Common use of Effect on Securities Clause in Contracts

Effect on Securities. At the Effective Time, pursuant to this Agreement and by virtue of the Merger and without any action on the part of the Company, Acquiror or the holders of any of the following securities: (a) Each share of Common Stock, par value $.01 per share, of the Company (collectively, the "Common Shares" and, individually, a "Common Share") issued and outstanding immediately prior to the Effective Time (other than any Common Shares to remain outstanding pursuant to Section 1.5(c)) shall be converted into the right to receive an amount equal to $12.00 in cash, without interest (the "Cash Merger Consideration"); the Common Shares being converted into the right to receive the Cash Merger Consideration are hereinafter referred to as "Cancelled Shares"; (b) Each issued and outstanding share of Preferred Stock, par value $0.01 per share, of the Company (collectively, the "Preferred Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger; (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders prior to the Effective Time in exchange for Partnership Units (as defined below) and, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares; (d) Each option for the purchase of Common Shares issued by the Company and outstanding immediately prior to the Effective Time (collectively, the "Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders, shall be terminated and converted into the right to receive the Option Consideration as defined and set forth in Section 1.10; (e) Each unit (as defined in the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Effective Time shall be converted automatically into one newly-issued, fully-paid and nonassessable share of Common Stock of the Surviving Corporation and shall cease to exist; and (f) Notwithstanding Subsection (c) above, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted in the Merger shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000.

Effect on Securities. (a) At the Effective Time, pursuant to this Agreement and by virtue of the Merger and without any action on the part of the Company, Acquiror Parent, Merger Sub or the holders of any securities of the following securitiesCompany or Merger Sub: (ai) Each share of Common Stockclass A common stock, par value $.01 0.001 per share, of the Company (collectivelythe “Company Common Stock”) held by the Company as treasury stock or held directly by Parent or Merger Sub immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, the "and no consideration or payment shall be delivered in exchange therefor or in respect thereof (such shares, “Canceled Shares”). (ii) Each share of Company Common Shares" and, individually, a "Common Share") Stock issued and outstanding immediately prior to the Effective Time (other than any Common Canceled Shares and Dissenting Shares) shall be automatically canceled and converted into the right to remain outstanding pursuant receive, in accordance with the terms of this Agreement (A) $26.45 per share in cash, without interest, from Parent (such amount of cash, the “Cash Consideration”), and (B) a number of validly issued, fully paid and nonassessable shares, par value EUR 0.59 per share, of Parent (the “Parent Shares”) equal to the Exchange Ratio (and, if applicable, cash in lieu of fractional Parent Shares payable in accordance with Section 1.5(c2.1(c)) shall (such Parent Shares and any such cash in lieu of fractional shares, together with the Cash Consideration, the “Merger Consideration”), subject to any required Tax withholding as provided in Section 2.8. Each share of Company Common Stock to be converted into the right to receive an amount equal the Merger Consideration as provided in this Section 2.1(a)(ii) shall no longer be outstanding and shall be automatically canceled and shall cease to $12.00 in cashexist, without interest and the holders of certificates (the "Cash Merger Consideration"“Certificates”) or book-entry shares (“Book-Entry Shares”); , which immediately prior to the Effective Time represented such Company Common Shares being converted into Stock, shall cease to have any rights with respect to such Company Common Stock other than the right to receive receive, upon surrender of such Certificates or Book-Entry Shares in accordance with Section 2.2, the Cash Merger Consideration are hereinafter referred to as "Cancelled Shares";Consideration. (biii) Each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be automatically canceled and converted into and become one (1) newly issued fully paid share of Preferred Stockcommon stock, par value $0.01 per share, of the Surviving Corporation. (b) Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the Effective Time, any change in the number or type of outstanding Parent Shares or Company Common Stock shall occur as a result of a reclassification, recapitalization, exchange, stock split (collectivelyincluding a reverse stock split), combination or readjustment of shares or any stock dividend or stock distribution with a record date during such period, the "Preferred Shares"Merger Consideration, the Exchange Ratio and any other similarly dependent items, as the case may be, shall be appropriately adjusted to provide the same economic effect as contemplated by this Agreement prior to such event. Nothing in this Section 2.1(b) shall not be converted, exchanged, cancelled construed to permit any party to take any action that is otherwise prohibited or otherwise affected restricted by the Merger and shall remain issued and outstanding after the Merger;any other provision of this Agreement. (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled No certificate or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders prior to the Effective Time in exchange for Partnership Units (as defined below) and, subject to Section 1.5(f) below, such Common scrip representing fractional Parent Shares shall be deemed issued upon the cancelation and conversion of Company Common Stock pursuant to Section 2.1(a)(ii), and such fractional share interests shall not entitle the owner thereof to any Parent Shares or to vote or to any other rights of a holder of Parent Shares. All fractional shares that a single record holder of Company Common Stock would be otherwise entitled to receive shall be aggregated and calculations shall be rounded to four (4) decimal places. In lieu of any such fractional shares, each record holder of Company Common Stock who would otherwise be entitled to such fractional shares shall be entitled to an amount in cash, without interest, rounded down to the nearest cent, equal to the product of (i) the amount of the fractional share interest in a share of Parent Shares to which such holder would, but for this Section 2.1(c), be entitled under Section 2.1(a)(ii) and (ii) the Parent Share Price. As soon as practicable after the determination of the amount of cash, if any, to be Continuing paid to holders of Company Common Stock in lieu of any fractional share interests in Parent Shares; (d) Each option for , the purchase of Common Shares issued by the Company and outstanding immediately prior Exchange Agent shall make available such amount, without interest, to the Effective Time (collectively, the "holders of Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders, shall be terminated and converted into the right Common Stock entitled to receive the Option Consideration as defined and set forth such cash. The payment of cash in lieu of fractional share interests pursuant to this Section 1.10; (e) Each unit (as defined in the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Effective Time shall be converted automatically into one newly-issued, fully-paid and nonassessable share of Common Stock of the Surviving Corporation and shall cease to exist; and (f) Notwithstanding Subsection (c) above, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted in the Merger shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.32.1(c) is less than $7,750,000not a separately bargained-for consideration.

