Common use of The Merger Clause in Contracts

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, at the Effective Time (as defined in Section 1.4), the Company and Sub shall consummate the Merger in accordance with the DGCL, at MBCA and the Effective Time, Merger DGCL pursuant to which (i) Sub shall will be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall will thereupon cease, and ; (ii) the Company shall continue as will be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary will continue to be governed by the Laws of Parent the State of Michigan; (iii) the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises will continue unaffected by the Merger; and (iv) the Company will succeed to and assume all the rights and obligations of Sub. The corporation surviving the Merger is sometimes hereinafter referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement the MBCA and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At The articles of incorporation of the Company immediately prior to the Effective Time shall, from and after the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other PersonMerger, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. (subject c) The bylaws of the Company immediately prior to Section 5.8). In additionthe Effective Time shall, at from and after the Effective Time, by virtue of the Merger and without the necessity of any further action by on the part of the Company or any other PersonSub, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personMBCA, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsuch bylaws. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the satisfaction or written waiver (where permitted by applicable Law) of the conditions set forth in this AgreementArticle VII, and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The At the Effective Time, the Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation shall, by virtue of the Merger, be amended so as to read in its entirety in the form set forth as Exhibit A hereto, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation shall be amended so as to read in their entirety in the form set forth as Exhibit B hereto, until thereafter changed or amended as provided therein therein, in the certificate of incorporation of the Surviving Corporation or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as be the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger the Company and Sub shall consummate a merger (the “Merger”) in accordance with the DGCL pursuant to which (i) Sub will be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall will thereupon cease, and ; (ii) the Company shall continue as will be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary will continue to be governed by the Laws of Parent the State of Delaware; (iii) the corporate existence of the Company with all its rights, privileges, powers and franchises will continue; and (iv) the Company will succeed to and assume all the rights and obligations of Sub. The corporation surviving the Merger is sometimes hereinafter referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany shall, as by virtue of the Merger, be amended and restated in its entirety to be in the form attached hereto of Annex III and, as Exhibit Aso amended, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. (subject to Section 5.8). In addition, at c) At the Effective Time, by virtue of the Merger and without the necessity of any further action by on the part of the Company or any other PersonSub, the bylaws of the Company, as Company shall be amended and restated in the form attached hereto as Exhibit B, shall their entirety to be identical to the bylaws of Sub as in effect immediately prior to the Effective Time (except that such bylaws shall be amended to reflect that the name of the Surviving Corporation shall be Adolor Corporation), and such bylaws and, as so amended, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personDGCL, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsuch bylaws. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, at the Effective Time (as defined in Section 1.4), the Company and Sub shall consummate a merger (the “Merger”) in accordance with the DGCL, at the Effective Time, Merger DGCL pursuant to which (i) Sub shall will be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall will thereupon cease, and ; (ii) the Company shall continue as will be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary will continue to be governed by the Laws of Parent the State of Delaware; (iii) the corporate existence of the Company with all its properties, rights, privileges, immunities, powers and franchises will continue; and (iv) the Company will succeed to and assume all the rights and obligations of Sub. The corporation surviving the Merger is sometimes hereinafter referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany shall, as by virtue of the Merger, be amended and restated in its entirety to read in the form attached of Annex I hereto and, as Exhibit Aso amended, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. (subject to Section 5.8). In addition, at c) At the Effective Time, by virtue of the Merger and without the necessity of any further action by on the part of the Company or any other PersonSub, the bylaws of the Company, as Company shall be amended and restated in the form attached hereto as Exhibit B, shall their entirety to be identical to the bylaws of Sub as in effect immediately prior to the Effective Time (except that such bylaws shall be amended to reflect that the name of the Surviving CorporationCorporation shall be Power Medical Interventions, and such bylaws Inc.), and, as so amended, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personDGCL, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsuch bylaws. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the satisfaction or, to the extent provided herein, the waiver, of the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall will be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall will cease, and the Company shall will continue as the surviving corporation of in the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall will have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall will vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall will become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany will, by virtue of the Merger, be amended so as to read in its entirety in the form set forth as Exhibit A hereto, and as so amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of Merger Sub in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit B, Effective Time shall be the bylaws of the Surviving Corporation, and such bylaws shall thereafter be the bylaws of the Surviving Corporation (other than in respect of the name of the Surviving Corporation), until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of will, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after the Effective Time, shall continue as will be the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determinedetermines, in its sole discretion, or shall be is advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), at the Effective Time, Time (as defined below) Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany shall, as subject to Section 5.12(b), be amended and restated in the form attached hereto as Exhibit A, shall be its entirety to read identically to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving CorporationCorporation shall be “Zipcar, Inc.” (and such certificate of incorporation excluding any provisions with respect to the incorporator or the initial directors) and, as so amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the CompanyCompany shall, as subject to Section 5.12(b), be amended and restated in the form attached hereto as Exhibit B, shall be their entirety to read identically to the bylaws of Merger Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving CorporationCorporation as used therein shall be “Zipcar, and such bylaws Inc.” and, as so amended, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, The parties shall take all actions necessary so that the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective TimeTime shall, from and after the Effective Time, shall continue as be the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after After the Effective Time, if the Surviving Corporation shall determine, in its sole discretion, determine or shall be advised, advised that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective TimeTime (as defined herein), Merger Sub shall be merged with and into MailKey (the Company. As a result "MERGER") in accordance with the provisions of the MergerGeneral Corporation Law of the State of Delaware (the "DGCL") and the corporate laws of the British Virgin Islands ("BVI"), the separate corporate existence of Merger Sub shall cease, cease and the Company MailKey shall continue as the surviving corporation (the "SURVIVING CORPORATION") under the laws of the BVI. (b) The Merger shall become effective upon the later of (i) the filing and acceptance of a wholly-owned Subsidiary certificate of Parent merger with the Secretary of State of the State of Delaware (the “Surviving Corporation”"CERTIFICATE OF MERGER") in accordance with the provisions of Section 252 of the DGCL; and (ii) the filing and acceptance of a certificate of merger with the Registrar of International Companies of BVI (the "BVI CERTIFICATE OF MERGER"). The date and time when the Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are effective is referred to herein as the “Transactions"EFFECTIVE TIME.