of the Company. (d) The Company shall take all necessary and appropriate actions so that, at At the Effective Time, each by virtue of the Merger and without any action on the part of any holder of outstanding qualified or nonqualified option warrants to purchase shares of Company Common Stock Shares (“Company Stock OptionsWarrants”) under ), if permitted by the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement terms of the respective Company shall become fully exercisable and vested; and Warrant, each Company Warrant shall be canceled and shall only entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time, a cash paymentan amount in cash, less any applicable withholding taxeswithout interest, equal to the product of (ix) the total number of shares of Company Common Stock subject to such Shares issuable upon exercise of the Company Stock Option immediately prior to the Effective Time, to the extent such Company Stock Option is vested and exercisable, and Warrant multiplied by (iiy) the excess, if any, of the value of the Company Common Stock Share Merger Consideration over the per share exercise price per share of such Company Stock Option Warrant less applicable Taxes required to be withheld with respect to any such payment (the “Option Warrant Merger Consideration”). The Company shall take all necessary and appropriate actions so In the event that all Company Stock Options with an the exercise price per share of any Company Common Stock that Warrant is equal to or greater than the Company Common Stock Share Merger Consideration, such Company Warrant shall be canceled at cancelled and have no further force or effect. Prior to the Effective Time without Time, the Company shall use commercially reasonable efforts to take any cash payment being made in respect thereof and without any other considerationactions that are necessary to accomplish the provisions of Section 3.01(d). (e) At Each Series B Preferred Share issued and outstanding immediately prior to the Effective Time, all Company Common Stock Time (other than Dissenting Shares Shares, as defined below, and Mx. Xxx’x Sharesshares to be canceled in accordance with Section 3.01(b)) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existconverted into, and each holder of a Certificate shall cease to have any rights with respect theretocanceled in exchange for, except the right to receive the Company Common Stock Merger Consideration (without interest) an amount in cash to be paid in consideration therefor upon by Parent equal to the surrender of such Certificates in accordance with Section 3.02Preferred Stock Offer Price (the “Series B Per Share Merger Consideration”).

Effects on Shares. As of At the Merger Effective Time, by virtue of the Merger and without any further action on the part of Parent, MergerCo, the holders Company or any of Company Common Stock or holders of any shares of stock of MergerSubtheir respective shareholders: (a) Each common share of MergerCo, par value $0.01 per share (the stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be cancelled and “MergerCo Common Shares”), shall be converted automatically into the right to receive one duly authorized, validly issued, fully paid and nonassessable share of common stockstock of the Surviving Entity, $0.001 par value $0.01 per share, of Surviving Corporation, so that, after the Effective Time, Parent and Mx. Xxx shall be the only holders of all of the issued and outstanding common stock of Surviving Corporation. (b) Each share of Company Common Stock that is owned by Mx. Xxx any of the Acquired Companies or by Parent, MergerCo or any other Subsidiary of Parent immediately prior to the Merger Effective Time (“Mx. Xxx’x Shares”) shallshall automatically be canceled and retired and shall cease to exist, remain issued and outstanding and treated as issued and outstanding shares of common stock of the Surviving Corporation after the Effective Timeno payment shall be made with respect thereto. (c) Each share of Company Common Stock issued and outstanding immediately prior to the Merger Effective Time (other than (ishares to be canceled in accordance with Section 3.1(b)) shares that are owned by shareholders who have perfected and not withdrawn a demand for appraisal rights pursuant to Sections 607.1301 to 607.1333 of the FBCA (“Dissenting Shares”) and (ii) Mx. Xxx’x Shares, which shall remain issued and outstanding and unaffected by the Merger), shall automatically be converted into, and canceled in exchange for, the right to receive an amount in cash to be paid by Parent equal to $14.10, less the Lady Luck Adjustment Amount, if any, without interest (the “Company Common Stock Share Merger Consideration. At any time prior to the date of the Company Shareholder Meeting, Parent, may, in its sole and absolute discretion, increase the Company Common Stock Merger Consideration without the consent of the Company”). (d) The Not later than the earlier of the time at which the Company gives notice of the Contemplated Transactions to its shareholders and the date that is thirty (30) days prior to the Merger Effective Time, the Company shall take notify each holder of the options granted pursuant to the Company Plan (“Options”), in writing, of the Contemplated Transactions in accordance with the Company Plan (the “Option Holder Notice”). Immediately prior to the Merger Effective Time, all necessary and appropriate actions so such Options that remain unvested automatically