Effect on Securities. At As of the Effective Time, pursuant to this Agreement and by virtue of the Merger and without any action on the part of Parent, MergerCo or the Company, Acquiror Company or the holders of any of the following securities: (a) Each MergerCo Membership Unit issued and outstanding immediately prior to the Effective Time shall remain outstanding as one Surviving Entity Membership Unit following the Merger. (b) Each share of Company Common StockStock that is owned by the Company, par value $.01 per share, by any wholly owned Subsidiary of the Company or by Parent, MergerCo or any other wholly owned Subsidiary of Parent shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor. (collectively, the "c) Each share of Company Common Shares" and, individually, a "Common Share") Stock issued and outstanding immediately prior to the Effective Time (other than any Common shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares to remain outstanding pursuant to as described in Section 1.5(c)2.4) (the “Company Merger Stock”) shall be converted into the right to receive an amount (i) the number of shares of Parent Class A Common Stock equal to $12.00 the Class A Exchange Ratio, (ii) the number of shares of Parent Common Stock equal to the Closing Common Exchange Ratio and (iii) the number of Escrow Shares equal to the Per Share Escrow Release Number, if any, upon release thereof pursuant to the Escrow Agreement (clause (i) and (ii), together with any cash paid in cashlieu of fractional shares with respect thereto in accordance with Section 2.2(i), without interest (the "Cash “Closing Merger Consideration"” and clause (iii); , together with any cash paid in lieu of fractional shares with respect thereto in accordance with Section 2.2(i) and the Common Shares being converted into Closing Merger Consideration, the “Merger Consideration”). Upon such conversion, all such shares of Company Merger Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each Company Certificate previously evidencing such shares shall thereafter represent only the right to receive the Cash Merger Consideration are hereinafter referred Consideration. The holders of Company Certificates previously evidencing shares of Company Merger Stock shall cease to as "Cancelled Shares"; (b) Each issued and outstanding share of Preferred Stock, par value $0.01 per share, of have any rights with respect to the Company (collectively, the "Preferred Shares") shall not be converted, exchanged, cancelled Merger Stock except as otherwise provided herein or otherwise affected by the Merger and shall remain issued and outstanding after the Merger; (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders prior to the Effective Time in exchange for Partnership Units (as defined below) Law and, subject to upon the surrender of Company Certificates in accordance with the provisions of Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares; (d) Each option for the purchase of Common Shares issued by the Company and outstanding immediately prior to the Effective Time (collectively, the "Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders2.2, shall be terminated and converted into only represent the right to receive the Option Merger Consideration as defined and set forth in Section 1.10;for their shares of Company Merger Stock. (ed) Each unit (as defined in the Acquiror's Operating The Exchange Agent shall make all computations contemplated by this Section 2.1 of this Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Effective Time all such computations shall be converted automatically into one newly-issued, fully-paid conclusive and nonassessable share binding on the holders of Company Common Stock of the Surviving Corporation and shall cease to exist; and (f) Notwithstanding Subsection (c) above, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted absent manifest error in the Merger shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000any such computation.

Effect on Securities. At Subject to the provisions of this Agreement: (a) at the Effective Time, pursuant to this Agreement and by virtue of the Merger and without any action on the part of any Company Exchange Person, subject to and upon the terms and subject to the conditions set forth herein (including without limitation delivery of the release contemplated by Section 3.4(a)(ii)), the transactions contemplated by the Omnibus Exchange Agreement (other than the Dissenting Shares) shall be consummated and the parties thereto shall be issued the applicable number of shares of PubCo Capital Stock. All of the Company Exchange Securities (all as referenced in the Omnibus Exchange Agreement) converted into the right to receive consideration as described in the Omnibus Exchange Agreement and in this Section 3.1(b) shall no longer be outstanding or obligations of the Company, Acquiror as applicable, and shall cease to exist, and each holder of Company Exchange Securities shall thereafter cease to have any rights with respect to such securities or debt, as applicable, except the holders right to receive the applicable consideration described in the Omnibus Exchange Agreement and in this Section 3.1(b) into which such shares of Company Capital Stock or debt, as applicable, shall have been converted in the Merger; (b) at the Effective Time, by virtue of the Merger and without any action on the part of any of the following securities: (a) Each holder thereof, each share of Common Stockcommon stock, par value $.01 0.0001 per share, of the Company (collectively, the "Common Shares" and, individually, a "Common Share") Merger Sub issued and outstanding immediately prior to the Effective Time (other than any Common Shares to remain shall no longer be outstanding pursuant to Section 1.5(c)) and shall thereupon be converted into the right to receive an amount equal to $12.00 in cash, without interest (the "Cash Merger Consideration"); the Common Shares being converted into the right to receive the Cash Merger Consideration are hereinafter referred to as "Cancelled Shares"; (b) Each and become one validly issued fully paid and outstanding non-assessable share of Preferred Stockcommon stock, par value $0.01 0.0001 per share, of the Surviving Company (collectively, and all such shares shall constitute the "Preferred Shares") shall not be converted, exchanged, cancelled or otherwise affected by only outstanding shares of capital stock of the Merger and shall remain issued and outstanding after Surviving Company as of immediately following the Merger;Effective Time; and (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered by virtue of the Merger and without any action on the part of any holder thereof, each share of Company Capital Stock held in the name treasury of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders prior to the Effective Time in exchange for Partnership Units (as defined below) and, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares; (d) Each option for the purchase of Common Shares issued by the Company and outstanding immediately prior to the Effective Time (collectively, the "Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders, shall be terminated and converted into the right to receive the Option Consideration as defined and set forth in Section 1.10; (e) Each unit (as defined in the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Effective Time shall be converted automatically into one newly-issued, fully-paid cancelled and nonassessable share of Common Stock of the Surviving Corporation and shall cease to exist; and (f) Notwithstanding Subsection (c) above, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted in the Merger no payment or distribution shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000made with respect thereto.