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)." (c) At the Effective Time, by virtue : (i) MailKey shall continue its existence under the laws of the Merger BVI as the Surviving Corporation; (ii) the separate corporate existence of Sub shall cease; (iii) all rights, title and interests to all assets, whether tangible or intangible and any property or property rights owned by Sub shall be allocated to and vested in the Surviving Corporation without reversion or impairment, without further act or deed, and without the necessity any transfer or assignment having occurred, but subject to any existing liens or other Encumbrances thereon, and all liabilities and obligations of further action by the Company or any other person, the directors of Merger Sub immediately prior shall be allocated to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each which shall be the primary obligor therefor and, except as otherwise provided by law or contract, no other party to hold officethe Merger, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of other than the Surviving Corporation. The officers , shall be liable therefor; and (iv) Each of Sub and MailKey shall execute and deliver, and file or cause to be filed with the Secretary of State of the Company State of Delaware the Certificate of Merger, and with the Registrar of International Companies of the BVI the BVI Certificate of Merger with such amendments thereto as the parties hereto shall deem mutually acceptable. (d) MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION. (i) The Memorandum of Association of MailKey, as in effect immediately prior to the Effective Time, from and after shall be the Memorandum of Association of the Surviving Company until thereafter amended as provided therein or by applicable law. (ii) The Articles of Association of MailKey, as in effect immediately prior to the Effective Time, shall continue as be the officers Articles of Association of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation Company until their respective successors shall have been duly elected, designated thereafter amended as provided therein or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationby applicable law. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation Surviving Corporation of the Merger and as a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective TimeTime and, subject to the Real Estate Purchase, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The OfferMerger, the Merger Real Estate Purchase and the other transactions contemplated by this Agreement and the Real Estate Purchase Agreement are referred to herein as the “Transactions”, and the Transactions excluding the distribution, transfer or sale of the Aruba Operations and the Insight Disposition are referred to herein as the “Acquiror Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as Surviving Corporation shall be amended and restated so as to read in its entirety in the form attached hereto set forth as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationC hereto, and such certificate of incorporation as so amended and restated shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form set forth as Exhibit D hereto, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after Time or such other individuals designated by Parent as of the Effective Time, Time shall continue as become the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation or Gamma, as applicable, its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation or Gamma, as applicable, as a result of, or in connection with, the Merger Transactions or otherwise to carry out this AgreementAgreement and the Ancillary Agreements, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or Gamma, as applicable, or otherwise to carry out this AgreementAgreement and the Ancillary Agreements.

The Merger. (a) Upon On the terms and subject to the conditions set forth in of this Agreement, the Company and Merger Sub will consummate the Merger in accordance with the DGCL, such that, at the Effective Time, (i) Merger Sub shall will be merged with and into the Company. As a result of the Merger, and the separate corporate existence of Merger Sub shall will thereupon cease, and (ii) the Company shall continue as will be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary will continue to be governed by the Laws of Parent the State of Delaware, (iii) the corporate existence of the Company with all its rights, privileges, immunities, powers, objects and purposes will continue and (iv) the Company will automatically assume all the rights and obligations of Merger Sub. The corporation surviving the Merger is sometimes referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall will have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers powers, objects and franchises purposes of the Company and Merger Sub shall vest will be vested in the Surviving Corporation, and all of the claims, debts, liabilities and duties obligations of the Company and Merger Sub shall become will be the claims, debts, liabilities and duties obligations of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany will, as by virtue of the Merger, be amended and restated in the form attached hereto its entirety to be as Exhibit Aset forth in Annex II and, shall be the certificate of incorporation of the Surviving Corporationas so amended, and such certificate of incorporation shall will be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. The name of the Surviving Corporation will be “Seagen Inc.” (subject to Section 5.8). In addition, at c) At the Effective Time, by virtue of the Merger and without the necessity of any further action by on the part of the Company or any other PersonMerger Sub, the bylaws of the Company, as Company will be amended and restated in the form attached hereto as Exhibit B, shall their entirety to be identical to the bylaws of Merger Sub as in effect immediately prior to the Effective Time, except that all references therein to Merger Sub will be deemed to be references to the Surviving Corporation, and such bylaws shall and, as so amended, will be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon On the terms and subject to the conditions set forth in of this Agreement, the Company and Merger Sub will consummate the Merger in accordance with the DGCLBVI Act, such that, at the Effective Time, (i) Merger Sub shall will be merged with and into the Company. As a result of the Merger, and the separate corporate existence of Merger Sub shall will thereupon cease, (ii) the Company will be the successor or surviving company in the Merger and will continue to be governed by the Laws of the British Virgin Islands, (iii) the corporate existence of the Company with all its rights, privileges, immunities, powers, objects and purposes will continue and (iv) the Company will automatically assume all the rights and obligations of Merger Sub; provided, that in the event the Closing has not occurred on or prior to December 30, 2022, Parent may elect in its sole discretion to consummate the Merger in accordance with Section 1.1 of the Company Disclosure Letter (and otherwise in accordance with the steps plan attached as Schedule H to the Separation and Distribution Agreement) rather than in accordance with the provisions of this Section 1.1 and the Company shall continue as the surviving corporation parties hereto will cooperate and use reasonable best efforts to amend necessary documentation, obtain consents and otherwise to further consummation of the Merger and a wholly-owned Subsidiary in accordance with the step plan set forth on Section 1.1 of Parent (the Company Disclosure Letter. The company surviving the Merger is sometimes referred to pursuant to the BVI Act as the “Surviving Corporation”). Company.” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall will have the effects set forth in this Agreement and the applicable provisions of the DGCLBVI Act. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers powers, objects and franchises purposes of the Company and Merger Sub shall vest will be vested in the Surviving CorporationCompany, and all of the claims, debts, liabilities and duties obligations of the Company and Merger Sub shall become will be the claims, debts, liabilities and duties obligations of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsCompany.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth herein and in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, the Company Certificate shall, by virtue of the Merger and without the necessity of further action by the Company or any other PersonMerger, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the CompanyPurchaser, as amended and restated in effect immediately prior to the form attached hereto as Exhibit BEffective Time, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoingforegoing and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities Liabilities and duties of the Company and Merger Sub shall become the debts, liabilities Liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, the Company Certificate shall, subject to Section 5.08, by virtue of or in connection with the Merger and without the necessity of further action by the Company or any other PersonMerger, the certificate of incorporation of the Company, as be amended and restated in the form attached hereto its entirety to read as set forth in Exhibit AA and, shall be the certificate of incorporation of the Surviving Corporationas so amended, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or further amended as provided therein or by applicable Law Law. (subject to Section 5.8). In addition, at c) At the Effective Time, by virtue and without any further action on the part of the Company and Merger and without the necessity of further action by Sub, the Company or any other Person, the bylaws of the Company, as Bylaws shall be amended and restated in the form attached hereto their entirety to read as Exhibit B, shall be the bylaws of Merger Sub as in effect immediately prior to the Effective Time, except that all references therein to Merger Sub shall be automatically amended and shall