shall become fully vested. The Option Holder Notice shall (i) apprise the holders of outstanding Options of their ability to exercise the Options in accordance with the Company Plan prior to the Merger Effective Time, (ii) disclose that, if not exercised, such Options will terminate at the Merger Effective Time and (iii) disclose that if any Options are not exercised prior to the Merger Effective Time and terminate as contemplated in clause (ii), the holders of such Options will be entitled to receive the Option Merger Consideration in respect of such Options. As of the Merger Effective Time, each outstanding qualified or nonqualified option to purchase Company Common Stock (“Company Stock Options”) under the Company’s 2001 Stock Option Plan and 2005 Stock Option Plan or any other employee share option or compensation plan, agreement or arrangement shall be terminated by virtue of the Company Merger and each holder of an Option shall become fully exercisable and vested; and shall be canceled and only entitle cease to have any rights with respect thereto, other than the holder thereof right to receive, as soon as reasonably practicable after the Effective Timein respect of each such terminated Option, a single lump sum payment (without interest and subject to the deduction and withholding of such amounts as Parent, the Surviving Entity or the Paying Agent, as applicable, is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign tax law) in cash payment, less any applicable withholding taxes, an amount equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective TimeShare Merger Consideration, to the extent such Company Stock Option is vested and exercisable, and (ii) the excess, if any, of the Company Common Stock Merger Consideration over minus the exercise price per share of for such Company Stock Option (the “Option Merger Consideration”). The Company Payment of the Option Merger Consideration to each of the holders of Options entitled thereto shall take be made as soon as practicable after the Merger Effective Time, subject to the terms and conditions of this Agreement. Any amounts withheld and paid over to the appropriate taxing authority by Parent, the Surviving Entity or the Paying Agent will be treated for all necessary purposes of this Agreement as having been paid to the holder of the Option in respect of whom such deduction and appropriate actions so that all Company Stock Options with an withholding was made. If the exercise price per share of Company Common Stock that any such Option is equal to or greater than the Company Common Stock Share Merger Consideration, such Option shall be canceled at the Effective Time without any cash payment being made in respect thereof thereof. Prior to the Merger Effective Time, the Company shall take all actions required by the Company Plan under which such Options were granted to cause such Company Plan and all Options granted thereunder to terminate at the Merger Effective Time, including adopting any plan amendments and resolutions and obtaining any required Consents, without paying any other considerationconsideration or incurring any debts or obligations on behalf of the Company or the Surviving Entity. (e) At Immediately prior to the Merger Effective Time, all restricted share awards (“Restricted Shares”) granted pursuant to the Company Plan or otherwise that remain unvested automatically shall become fully vested and free of any forfeiture restrictions and each Restricted Share shall be considered an outstanding share of Company Common Stock (other than Dissenting Shares and Mx. Xxx’x Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existfor all purposes of this Agreement, and each holder of a Certificate shall cease to have any rights with respect thereto, except including the right to receive the Company Common Share Merger Consideration. Prior to the Merger Effective Time, the Company will adopt such resolutions and will take such other actions, including adopting any plan amendments and obtaining any required Consents, as shall be required to effectuate the actions contemplated by this Section 3.1(e), without paying any consideration or incurring any debts or obligations on behalf of the Company or the Surviving Entity. (f) If, subsequent to the date of this Agreement but prior to the Merger Effective Time, the outstanding shares of Company Common Stock shall have been changed into a different number of shares as a result of a stock split, reverse stock split, stock dividend, subdivision, reclassification, split, combination, exchange, recapitalization, or any dividend or other distribution payable in stock or other securities is declared thereon or rights issued in respect thereof with a record date within such period, or other similar transaction, the Company Common Share Merger Consideration, the Option Merger Consideration (without interest) and the Common Unit Consideration shall be appropriately adjusted so that the aggregate amount payable pursuant to be paid in consideration therefor upon this Agreement to effect the surrender Merger Transactions shall not have increased as a result of such Certificates in accordance with Section 3.02adjustment. (g) Each share of Company Series B Preferred Stock issued and outstanding immediately prior to the Merger Effective Time shall remain outstanding as a share of Company Series B Preferred Stock of the Surviving Entity and shall otherwise be unaffected by the Merger Transactions.