Effect on Securities. At Subject to the provisions of this Agreement: (a) at the Effective Time, pursuant to this Agreement and by virtue of the Merger and without any action on the part of the Companyany Company Stockholder, Acquiror or the holders of any subject to and in consideration of the following securities: (a) Each terms and conditions set forth herein, each share of Common Stock, par value $.01 per share, of the Company (collectively, the "Common Shares" and, individually, a "Common Share") Preferred Stock that is issued and outstanding immediately prior to the Effective Time (other than any Common Shares to remain outstanding pursuant to Section 1.5(cDissenting Shares)) , shall be converted into the right to receive an amount equal the (i) Per Share Company Preferred Cash Consideration in cash and (ii) Per Share Company Preferred Stock Consideration. All of the shares of Company Preferred Stock converted into the right to $12.00 receive consideration as described in cashthis Section 3.01(a) shall no longer be outstanding and shall cease to exist, and each holder of Company Preferred Stock shall thereafter cease to have any rights with respect to such securities (including any right to accrued but unpaid dividends), except the right to receive the applicable consideration described in this Section 3.01(a) into which such share of Company Preferred Stock shall have been converted into in the Merger; (b) at the Effective Time, by virtue of the Merger and without interest any action on the part of any Company Stockholder, subject to and in consideration of the terms and conditions set forth herein, each share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time (other than the "Cash Merger Consideration"Dissenting Shares); the Common Shares being , shall be converted into the right to receive the Cash Merger Consideration are hereinafter referred Per Share Company Common Stock Consideration. All of the shares of Company Common Stock converted into the right to receive consideration as "Cancelled Shares"described in this Section 3.01(b) shall no longer be outstanding and shall cease to exist, and each holder of Company Common Stock shall thereafter cease to have any rights with respect to such securities, except the right to receive the applicable consideration described in this Section 3.01(b) into which such share of Company Common Stock shall have been converted into in the Merger; (bc) Each at the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof, each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall no longer be outstanding and shall thereupon be converted into and become one validly issued, fully paid and non-assessable share of Preferred Stockcommon stock, par value $0.01 per share, of the Surviving Company (collectively, and all such shares shall constitute the "Preferred Shares") shall not be converted, exchanged, cancelled or otherwise affected by only outstanding shares of capital stock of the Merger and shall remain issued and outstanding after Surviving Company as of immediately following the Merger;Effective Time; and (cd) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered by virtue of the Merger and without any action on the part of any holder thereof, each share of Company Capital Stock held in the name treasury of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders prior to the Effective Time in exchange for Partnership Units (as defined below) and, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares; (d) Each option for the purchase of Common Shares issued by the Company and outstanding immediately prior to the Effective Time (collectively, the "Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders, shall be terminated and converted into the right to receive the Option Consideration as defined and set forth in Section 1.10; (e) Each unit (as defined in the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Effective Time shall be converted automatically into one newly-issued, fully-paid cancelled and nonassessable share of Common Stock of the Surviving Corporation and shall cease to exist; and (f) Notwithstanding Subsection (c) above, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted in the Merger no payment or distribution shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000made with respect thereto.