become references to the Surviving CorporationCorporation and, and such bylaws as so amended, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (cd) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective TimeTime shall, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (de) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLIBCA, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The At the Effective Time, the effects of the Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth as provided in this Agreement and the applicable provisions of the DGCLIBCA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate articles of incorporation of Merger Sub as in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit A, Effective Time shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or herein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of Merger Sub as in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws Effective Time shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, The Parties shall take all actions necessary so that the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after After the Effective Time, if the Surviving Corporation shall determine, in its sole discretion, determine or shall be advised, advised that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon On the terms and subject to the conditions set forth in of this Agreement, at the Effective Time, the Company and Merger Sub will consummate the Merger in accordance with the DGCL, such that, at the Effective Time, (i) Merger Sub shall will be merged with and into the Company. As a result of the Merger, and the separate corporate existence of Merger Sub shall will thereupon cease, and (ii) the Company shall continue as will be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary will continue to be governed by the Laws of Parent the State of Delaware, (iii) the corporate existence of the Company with all of its rights, privileges, powers and franchises will continue and (iv) the Company will succeed to and assume all the rights and obligations of Merger Sub. The corporation surviving the Merger is sometimes referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall will have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest will be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become will be the debts, liabilities and duties of the Surviving Corporation. The Offer, including, without limitation, those liabilities set forth in Section 1.1(a) of the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsCompany Disclosure Letter.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany will, as by virtue of the Merger, be amended and restated in the form attached hereto its entirety to be as Exhibit Aset forth in Annex II and, shall be the certificate of incorporation of the Surviving Corporationas so amended, and such certificate of incorporation shall will be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. The name of the Surviving Corporation will be Asensus Surgical, Inc. (subject to Section 5.8). In addition, at c) At the Effective Time, by virtue of the Merger and without the necessity of any further action by on the part of the Company or any other PersonMerger Sub, the bylaws of the Company, as Company will be amended and restated in the form attached hereto as Exhibit B, shall their entirety to be identical to the bylaws of Merger Sub as in effect immediately prior to the Effective Time, except that all references therein to Merger Sub will be deemed to be references to the Surviving Corporation, and such bylaws shall and, as so amended, will be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Pursuant to the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “"Surviving Corporation”"). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be (i) the certificate of incorporation of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form set forth as Exhibit A hereto, and such certificate of incorporation as so amended shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law and (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be ii) the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form set forth as Exhibit B hereto, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors and officers of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors and officers of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCLNYBCL, at the Effective TimeTime (as defined in Section 2.2 hereof), Merger Sub the Company and Purchaser shall consummate a merger (the "Merger") pursuant to which (x) Purchaser shall be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub Purchaser shall cease, thereupon cease and (y) the Company shall continue as be the surviving corporation in the Merger (sometimes hereinafter referred to as the "Surviving Corporation") and shall continue to be governed by the Laws of the Merger and a wholly-owned Subsidiary State of Parent New York. (the “Surviving Corporation”). The Merger shall be effected pursuant b) Pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoingMerger, at the Effective Time, all the Certificate of Incorporation and By-Laws of the propertyPurchaser, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest as in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred effect immediately prior to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation and by-laws of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation each until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other PersonNYBCL, except that the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, name shall be the bylaws of the Surviving Corporationchanged to "Detection Systems, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Inc.". (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of Purchaser at the Effective Time shall become be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been are duly elected, designated or qualified, elected and qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation's certificate of incorporation and bylaws of the Surviving Corporationby-laws. The officers of the Company immediately prior to at the Effective Time, from and after Time shall be the Effective Time, shall continue as the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been are duly elected, designated or qualified, elected and qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation's certificate of incorporation and bylaws of the Surviving Corporationby-laws. (d) If, at any time after The Merger shall have the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise effects specified in the Surviving Corporation its right, title or interest in, to or under any applicable provisions of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementNYBCL.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, the Company and Merger Sub shall consummate the Merger, pursuant to which (i) Merger Sub shall be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall thereupon cease, and (ii) the Company shall continue as be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary of Parent (shall continue to be governed by the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions Laws of the DGCL. Without limiting State of New York, and (iii) the generality separate corporate existence of the foregoing, at the Effective Time, Company with all of the property, its rights, privileges, immunities, powers and franchises of shall continue unaffected by the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving CorporationMerger. The Offer, corporation surviving the Merger and other transactions contemplated by this Agreement are is sometimes hereinafter referred to herein as the “TransactionsSurviving Corporation.” The Merger shall have the effects set forth herein and in the applicable provisions of the New York Business Corporation Law (the “NYBCL”). (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationCorporation shall be amended and restated in its entirety to read identically to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time, and such amended and restated certificate of incorporation shall be become the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by in accordance with the applicable Law (subject to Section 5.8). In additionprovisions of the NYBCL and such certificate of incorporation; provided, however, that at the Effective Time, by virtue Time the certificate of incorporation of the Merger and without Surviving Corporation shall be amended so that the necessity name of further action by the Company or any other Person, the Surviving Corporation shall be “Sonesta International Hotels Corporation”. (c) The bylaws of the CompanyMerger Sub, as amended and restated in effect immediately prior to the form attached hereto as Exhibit BEffective Time, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended except as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors name of the Surviving Corporation, each to hold officewhich shall be “Sonesta International Hotels Corporation” until thereafter amended as provided by Law, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsuch bylaws. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, the Company Certificate shall, by virtue of the Merger and without the necessity of further action by the Company or any other PersonMerger, the certificate of incorporation of the Company, as be amended and restated in the form attached hereto its entirety to read as set forth on Exhibit AA and, shall be the certificate of incorporation of the Surviving Corporationas so amended, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or further amended as provided therein or by applicable Law (subject in accordance with the DGCL. The bylaws of the Purchaser, as in effect immediately prior to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws except that all references therein to the Purchaser shall be the bylaws of deemed to be references to the Surviving Corporation Corporation, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Subject to receiving the requisite approvals of Target Fund Shareholders and the Acquiring Fund Shareholders, and to the other terms and conditions contained herein, and in accordance with the DSTA, at the Effective Time the Target Fund shall be merged with and into the Acquiring Fund (the “Merger”), the separate existence of the Target Fund as a Delaware statutory trust and registered investment company shall cease and the Acquiring Fund shall continue as the surviving entity following the Merger. The existence of the Acquiring Fund shall continue unaffected and unimpaired by the Merger and it shall be governed by the DSTA. Each Acquiring Fund Common Share outstanding immediately prior to the Effective Time shall remain outstanding upon the Effective Time and shall be unaffected by the Merger. Each of the certificate of trust, the Declaration of Trust and the By-Laws of the Acquiring Fund shall be, respectively, the certificate of trust, the Declaration of Trust and the By-Laws of the Acquiring Fund as the entity surviving the Merger. The Trustees and officers of the Acquiring Fund shall remain the Trustees and officers of the Acquiring Fund as the entity surviving the Merger. (b) Upon the terms and subject to the conditions set forth in of this Agreement, and on the Closing Date, the parties shall cause the Merger to be consummated by filing a certificate of merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)DSTA. The Merger shall be effected pursuant to become effective at such time as the Section 251(h) Certificate of DGCL and shall have Merger is duly filed with the effects set forth in this Agreement and the applicable provisions Secretary of State of the DGCL. Without limiting State of Delaware, or at such subsequent date or time as the generality Funds shall agree and specify in the Certificate of Merger (the foregoing, at the “Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue the effect of the Merger shall be as provided in the applicable provisions of the DSTA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise provided herein, all the property, rights, privileges, powers and franchises of the Target Fund shall vest in the Acquiring Fund, and all debts, liabilities, obligations, and duties of the Target Fund shall become the debts, liabilities, obligations, and duties of the Acquiring Fund. (d) Prior to the Closing Date, the Target Fund shall declare a dividend or dividends which, together with all such previous dividends, shall have the effect of distributing to its shareholders with respect to the taxable year ending with the Closing Date and all previous taxable years (i) all of its investment company taxable income recognized up to and including the Closing Date, if any (computed without regard to any deduction for dividends paid), (ii) all of its net capital gain, if any, recognized up to and including the necessity Closing Date and (iii) the excess of further action its interest income excludable from gross income under Section 103(a) of the Code, if any, over its deductions disallowed under Sections 265 and 171(a)(2) of the Code recognized up to and including the Closing Date (collectively referred to as “Final Distributions”). The Acquiring Fund may pay amounts in respect of Final Distributions to the persons and entities who were Target Fund Shareholders (as of the record date fixed to determine the entitlement to the Final Distributions) after the Closing Date out of cash or other short-term liquid assets that have matured prior to the payment date of the Final Distributions and that were acquired by the Company or any other personAcquiring Fund as a result of the Merger, segregated for this purpose and maintained in an amount at least equal to the remaining payment obligations in respect of the Final Distributions. (e) Pursuant to this Agreement, as soon as practicable after the Closing Date, the directors Acquiring Fund will issue and deliver Acquiring Fund Common Shares to the persons or entities who were Target Fund Shareholders as of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate provisions of incorporation and bylaws this Agreement. Such delivery shall be accomplished by the opening of shareholder accounts on the share ledger records of the Surviving Corporation until Acquiring Fund in the names of and in the amounts due to such former Target Fund Shareholders based on their respective successors holdings in the Target Fund as of the Valuation Time. (f) The Valuation Time shall have been duly elected, designated or qualifiedbe at the close of business of the New York Stock Exchange on the business day immediately preceding the Closing Date, or until their such earlier death, resignation or removal later day and time as may be mutually agreed upon in accordance with writing by the certificate Funds (the “Valuation Time”). (g) The Target Fund and the Acquiring Fund covenant and agree to dispose of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately certain assets prior to the Effective TimeClosing Date, from but only if and after to the Effective Timeextent necessary, shall continue so that at Closing (as defined in Section 7(a) herein), when the officers Target Fund’s assets are added to the Acquiring Fund’s portfolio, the resulting portfolio will meet the Acquiring Fund’s investment objective, policies and restrictions. Notwithstanding the foregoing, nothing herein will require the Target Fund to dispose of any portion of its assets if, in the reasonable judgment of the Surviving CorporationTarget Fund’s Board of Trustees or officers, each to hold office such disposition would create more than an insignificant risk that the Merger would not be treated as a “reorganization” described in accordance with the certificate of incorporation and bylaws Section 368(a) of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving CorporationCode. (dh) If, at any time after the Effective TimeFor U.S. federal income tax purposes, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, parties to this Agreement intend that any deeds, bills (i) the Merger qualify as a reorganization within the meaning of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any Section 368(a) of the rightsCode, properties or assets (ii) this Agreement constitutes a plan of either reorganization within the meaning of U.S. Treasury Regulations Section 1.368-2(g), and (iii) the parties to this Agreement will each be a party to such reorganization within the meaning of Section 368(b) of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementCode.

The Merger. (a) Upon At the terms Closing, the parties shall cause the Merger to be consummated by filing with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”) a certificate of merger in substantially the form attached hereto as Exhibit A (the “Certificate of Merger”) and subject to the conditions set forth in this Agreement, and executed in accordance with the relevant provisions of the DGCL, and shall make all other filings or recordings required under the DGCL in order to consummate the Merger. The Merger shall become effective at the time the Certificate of ▇▇▇▇▇▇ has been filed with the Delaware Secretary of State or such later time as is agreed to by the Company and Parent and stated therein (the “Effective Time, Merger Sub shall be merged with and into the Company”). As a result of the Merger, the separate corporate existence of Merger Sub shall cease, automatically cease and the Company shall continue its existence as a wholly owned subsidiary of Parent under the Laws of the State of Delaware. The Company, in its capacity as the corporation surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (Merger, is sometimes referred to in this Agreement as the “Surviving Corporation”). . (b) The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement Agreement, the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at from and after the Effective Time, the Surviving Corporation shall possess all of the property, rights, privileges, immunitiespowers, powers properties and franchises of the Company and Merger Sub shall vest in the Surviving CorporationSub, and all of the debtsobligations, liabilities liabilities, debts and duties of the Company and Merger Sub shall become the debtsobligations, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (bc) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Personsubject to Section 6.07, (i) the certificate of incorporation of the Company, as Company in effect immediately prior to the Effective Time shall be amended and restated in its entirety to read as set forth in the form of the certificate of incorporation attached to the Certificate of Merger attached hereto as Exhibit A, which form is expressly incorporated herein by reference, and as so amended shall be the certificate of incorporation of the Surviving Corporation, and such certificate (ii) the bylaws of incorporation the Company in effect immediately prior to the Effective Time shall be amended and restated in their entirety to read as set forth in the certificate bylaws of incorporation Merger Sub read immediately prior to the Effective Time (except that the name of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at shall be the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws name of the Company), and as so amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, in each case, until thereafter amended in accordance with the DGCL and as provided in such bylaws certificate of incorporation or bylaws. (d) Subject to Section 6.17, from and after the Effective Time, the Parties shall take all necessary action so that the officers of Merger Sub immediately prior to the Effective Time shall be the bylaws officers of the Surviving Corporation until thereafter changed or amended as provided therein or and, unless otherwise determined by applicable Law (subject Parent prior to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become be the directors of the Surviving Corporation, in each to hold officecase, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal or until their respective successors are duly elected and qualified in accordance with the certificate of incorporation and bylaws of the Surviving Corporation, as the case may be. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub Tidelands shall be merged merge with and into United in accordance with Section ▇▇-▇▇-▇▇▇ of the CompanySouth Carolina Business Corporation Act (“SCBCA”) and Section 14-2-1101 of the Georgia Business Corporation Code (the “Georgia Code”). As a result Upon consummation of the Merger, the separate corporate existence of Merger Sub Tidelands (sometimes referred to as the “Merged Corporation”) shall ceasecease and United shall survive and continue to exist as a corporation incorporated under the Georgia Code (United, and the Company shall continue as the surviving corporation of entity in the Merger and a wholly-owned Subsidiary of Parent (Merger, sometimes being referred to herein as the “Surviving Corporation”)) and shall continue under the name “United Community Banks, Inc.”. The Merger Surviving Corporation shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, possess all of the property, rights, privileges, immunities, powers and franchises franchises, as well of a public nature as of a private nature, of each of the Company Merged Corporation and Merger Sub shall vest in the Surviving Corporation; and all property, real, personal and mixed, and all debts due on whatever account, and all other choses in action, and all and every other interest of or belonging to or due to each of the debts, liabilities Merged Corporation and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized taken and deemed to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, transferred to and under such rights, properties or assets vested in the Surviving Corporation without further act or otherwise deed, and the title to carry out any real estate or any interest therein, vested in either of the Merged Corporation or the Surviving Corporation shall not revert or be in any way impaired by reason of the Merger. The Surviving Corporation shall thenceforth be responsible and liable for all the liabilities, obligations and penalties of each of the Merged Corporation and the Surviving Corporation; and any claim existing or action or proceeding, civil or criminal, pending by or against either of the Merged Corporation or the Surviving Corporation may be prosecuted as if the Merger had not taken place, or the Surviving Corporation may be substituted in its place, and any judgment rendered against either of the Merged Corporation or the Surviving Corporation may thenceforth be enforced against the Surviving Corporation; and neither the rights of creditors nor any liens upon the property of either of the Merged Corporation or the Surviving Corporation shall be impaired by the Merger. The “Effective Time” shall mean the date and time at which the Merger shall be effective upon the approval of this AgreementAgreement by the shareholders of the Merged Corporation and the filing of the articles of merger (the “Articles of Merger”) with the Georgia Secretary of State and South Carolina Secretary of State pursuant to Section 1.4.

The Merger. (a) Upon the terms and subject to the conditions set forth in ---------- of this Agreement, and in accordance with the DGCL, Agreement at the Effective Time, Merger Sub the Company and the Purchaser shall consummate a merger (the "Merger") pursuant to which (a) the Purchaser shall be ------ merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub the Purchaser shall thereupon cease, and (b) the Company shall continue be the successor or surviving corporation in the Merger (sometimes hereinafter referred to as the surviving corporation "Surviving Corporation") and shall continue to be governed by the laws of the Merger ---------------------- State of Delaware, and a wholly-owned Subsidiary of Parent (c) the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions corporate existence of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, Company with all of the property, its rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action continue unaffected by the Company or any other PersonMerger, except as set forth in this Section 1.4. Pursuant to the Merger, (x) the certificate of incorporation of the Company, as amended and restated in Company (the form attached hereto as Exhibit A"Certificate of Incorporation"), shall be amended in its entirety to read as the ----------------------------- certificate of incorporation of the Surviving CorporationPurchaser in effect immediately prior to the Effective Time, except that (i) Article FIRST thereof shall read as follows: "FIRST: The name of the Corporation is SUN COAST INDUSTRIES, INC." and (ii) the provisions thereof regarding indemnification of directors, officers and others shall be amended by deleting such certificate provisions in their entirety and substituting therefor Article X of incorporation the Certificate of Incorporation of the Company, and, as so amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law law and such Certificate of Incorporation and (subject y) the By-Laws of the Purchaser (the "By-Laws"), as in effect ------- immediately prior to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, time (as amended and restated in the form attached hereto as Exhibit Bhereinafter defined), shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws By-Laws of the Surviving Corporation until thereafter changed or amended as provided therein by law, by such Certificate of Incorporation or by applicable Law (subject to Section 5.8). (c) At such By-Laws except that the Effective Timeprovisions thereof regarding indemnification of directors, officers and others shall be amended by virtue deleting such provisions in their entirety and substituting therefor Article VI of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as By-laws of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving CorporationCompany. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLVermont Business Corporation Act, 11A V.S.A. § 1.01 et seq. (the “VBCA”), at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and in the applicable provisions of the DGCLVBCA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of Parent shall cause the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate articles of incorporation of the Surviving Corporation to be amended in their entirety to be identical to the articles of incorporation of Merger Sub immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be changed to “Central Vermont Public Service Corporation”, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of Merger Sub as in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws Effective Time shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective TimeTime shall, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. Parent and the Surviving Corporation shall cause up to seven (7) members of the Company Board designated by the Company who are members of the Company Board as of the Closing and who are reasonably acceptable to Parent to be elected to the Board of Directors of the Surviving Corporation as of the Effective Time; provided, that at least one (1) such designee shall be the Chief Executive Officer of the Company. (d) If, at any time after After the Effective Time, if the Surviving Corporation shall determine, in its sole discretion, determine or shall be advised, advised that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in of this Agreement, at the Effective Time and in accordance with the DGCLprovisions of this Agreement and the FBCA, at the Effective Time, Merger Sub Acquiror shall be merged with and into RISCORP, which shall be the Company. As a result of surviving corporation (sometimes referred to hereinafter as the "Surviving Corporation") in the Merger, and the separate corporate existence of Merger Sub Acquiror shall cease. Subject to the provisions of this Agreement, articles of merger (the "Articles of Merger") shall be duly prepared, executed and acknowledged by RISCORP, on behalf of the Surviving Corporation, and thereafter delivered to the Company shall continue as the surviving corporation Secretary of State of the Merger and a wholly-owned Subsidiary State of Parent (Florida for filing on the “Surviving Corporation”)Closing Date, as required by Section 607.1105 of the FBCA. The Merger shall be effected pursuant to become effective upon the Section 251(hfiling of the Articles of Merger with the Secretary of State of the State of Florida or at such time thereafter as is provided in the Articles of Merger (the "Effective Time"). (b) of DGCL From and after the Effective Time, the Merger shall have all the effects set forth as provided in this Agreement and the applicable provisions of the DGCLFBCA. Without limiting the generality of the foregoing, at and subject thereto, by virtue of the Effective TimeMerger and in accordance with the FBCA, all of the propertyproperties, rights, privileges, immunities, powers and franchises of the Company RISCORP and Merger Sub Acquiror shall vest in the Surviving Corporation, Corporation and all of the debts, liabilities and duties of the Company RISCORP and Merger Sub Acquiror shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (bc) At The Articles of Incorporation of RISCORP in effect immediately prior to the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, Time shall be the certificate Articles of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at in accordance with the Effective Time, by virtue of provisions thereof and the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)FBCA. (cd) At the Effective