Effect on Securities. (a) At the First Effective Time, pursuant to this Agreement and by virtue of the First Merger and without any action on the part of the Company, Acquiror Parent, Merger Sub Inc., Merger Sub LLC or the holders of any securities of the following securitiesCompany, Merger Sub Inc. or Merger Sub LLC: (ai) Each share of Company Common StockStock held directly by Parent, par value $.01 per shareMerger Sub Inc. or Merger Sub LLC immediately prior to the First Effective Time shall automatically be canceled and retired and shall cease to exist, and no consideration or payment shall be delivered in exchange therefor or in respect thereof (such shares, “Canceled Shares”). (ii) Each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time (other than Canceled Shares) shall be automatically canceled and converted into the right to receive, at the election of the Company (collectivelyholder thereof in accordance with, and subject to, the "terms, conditions and procedures set forth in this Article II, the following consideration (collectively with, if applicable, cash in lieu of fractional shares of Parent Common Shares" andStock payable in accordance with Section 2.1(d), individuallythe “Merger Consideration”), in each case without interest and subject to any required Tax withholding as provided in Section 2.9: (A) each share of Company Common Stock with respect to which an election to receive a combination of stock and cash (a “Mixed Election”) has been effectively made and not revoked or changed pursuant to Section 2.2(e) (each, a "“Mixed Election Share”) and each No Election Share shall be converted into the right to receive the combination of (x) $7.20 in cash (the “Per Share Cash Amount”) and (y) 0.2192 shares of validly issued, fully paid and non-assessable shares of Parent Common Stock (the “Mixed Election Stock Exchange Ratio”); (B) each share of Company Common Stock with respect to which an election to receive only cash (a “Cash Election”) has been effectively made and not revoked or changed pursuant to Section 2.2(e) (each, a “Cash Election Share"”) shall be converted (provided that the Available Cash Election Amount equals or exceeds the Cash Election Amount) into the right to receive in cash an amount (rounded to two decimal places) (the “Per Share Cash Election Consideration”) equal to the sum of (i) the Per Share Cash Amount plus (ii) the product of the Mixed Election Stock Exchange Ratio multiplied by the Parent Common Stock Reference Price; provided, however, that if (x) the product of the number of Cash Election Shares and the Per Share Cash Election Consideration (such product being the “Cash Election Amount”) exceeds (y) the difference between (I) the product of the Per Share Cash Amount and the total number of shares of Company Common Stock (other than Canceled Shares) issued and outstanding immediately prior to the First Effective Time minus (other than any II) the product of (p) the number equal to the sum of the number of Mixed Election Shares and the number of No Election Shares and (q) the Per Share Cash Amount (such difference being the “Available Cash Election Amount”), then each Cash Election Share shall be converted into a right to receive (1) an amount of cash equal to the product (rounded to two decimal places) of (r) the Per Share Cash Election Consideration and (s) a fraction, the numerator of which shall be the Available Cash Election Amount and the denominator of which shall be the Cash Election Amount (such fraction being the “Cash Fraction”) and (2) a number of validly issued, fully paid and non-assessable shares of Parent Common Shares Stock equal to remain outstanding the product of (t) the Exchange Ratio and (u) one (1) minus the Cash Fraction; and (C) each share of Company Common Stock with respect to which an election to receive only stock consideration (a “Stock Election”) has been effectively made and not revoked or changed pursuant to Section 1.5(c2.2(e) (each, a “Stock Election Share”) shall be converted (provided that the Cash Election Amount equals or exceeds the Available Cash Election Amount), into a number of shares of validly issued, fully paid and non-assessable shares of Parent Common Stock (the “Exchange Ratio”) equal to (i) the Mixed Election Stock Exchange Ratio plus (ii) the quotient (rounded to four decimal places) of the Per Share Cash Amount divided by the Parent Common Stock Reference Price; provided, however, that if the Available Cash Election Amount exceeds the Cash Election Amount, then each Stock Election Share shall be converted into the right to receive (1) an amount of cash (without interest) equal to $12.00 the amount (rounded to two decimal places) of such excess divided by the number of Stock Election Shares and (2) a number of validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the product (rounded to four decimal places) of (x) the Exchange Ratio and (y) a fraction, the numerator of which shall be the Per Share Cash Election Consideration minus the amount calculated in cashclause (1) of this paragraph and the denominator of which shall be the Per Share Cash Election Consideration. For the avoidance of doubt, without interest in no event shall the aggregate cash payable to the holders of all shares of Company Common Stock under Article II in connection with the Mergers exceed the product of the Per Share Cash Amount and the total number of shares of Company Common Stock (other than Canceled Shares) issued and outstanding immediately prior to the "Cash Merger Consideration"); the First Effective Time. Each share of Company Common Shares being Stock to be converted into the right to receive the Cash Merger Consideration are hereinafter referred to as "Cancelled Shares"; (b) Each issued and outstanding share of Preferred Stock, par value $0.01 per share, of the Company (collectively, the "Preferred Shares"provided in this Section 2.1(a)(ii) shall not no longer be converted, exchanged, cancelled or otherwise affected by the Merger outstanding and shall remain issued be automatically canceled and outstanding after the Merger; (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name ofshall cease to exist, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇the holders of certificates (the “Certificates”) or book-entry shares (“Book-Entry Shares”), and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders which immediately prior to the First Effective Time represented such Company Common Stock, shall cease to have any rights with respect to such Company Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Shares in exchange for Partnership Units (as defined below) andaccordance with Section 2.3, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares;the Merger Consideration. (diii) Each option for the purchase share of Common Shares common stock, no par value, of Merger Sub Inc. issued by the Company and outstanding immediately prior to the First Effective Time (collectively, the "Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders, shall be terminated automatically canceled and converted into and become one (1) newly issued fully paid share of Class A common stock, no par value, of the right to receive Surviving Corporation (the Option Consideration as defined and set forth in Section 1.10;“Surviving Corporation Share”). (eb) Each unit At the Second Effective Time, by virtue of the Second Merger and without any action on the part of the Surviving Corporation, Parent, Merger Sub LLC or the holders of any securities of the Surviving Corporation or Merger Sub LLC, (as defined in i) the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," Surviving Corporation Share issued and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Second Effective Time shall be converted automatically into one newly-issued, fully-paid canceled and nonassessable share of Common Stock of the Surviving Corporation retired and shall cease to exist; and, and no consideration or payment shall be delivered in exchange therefor or in respect thereof, (ii) each Merger Sub LLC Common Interest shall remain outstanding as a limited liability company interest in the Surviving Entity, and (iii) Parent shall become the sole member of the Surviving Entity. (f) Notwithstanding Subsection (c) aboveWithout limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the First Effective Time, any change in the number or type of outstanding shares of Parent Common Stock or Company Common Stock shall occur as a result of a reclassification, recapitalization, exchange, stock split (including a reverse stock split), combination or readjustment of shares or any stock dividend or stock distribution with a record date during such period (but, for the avoidance of doubt, excluding any change that results from (i) the exercise or settlement of compensatory equity awards of Parent or the Company or (ii) the grant of equity-based compensation by Parent or the Company), the Merger Consideration (and components thereof) and any other similarly dependent items, as the case may be, shall be appropriately adjusted to provide the same economic effect as contemplated by this Agreement prior to such event. Nothing in this Section 2.1(c) shall be construed to permit any party to take any action that is otherwise prohibited or restricted by any other provision of this Agreement. (d) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the cancellation and conversion of Company Common Stock pursuant to Section 2.1(a)(ii), and such fractional share interests shall not entitle the owner thereof to any Parent Common Stock or to vote or to any other rights of a holder of Parent Common Stock. As promptly as practicable following the First Effective Time, the Exchange Agent shall determine the excess of (i) the number of full shares of Parent Common Stock delivered to the Exchange Agent by Parent for issuance to holders of Certificates or Book-Entry Shares over (ii) the aggregate number of Continuing full shares of Parent Common Stock to be distributed to holders of Certificates or Book-Entry Shares (such excess being herein referred to as the “Excess Shares”). As soon as practicable after the First Effective Time, the Exchange Agent, as agent for such holders of Certificates or Book-Entry Shares, shall sell the Excess Shares at then prevailing prices on the NYSE, all in the manner provided herein. The sale of the Excess Shares by the Exchange Agent shall be executed on the NYSE and shall be executed in round lots to the extent practicable. Until the net proceeds of any such sale or sales have been distributed to the holders of Certificates or Book-Entry Shares, the Exchange Agent shall hold such proceeds in trust for such holders. The net proceeds of any such sale or sales of Excess Shares to be distributed to the holders of Certificates or Book-Entry Shares shall be reduced by any and all commissions, transfer Taxes and other out-of-pocket transaction costs, as well as any expenses, of the Exchange Agent incurred in connection with such sale or sales. The Exchange Agent shall determine the portion of such net proceeds to which each holder of Certificates or Book-Entry Shares shall be entitled, if any, by multiplying the amount of the aggregate net proceeds by a fraction, the numerator of which is the amount of the fractional share interest to which such holder of Certificates or Book-Entry Shares is entitled (after taking into account all Certificates and Book-Entry Shares then held by such holder) and the Continuing Stockholders may, at denominator of which is the sole discretion aggregate amount of fractional share interests to which all holders of Certificates or Book-Entry Shares are entitled. As soon as practicable after the determination of the each Continuing Stockholderamount of cash, if any, to be decreased (and correspondinglypaid to holders of Certificates or Book-Entry Shares with respect to any fractional share interests, the number of Common Shares held by the Continuing Stockholders Exchange Agent shall promptly pay such amounts to be converted such holders subject to and in the Merger shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in accordance with this Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,0002.1(d).

Effect on Securities. At the Effective Time, pursuant to this Agreement and by virtue of the Merger and without any action on the part of the Company, Acquiror Parent or the holders of any shares of capital stock of the following securitiesCompany or Parent: (a) Each Subject to Section 2.1(e), each share of Company Common Stock, par value $.01 per share, of the Company (collectively, the "Common Shares" and, individually, a "Common Share") Stock issued and outstanding immediately prior to the Effective Time (other than any Cancelled Shares and Dissenting Shares held by stockholders who (i) have not voted in favor of the Merger or consented to it in writing and (ii) have properly demanded appraisal of such shares of Company Common Shares to remain outstanding pursuant to Stock in accordance with, and have complied in all respects with, the provisions of Section 1.5(c)262 of the DGCL) shall be automatically converted into the right to receive an amount equal to $12.00 in cash584.90 (the “Exchange Ratio”) validly issued, fully paid and nonassessable shares of Parent Common Stock (the “Merger Consideration”), without interest (interest, to be paid in accordance with and subject to the "Cash Merger Consideration"applicable provisions of this Agreement. From and after the Effective Time, all shares of Company Common Stock shall automatically be cancelled and extinguished and shall cease to exist, and subject to Section 2.1(d) with respect to Dissenting Shares and except as otherwise provided herein with respect to shares cancelled in accordance with Section 2.1(b); the Common Shares being converted into , each holder thereof shall cease to have any rights with respect thereto other than the right to receive the Cash Merger Consideration are hereinafter referred Consideration, without interest, in accordance with and subject to as "Cancelled Shares";the applicable provisions of this Agreement. (b) Each issued and outstanding share of Preferred Stock, par value $0.01 per share, of Company Common Stock that is owned by the Company (collectively, the "Preferred Shares"as treasury stock or otherwise) shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger; (c) 96,671 Parent or any of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders their respective Subsidiaries immediately prior to the Effective Time (the “Cancelled Shares”) shall automatically be cancelled and extinguished and shall cease to exist, and no consideration or payment shall be owed or delivered in exchange for Partnership Units (as defined below) and, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares;therefor or in respect thereof. (dc) Each option for the purchase share of Parent Common Shares Stock issued by the Company and outstanding immediately prior to the Effective Time (collectivelyfor the avoidance of doubt, excluding the "Company Options" Escrow Shares) shall (i) remain issued and individuallyoutstanding, a "Company Option"), including those held by and from and after the Continuing StockholdersEffective Time, shall be terminated represent one (1) share of Parent Common Stock and converted into (ii) entitle the holder thereof to the non-transferable contingent right to receive the Option Consideration as defined and set forth in Section 1.10; (e) Each unit (as defined in the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Effective Time shall be converted automatically into one newly-issued, fully-paid and nonassessable share of Common Stock a Pro Rata Share of the Surviving Corporation Escrow Asset distributed pursuant to and shall cease to exist; and (f) Notwithstanding Subsection (c) abovein accordance with Section 2.6, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted in the Merger shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000any.