Time, by virtue The Bylaws of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub RISCORP in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation until altered, amended or repealed as provided in such other individuals designated by Parent as Bylaws, in the Articles of Incorporation of the Surviving Corporation and in the FBCA. (e) The officers and directors of Acquiror immediately prior to the Effective Time shall become be the initial officers and directors of the Surviving Corporation, in each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation case until their respective successors shall have been are duly elected, designated or elected and qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon On the Closing Date, upon the terms and subject to the conditions set forth in of this Agreement, Parent and in accordance with the DGCL, at the Effective Time, Merger Sub shall cause Merger Sub to be merged with and into SpinCo in accordance with the Company. As a result applicable provisions of the MergerDGCL. The Merger shall become effective at the time the Certificate of M▇▇▇▇▇ is duly filed with the Secretary of State of the State of Delaware, or such later time as Parent and SpinCo shall agree and specify in the Certificate of Merger (such time as the Merger becomes effective being the “Effective Time”). At the Effective Time, the separate corporate existence of Merger Sub shall cease, and the Company SpinCo shall continue as the surviving corporation of after the Merger and a wholly-owned Subsidiary of Parent (sometimes referred to herein as the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall will have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of of, and subject to, the foregoingimmediately preceding sentence, at from and after the Effective Time, all of the property, rights, privileges, immunities, powers powers, franchises, licenses, and franchises authority of SpinCo and the Company and Merger Sub shall will vest in the Surviving Corporation, and all of the debts, liabilities liabilities, obligations, restrictions, and duties of each of SpinCo and the Company and Merger Sub shall will become the debts, liabilities liabilities, obligations, restrictions, and duties of the Surviving Corporation. The OfferAs a result of the Merger, SpinCo shall become a direct, wholly owned Subsidiary of Parent. References herein to “SpinCo” with respect to the Merger period from and other transactions contemplated by this Agreement are referred after the Effective Time shall be deemed to herein as be references to the “Transactions.” (b) Surviving Corporation. At the Effective Time, by virtue the effects of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers Certificate of Merger, and directors the applicable provisions of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementDGCL.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, at the Effective Time (as defined in Section 1.4), the Company and Sub shall consummate a merger (the “Merger”) in accordance with the DGCL, at the Effective Time, Merger DGCL pursuant to which (i) Sub shall be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall thereupon cease, and ; (ii) the Company shall continue as be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary shall continue to be governed by the laws of Parent the State of Delaware; (iii) the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger; and (iv) the Company shall succeed to and assume all the rights and obligations of Sub. The corporation surviving the Merger is sometimes hereinafter referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, Time all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue The Certificate of Incorporation of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as Surviving Corporation shall be amended and restated at the Effective Time to read in the form attached hereto of Annex III, and as Exhibit Aso amended, such Certificate of Incorporation shall be the certificate Certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. (subject to Section 5.8). In addition, c) The By-Laws of the Surviving Corporation shall be amended and restated at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated Time to read in the form attached hereto of Annex IV, and as Exhibit Bso amended, such By-Laws shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws By-Laws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personDGCL, the directors Certificate of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws Incorporation of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsuch By-Laws. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon On the Closing Date, upon the terms and subject to the conditions set forth in of this Agreement, Parent and in accordance with the DGCL, at the Effective Time, Merger Sub shall cause Merger Sub to be merged with and into SpinCo in accordance with the Company. As a result applicable provisions of the MergerDGCL. The Merger shall become effective at the time the Certificate of ▇▇▇▇▇▇ is duly filed with the Secretary of State of the State of Delaware, or such later time as Parent and SpinCo shall agree and specify in the Certificate of Merger (such time as the Merger becomes effective being the “Effective Time”). At the Effective Time, the separate corporate existence of Merger Sub shall cease, and the Company SpinCo shall continue as the surviving corporation of after the Merger and a wholly-owned Subsidiary of Parent (sometimes referred to herein as the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall will have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of of, and subject to, the foregoingimmediately preceding sentence, at from and after the Effective Time, all of the property, rights, privileges, immunities, powers powers, franchises, licenses, and franchises authority of SpinCo and the Company and Merger Sub shall will vest in the Surviving Corporation, and all of the debts, liabilities liabilities, obligations, restrictions, and duties of each of SpinCo and the Company and Merger Sub shall will become the debts, liabilities liabilities, obligations, restrictions, and duties of the Surviving Corporation. The OfferAs a result of the Merger, SpinCo shall become a direct, wholly owned Subsidiary of Parent. References herein to “SpinCo” with respect to the Merger period from and other transactions contemplated by this Agreement are referred after the Effective Time shall be deemed to herein as be references to the “Transactions.” (b) Surviving Corporation. At the Effective Time, by virtue the effects of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers Certificate of Merger, and directors the applicable provisions of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementDGCL.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)) and an indirect wholly owned Subsidiary of Parent. The Merger shall be effected pursuant to the Section 251(h) applicable provisions of the DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, by virtue of the Merger and without necessity of further action by the Company or any other person, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, Surviving Corporation shall be amended so as amended and restated to read in its entirety in the form attached hereto set forth as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationA hereto, and such certificate of incorporation as so amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). In addition, at The bylaws of Merger Sub in effect immediately prior to the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in Time shall be the form attached hereto as Exhibit B, shall be of the bylaws of the Surviving CorporationCorporation as of the Effective Time, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after the Effective Time, shall continue as become the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this AgreementMerger, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementCorporation.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the “DGCL”), at the Effective Time, Merger Sub Company shall be merged with and into GWBI (the Company“Merger”) at the Effective Time (as hereinafter defined). As a result of Following the Merger, the separate corporate existence of Merger Sub Company shall cease, cease and the Company GWBI shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). ) and shall succeed to and assume all the rights and obligations of Company in accordance with the DGCL. (b) The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions in Subchapter IX of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (bc) At the Effective Time, by virtue the Amended and Restated Certificate of the Merger and without the necessity Incorporation of further action by the Company or any other Person, the certificate of incorporation of the CompanyGWBI, as amended and restated in effect immediately prior to the form attached hereto as Exhibit AEffective Time, (the “GWBI Certificate of Incorporation”), shall be the certificate Certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at At the Effective Time, by virtue the Bylaws of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the CompanyGWBI, as amended and restated in effect immediately prior to the form attached hereto as Exhibit BEffective Time, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At in the Effective Time, by virtue Certificate of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws Incorporation of the Surviving Corporation. (d) IfThe directors and officers of GWBI at the Effective Time shall be the directors and officers of the Surviving Corporation, at any time after until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. Immediately prior to the Effective Time, the Surviving Corporation each then-current director of Company shall determine, in its sole discretion, submit to Company his or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation her written resignation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementdirector.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLNJBCA, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)) and as a wholly owned Subsidiary of Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL NJBCA and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLNJBCA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as Surviving Corporation shall be amended and restated so as to read in its entirety in the form attached hereto set forth as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationA hereto, and such certificate of incorporation as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8‎5.9). In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form set forth as Exhibit B hereto, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the officers and directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the officers and directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated elected or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation appointed and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue the Company Certificate and Company Bylaws shall be amended and restated to be in the form of (except with respect to the name of the Merger and without the necessity of further action by the Company or any other Person, Company) the certificate of incorporation and bylaws, respectively, of the Company, Merger Sub and as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (Law, but in all events subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)5.9 hereof. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) IfThe Merger shall be effected pursuant to, and governed by, Section 251(h) of the DGCL. The parties agree to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable following the consummation of the Offer, without a meeting of stockholders of the Company in accordance with Section 251(h) of the DGCL. (e) If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLFBCA, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL FBCA and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLFBCA. Without limiting the generality of the foregoing, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, all of the property, rights, privileges, immunities, powers powers, franchises, licenses and franchises authority of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities liabilities, obligations, restrictions and duties of the Company and Merger Sub shall become the debts, liabilities liabilities, obligations, restrictions and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate articles of incorporation of the Surviving CorporationCorporation shall be amended and restated so as to read in its entirety in the form set forth as Exhibit A hereto, and such certificate of incorporation as so amended and restated, shall be the certificate articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.7). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of Merger Sub as in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit B, Effective Time shall be the bylaws of the Surviving Corporation, and such bylaws except that references to Merger Sub’s name shall be the bylaws of replaced with references to the Surviving Corporation Corporation’s name, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.7). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, from and after the Effective Time, (i) the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, and (ii) the officers of the Company immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the officers of the Surviving Corporation, each such directors or officers to hold office, from and after the Effective Time, office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, the Company Charter shall, by virtue of the Merger Merger, be amended and without the necessity of further action by the Company or any other Person, restated in its entirety to read as the certificate of incorporation of the CompanyPurchaser in effect immediately prior to the Effective Time, as amended and restated in except that all references therein to the form attached hereto as Exhibit A, Purchaser shall be the certificate of incorporation of deemed to be references to the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject Law. The bylaws of the Purchaser, as in effect immediately prior to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws except that all references therein to the Purchaser shall be the bylaws of deemed to be references to the Surviving Corporation Corporation, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in of this Agreement, at the Closing (as such term is defined in Section 3.11), a certificate of merger (the "CERTIFICATE OF MERGER") shall be duly prepared, executed and acknowledged by Sub and the Company in accordance with the DGCL, Delaware General Corporation Law and shall be filed with the Secretary of State of Delaware as provided in Section 251 of the Delaware General Corporation Law. The Merger shall become effective upon the filing of the Certificate of Merger (or at such later time reflected in such Certificate of Merger as shall be agreed to by Parent and the Company). The date and time when the Merger shall become effective is hereinafter referred to as the "EFFECTIVE TIME." (b) At the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation under the laws of the Merger and a wholly-owned Subsidiary State of Parent Delaware under the name of "Wang Global Corporation" (the “Surviving Corporation”"SURVIVING CORPORATION"). The . (c) From and after the Effective Time, the Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions Section 259(a) of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Delaware General Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving CorporationLaw. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, consider or shall be advised, advised that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to continue in, vest, perfect or confirm of record or otherwise in the Surviving Corporation its Corporation's right, title or interest in, to or under any of the rights, properties properties, privileges, franchises or assets of either of the Company or Merger Sub its constituent corporations acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger Merger, or otherwise to carry out effect the transactions contemplated by this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either of the Company or Merger Subconstituent corporations of the Merger, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or and interest in, to and under such rights, properties properties, privileges, franchises or assets in the Surviving Corporation or otherwise to carry out the intent of this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, the Company and Purchaser shall consummate the Merger Sub pursuant to which (i) Purchaser shall be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub Purchaser shall thereupon cease, and (ii) the Company shall continue as be the surviving corporation of in the Merger and a wholly-owned Subsidiary of Parent shall continue to be governed by the DGCL, and (iii) the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions separate corporate existence of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, Company with all of the property, its rights, privileges, immunities, powers and franchises of shall continue unaffected by the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving CorporationMerger. The Offer, corporation surviving the Merger and other transactions contemplated by this Agreement are is sometimes hereinafter referred to herein as the “TransactionsSurviving Corporation.”” The Merger shall have the effects set forth in the DGCL. (b) At the Effective Time, the Company Certificate shall, by virtue of the Merger and without the necessity of further action by the Company or any other PersonMerger, the certificate of incorporation of the Company, as be amended and restated in its entirety to read as set forth in Annex A to this Agreement (which shall contain indemnification, contribution and exculpation provisions identical to those set forth in the form attached hereto Company Certificate in effect as Exhibit A, shall be the certificate of incorporation of the Surviving Corporationdate hereof) and, as so amended and such certificate of incorporation restated, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (Law, subject to Section 5.8)the terms of this Agreement. In addition, at At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as in effect immediately prior to the Effective Time, shall, by virtue of the Merger, be amended and restated in their entirety to read as set forth in Annex B to this Agreement (which shall contain indemnification, contribution and exculpation provisions identical to those set forth in the form attached hereto Company’s bylaws in effect as Exhibit B, shall be the bylaws of the Surviving Corporationdate hereof) and, as so amended and such bylaws restated, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (Law, subject to Section 5.8). (c) At the Effective Time, by virtue terms of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, Agreement and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, thereupon cease and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)Merger. The Merger shall be effected pursuant to Company, as the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions surviving corporation of the DGCL. Without limiting the generality of the foregoingMerger, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are is sometimes referred to herein as the “TransactionsSurviving Corporation.” (b) At Upon the terms and subject to the conditions sets forth in this Agreement, on the Closing Date, Parent, Merger Sub and the Company shall cause the Merger