Effect on Securities. At Subject to the provisions of this Agreement: (a) immediately prior to the Effective Time, pursuant each share of Company Preferred Stock that is issued and outstanding immediately prior to this Agreement such time shall automatically convert into a number of shares of Company Common Stock in accordance with the Company Certificate of Incorporation (collectively, the “Company Preferred Stock Conversion”). All of the shares of Company Preferred Stock converted into shares of Company Common Stock shall no longer be outstanding and shall cease to exist, and each holder of Company Preferred Stock shall thereafter cease to have any rights with respect to such securities; (b) at the Effective Time (and, for the avoidance of doubt, following the Company Preferred Stock Conversion), by virtue of the Merger and without any action on the part of any Company Stockholder, subject to and upon the Company, Acquiror or terms and subject to the holders of any conditions set forth herein (including without limitation delivery of the following securities: (a) Each release contemplated by Section 3.4(a)(ii)), each share of Company Common Stock, par value $.01 per share, of the Company (collectively, the "Common Shares" and, individually, a "Common Share") Stock that is issued and outstanding immediately prior to the Effective Time (other than any Common Shares to remain outstanding pursuant to Section 1.5(cthe Dissenting Shares)) , shall be converted into the right to receive an amount equal to $12.00 in cash, without interest (the "Cash applicable Per-Share Merger Consideration"); . All of the shares of Company Common Shares being Stock converted into the right to receive consideration as described in this Section 3.1(b) shall no longer be outstanding and shall cease to exist, and each holder of Company Common Stock shall thereafter cease to have any rights with respect to such securities, except the Cash Merger Consideration are hereinafter referred right to as "Cancelled Shares"; (breceive the applicable consideration described in this Section 3.1(b) Each issued and outstanding into which such share of Preferred Stock, par value $0.01 per share, of the Company (collectively, the "Preferred Shares") Common Stock shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after have been converted in the Merger; (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name by virtue of the applicable Continuing StockholderMerger and without any action on the part of any holder thereof, it being understood that additional Common Shares may be each share of common stock, par value $0.0001 per share, of Merger Sub issued to the Continuing Stockholders prior to the Effective Time in exchange for Partnership Units (as defined below) and, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares; (d) Each option for the purchase of Common Shares issued by the Company and outstanding immediately prior to the Effective Time (collectively, the "Company Options" shall no longer be outstanding and individually, a "Company Option"), including those held by the Continuing Stockholders, shall thereupon be terminated and converted into and become one validly issued fully paid and non-assessable share of common stock, par value $0.0001 per share, of the right to receive Surviving Company and all such shares shall constitute the Option Consideration only outstanding shares of capital stock of the Surviving Company as defined and set forth in Section 1.10;of immediately following the Effective Time; and (ed) Each unit (as defined at the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof, each share of Company Capital Stock held in the Acquiror's Operating Agreement dated as treasury of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding Company immediately prior to the Effective Time shall be converted automatically into one newly-issued, fully-paid cancelled and nonassessable share of Common Stock of the Surviving Corporation and shall cease to exist; and (f) Notwithstanding Subsection (c) above, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted in the Merger no payment or distribution shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000made with respect thereto.

Effect on Securities. (a) At the First Effective Time, pursuant to this Agreement and by virtue of the First Merger and without any action on the part of the Company, Acquiror Parent, Merger Sub Inc., Merger Sub LLC or the holders of any securities of the following securitiesCompany, Merger Sub Inc. or Merger Sub LLC: (ai) Each share of Company Common StockStock held directly by Parent, par value $.01 per shareMerger Sub Inc. or Merger Sub LLC immediately prior to the First Effective Time shall automatically be canceled and retired and shall cease to exist, and no consideration or payment shall be delivered in exchange therefor or in respect thereof (such shares, “Canceled Shares”). (ii) Each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time (other than Canceled Shares) shall be automatically canceled and converted into the right to receive, at the election of the Company (collectivelyholder thereof in accordance with, and subject to, the "terms, conditions and procedures set forth in this Article ‎II, the following consideration (collectively with, if applicable, cash in lieu of fractional shares of Parent Common Shares" andStock payable in accordance with Section ‎2.1(d), individuallythe “Merger Consideration”), in each case without interest and subject to any required Tax withholding as provided in Section ‎2.9: (A) each share of Company Common Stock with respect to which an election to receive a combination of stock and cash (a “Mixed Election”) has been effectively made and not revoked or changed pursuant to Section ‎2.2(e) (each, a "“Mixed Election Share”) and each No Election Share shall be converted into the right to receive the combination of (x) $7.20 in cash (the “Per Share Cash Amount”) and (y) 0.2192 shares of validly issued, fully paid and non-assessable shares of Parent Common Stock (the “Mixed Election Stock Exchange Ratio”); (B) each share of Company Common Stock with respect to which an election to receive only cash (a “Cash Election”) has been effectively made and not revoked or changed pursuant to Section ‎2.2(e) (each, a “Cash Election Share"”) shall be converted (provided that the Available Cash Election Amount equals or exceeds the Cash Election Amount) into the right to receive in cash an amount (rounded to two decimal places) (the “Per Share Cash Election Consideration”) equal to the sum of (i) the Per Share Cash Amount plus (ii) the product of the Mixed Election Stock Exchange Ratio multiplied by the Parent Common Stock Reference Price; provided, however, that if (x) the product of the number of Cash Election Shares and the Per Share Cash Election Consideration (such product being the “Cash Election Amount”) exceeds (y) the difference between (I) the product of the Per Share Cash Amount and the total number of shares of Company Common Stock (other than Canceled Shares) issued and outstanding immediately prior to the First Effective Time minus (other than any II) the product of (p) the number equal to the sum of the number of Mixed Election Shares and the number of No Election Shares and (q) the Per Share Cash Amount (such difference being the “Available Cash Election Amount”), then each Cash Election Share shall be converted into a right to receive (1) an amount of cash equal to the product (rounded to two decimal places) of (r) the Per Share Cash Election Consideration and (s) a fraction, the numerator of which shall be the Available Cash Election Amount and the denominator of which shall be the Cash Election Amount (such fraction being the “Cash Fraction”) and (2) a number of validly issued, fully paid and non-assessable shares of Parent Common Shares Stock equal to remain outstanding the product of (t) the Exchange Ratio and (u) one (1) minus the Cash Fraction; and (C) each share of Company Common Stock with respect to which an election to receive only stock consideration (a “Stock Election”) has been effectively made and not revoked or changed pursuant to Section 1.5(c‎2.2(e) (each, a “Stock Election Share”) shall be converted (provided that the Cash Election Amount equals or exceeds the Available Cash Election Amount), into a number of shares of validly issued, fully paid and non-assessable shares of Parent Common Stock (the “Exchange Ratio”) equal to (i) the Mixed Election Stock Exchange Ratio plus (ii) the quotient (rounded to four decimal places) of the Per Share Cash Amount divided by the Parent Common Stock Reference Price; provided, however, that if the Available Cash Election Amount exceeds the Cash Election Amount, then each Stock Election Share shall be converted into the right to receive (1) an amount of cash (without interest) equal to $12.00 the amount (rounded to two decimal places) of such excess divided by the number of Stock Election Shares and (2) a number of validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the product (rounded to four decimal places) of (x) the Exchange Ratio and (y) a fraction, the numerator of which shall be the Per Share Cash Election Consideration minus the amount calculated in cashclause (1) of this paragraph and the denominator of which shall be the Per Share Cash Election Consideration. For the avoidance of doubt, without interest in no event shall the aggregate cash payable to the holders of all shares of Company Common Stock under Article ‎II in connection with the Mergers exceed the product of the Per Share Cash Amount and the total number of shares of Company Common Stock (other than Canceled Shares) issued and outstanding immediately prior to the "Cash Merger Consideration"); the First Effective Time. Each share of Company Common Shares being Stock to be converted into the right to receive the Cash Merger Consideration are hereinafter referred to as "Cancelled Shares"; (b) Each issued and outstanding share of Preferred Stock, par value $0.01 per share, of the Company (collectively, the "Preferred Shares"provided in this Section ‎2.1(a)(ii) shall not no longer be converted, exchanged, cancelled or otherwise affected by the Merger outstanding and shall remain issued be automatically canceled and outstanding after the Merger; (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name ofshall cease to exist, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇the holders of certificates (the “Certificates”) or book-entry shares (“Book-Entry Shares”), and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders which immediately prior to the First Effective Time represented such Company Common Stock, shall cease to have any rights with respect to such Company Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Shares in exchange for Partnership Units (as defined below) andaccordance with Section ‎2.3, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares;the Merger Consideration. (diii) Each option for the purchase share of Common Shares common stock, no par value, of Merger Sub Inc. issued by the Company and outstanding immediately prior to the First Effective Time (collectively, the "Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders, shall be terminated automatically canceled and converted into and become one (1) newly issued fully paid share of Class A common stock, no par value, of the right to receive Surviving Corporation (the Option Consideration as defined and set forth in Section 1.10;“Surviving Corporation Share”). (eb) Each unit At the Second Effective Time, by virtue of the Second Merger and without any action on the part of the Surviving Corporation, Parent, Merger Sub LLC or the holders of any securities of the Surviving Corporation or Merger Sub LLC, (as defined in i) the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," Surviving Corporation Share issued and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Second Effective Time shall be converted automatically into one newly-issued, fully-paid canceled and nonassessable share of Common Stock of the Surviving Corporation retired and shall cease to exist; and, and no consideration or payment shall be delivered in exchange therefor or in respect thereof, (ii) each Merger Sub LLC Common Interest shall remain outstanding as a limited liability company interest in the Surviving Entity, and (iii) Parent shall become the sole member of the Surviving Entity. (f) Notwithstanding Subsection (c) aboveWithout limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the First Effective Time, any change in the number or type of outstanding shares of Parent Common Stock or Company Common Stock shall occur as a result of a reclassification, recapitalization, exchange, stock split (including a reverse stock split), combination or readjustment of shares or any stock dividend or stock distribution with a record date during such period (but, for the avoidance of doubt, excluding any change that results from (i) the exercise or settlement of compensatory equity awards of Parent or the Company or (ii) the grant of equity-based compensation by Parent or the Company), the Merger Consideration (and components thereof) and any other similarly dependent items, as the case may be, shall be appropriately adjusted to provide the same economic effect as contemplated by this Agreement prior to such event. Nothing in this Section ‎2.1(c) shall be construed to permit any party to take any action that is otherwise prohibited or restricted by any other provision of this Agreement. (d) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the cancellation and conversion of Company Common Stock pursuant to Section ‎2.1(a)(ii), and such fractional share interests shall not entitle the owner thereof to any Parent Common Stock or to vote or to any other rights of a holder of Parent Common Stock. As promptly as practicable following the First Effective Time, the Exchange Agent shall determine the excess of (i) the number of full shares of Parent Common Stock delivered to the Exchange Agent by Parent for issuance to holders of Certificates or Book-Entry Shares over (ii) the aggregate number of Continuing full shares of Parent Common Stock to be distributed to holders of Certificates or Book-Entry Shares (such excess being herein referred to as the “Excess Shares”). As soon as practicable after the First Effective Time, the Exchange Agent, as agent for such holders of Certificates or Book-Entry Shares, shall sell the Excess Shares at then prevailing prices on the NYSE, all in the manner provided herein. The sale of the Excess Shares by the Exchange Agent shall be executed on the NYSE and shall be executed in round lots to the extent practicable. Until the net proceeds of any such sale or sales have been distributed to the holders of Certificates or Book-Entry Shares, the Exchange Agent shall hold such proceeds in trust for such holders. The net proceeds of any such sale or sales of Excess Shares to be distributed to the holders of Certificates or Book-Entry Shares shall be reduced by any and all commissions, transfer Taxes and other out-of-pocket transaction costs, as well as any expenses, of the Exchange Agent incurred in connection with such sale or sales. The Exchange Agent shall determine the portion of such net proceeds to which each holder of Certificates or Book-Entry Shares shall be entitled, if any, by multiplying the amount of the aggregate net proceeds by a fraction, the numerator of which is the amount of the fractional share interest to which such holder of Certificates or Book-Entry Shares is entitled (after taking into account all Certificates and Book-Entry Shares then held by such holder) and the Continuing Stockholders may, at denominator of which is the sole discretion aggregate amount of fractional share interests to which all holders of Certificates or Book-Entry Shares are entitled. As soon as practicable after the determination of the each Continuing Stockholderamount of cash, if any, to be decreased (and correspondinglypaid to holders of Certificates or Book-Entry Shares with respect to any fractional share interests, the number of Common Shares held by the Continuing Stockholders Exchange Agent shall promptly pay such amounts to be converted such holders subject to and in the Merger shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in accordance with this Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000‎2.1(d).

Effect on Securities. At the Effective Time, pursuant to this Agreement and by By virtue of the Merger and without any action on the part of the Company, Acquiror either Constituent Corporation or the holders of any holder of the following securitiescapital stock thereof, at the Effective Time: (a) Each share of Common Stockcommon stock, $1.00 par value $.01 per share, of Newco issued and outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and nonassessable share of common stock of the Surviving Corporation; (b) Each Share that is held in the treasury of the Company or by any Subsidiary immediately prior to the Effective Time shall be canceled and retired, and no consideration shall be paid or delivered in exchange therefor; (collectivelyc) Each Share issued and outstanding immediately prior to the Effective Time and registered in the name of Parent or Newco shall not be converted but shall be canceled and retired, the "Common Shares" and no consideration shall be paid or delivered in exchange therefor; and, individually, a "Common Share" (d) Each Share issued and outstanding immediately prior to the Effective Time (other than any Common Shares referred to remain outstanding pursuant in Section 2.5(b) or 2.5(c) above and Dissenting Shares (which are to be treated in accordance with Section 1.5(c2.8)) shall be converted into the right to receive receive, upon surrender of the certificate formerly representing such Share, in the manner provided below, an amount equal to $12.00 in cash, without interest interest, equal to the Offer Price or any higher price paid for each Share in the Offer (the "Cash Merger Consideration"); . As of the Common Shares being converted into Effective Time, each such -------------------- remaining Share shall no longer be issued and outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such Share shall cease to have any rights with respect thereto, except the right to receive the Cash Merger Consideration are hereinafter referred to as "Cancelled Shares"; (b) Each issued and outstanding share of Preferred StockConsideration, par value $0.01 per share, of the Company (collectively, the "Preferred Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger; (c) 96,671 of the 360,422 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and 74,674 of the 285,923 Common Shares that are, on the date of this Agreement, registered in the name of, and specified by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (such persons are individually referred to as a "Continuing Stockholder" and collectively as the "Continuing Stockholders," and such shares are collectively referred to as the "Continuing Shares") shall not be converted, exchanged, cancelled or otherwise affected by the Merger and shall remain issued and outstanding after the Merger, provided that the Continuing Shares are, at the Effective Time, so registered in the name of the applicable Continuing Stockholder, it being understood that additional Common Shares may be issued to the Continuing Stockholders prior to the Effective Time in exchange for Partnership Units (as defined below) and, subject to Section 1.5(f) below, such Common Shares shall be deemed to be Continuing Shares; (d) Each option for the purchase of Common Shares issued by the Company and outstanding immediately prior to the Effective Time (collectively, the "Company Options" and individually, a "Company Option"), including those held by the Continuing Stockholders, shall be terminated and converted into the right to receive the Option Consideration as defined and set forth in Section 1.10; (e) Each unit (as defined in the Acquiror's Operating Agreement dated as of May 4, 2001) (collectively, the "Acquiror Units," and individually, an "Acquiror Unit") of Acquiror outstanding immediately prior to the Effective Time shall be converted automatically into one newly-issued, fully-paid and nonassessable share of Common Stock of the Surviving Corporation and shall cease to exist; and (f) Notwithstanding Subsection (c) above, the aggregate number of Continuing Shares held by the Continuing Stockholders may, at the sole discretion of the each Continuing Stockholder, be decreased (and correspondingly, the number of Common Shares held by the Continuing Stockholders to be converted in the Merger shall be increased) if the aggregate purchase price of the Preferred Stock (as defined in Section 2.4) tendered in the Offer (as defined in Section 5.3) is less than $7,750,000without interest.