to be consummated under the DGCL by filing a certificate of merger in such form as required by, and executed in accordance with, the DGCL (the “Certificate of Merger”) with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”). The time and day of such filing and acceptance by the Delaware Secretary of State, or such later time and day as may be mutually agreed in writing by Parent, Merger Sub and the Company and specified in the Certificate of Merger, is referred to herein as the “Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8).” (c) At the Effective Closing (as defined below), if Merger Sub and any other Subsidiary of Parent, holds in the aggregate at least ninety percent (90%) of the issued and outstanding Company Shares following the consummation of the Offer, then each of Parent, Merger Sub and the Company shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the Acceptance Time, by virtue without a meeting of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as stockholders of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective TimeCompany, in accordance with the certificate of incorporation and bylaws Section 253 of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with DGCL and upon the certificate of incorporation terms and bylaws of the Surviving Corporation. The officers of the Company immediately prior subject to the Effective Time, from and after the Effective Time, shall continue as the officers conditions of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationthis Agreement. (d) IfNotwithstanding anything to the contrary set forth in this Agreement, at any time in the event that the Merger cannot be effected pursuant to Section 253 of the DGCL pursuant to Section 2.1(c), then following the consummation of the Offer, each of Parent, Merger Sub and the Company shall take all necessary and appropriate actions to cause the Merger to become effective as soon as practicable after the Effective Acceptance Time, without a meeting of the Surviving Corporation shall determinestockholders of the Company, in its sole discretionaccordance with Section 251(h) of the DGCL and upon the terms and subject to the conditions of this Agreement. In furtherance, and without limiting the generality, of the foregoing, neither Parent nor Merger Sub shall, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances cause or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under permit any of the rightstheir respective Affiliates or representatives to, properties or assets of either take any action that could render Section 251(h) of the Company or Merger Sub acquired or DGCL inapplicable to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementMerger.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLMerger Agreement and the Companies Act, at the Effective Time, Merger Sub shall the Purchaser will be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall the Purchaser will cease, and the Company shall will continue as the surviving corporation entity of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving CorporationCompany”). The parties acknowledge and agree that (x) the Merger shall will be effected pursuant so as to constitute a “merger” as such term is understood under the Laws of Bermuda and (y) the Surviving Company will be deemed to be a “surviving company” in accordance with Section 251(h104H of the Companies Act. Pursuant to Section 109(2) of DGCL the Companies Act, from and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at after the Effective Time, all of : (i) the property, rights, privileges, immunities, powers and franchises Merger of the Company and Merger Sub shall vest the Purchaser and the vesting of their undertakings, property and liabilities in the Surviving Corporation, Company will become effective; (ii) the Surviving Company will continue to be liable for the obligations and all liabilities of the debts, liabilities and duties each of the Company and Merger Sub shall become the debtsPurchaser; (iii) any existing cause of action, liabilities and duties of the Surviving Corporation. The Offerclaim or liability to prosecution will be unaffected; (iv) any civil, the Merger and other transactions contemplated criminal or administrative action or proceeding pending by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by or against the Company or any other Personthe Purchaser may continue to be prosecuted by or against the Surviving Company; (v) a conviction against, or ruling, order or judgment in favor of or against, the certificate Company or the Purchaser may be enforced by or against the Surviving Company; (vi) the Certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall Merger will be deemed to be the certificate of incorporation of the Surviving CorporationCompany; (vii) the Registrar of Companies in Bermuda (the “Registrar”) will strike the Purchaser off the register; and (viii) the cessation of the Purchaser will not be a winding up within Part XIII of the Companies Act. (b) The Company and the Surviving Company will take all necessary action such that, and such certificate of incorporation shall be at the certificate of incorporation Effective Time, the bye-laws of the Surviving Corporation Company will be amended so as to read in their entirety in the form set forth as Exhibit B hereto, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold officewill, from and after the Effective Time, be the initial directors of the Surviving Company, each to hold office in accordance with the certificate of incorporation and bylaws bye-laws of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws bye-laws of the Surviving CorporationCompany. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall will continue as the officers of the Surviving CorporationCompany, each to hold office in accordance with the certificate of incorporation and bylaws bye-laws of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws bye-laws of the Surviving CorporationCompany. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, Company or shall be advised, Parent determines or is advised that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation Company its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation Company as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation Company shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations companies or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation Company or otherwise to carry out this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub (a) Purchaser shall be merged with and into the Company. As a result Company in accordance with the provisions of the Merger, the separate corporate existence of Nevada Merger Sub shall ceaseLaw, and the separate existence of Purchaser shall cease and (b) the Company shall continue as be the surviving corporation of in the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)) and shall continue its corporate existence under the NPCL. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLNPCL and the Nevada Merger Law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privilegespowers, immunities, powers privileges and franchises of the Company and Merger Sub Purchaser shall vest in the Company as the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) Ifmay, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that take any deeds, bills of sale, instruments of conveyance, assignments, assurances or action (including executing and delivering any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, document) in the name and on behalf of either the Company or Merger Sub, Purchaser in order to carry out and effectuate the transactions contemplated by this Agreement. The Surviving Corporation shall thereafter be responsible and liable for all such deeds, bills the liabilities and obligations of sale, instruments of conveyance, assignments the Company and assurances and Purchaser. Notwithstanding anything herein to take and dothe contrary, in the name event that Parent, Purchaser or any other Subsidiary or Affiliate of Parent shall collectively own at least one Share more than ninety percent (90%) of the outstanding Shares, following the satisfaction or waiver (by the parties hereto) of the conditions set forth in Article VII, Parent and on behalf the Company hereby agree to take all necessary and appropriate action to cause the Merger to become effective, without a meeting of each the holders of such corporations or otherwisethe Shares, all such other actions and things in accordance with NRS 92A.180 as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementpromptly as practicable.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation shall, by virtue of the Merger and all other applicable action by Parent and the Surviving Corporation, be amended so as to read in its entirety in the form set forth as Exhibit A hereto, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation shall be amended so as to read in their entirety in the form set forth as Exhibit B hereto, until thereafter changed or amended as provided therein therein, in the certificate of incorporation of the Surviving Corporation or by applicable Law (subject Law. Subject to Section 5.8)6.2, at the effective time of the Second Merger, the certificate of formation of the Surviving Company shall be amended to read as set forth on Exhibit C and as so amended shall be the certificate of formation of the Surviving Company in the Second Merger. In addition, at the effective time of the Second Merger, the operating agreement of the Surviving Company shall be amended to read as set forth on Exhibit D and as so amended shall be the operating agreement of the Surviving Company in the Second Merger. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall Time, become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Purchaser immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLNew York Business Corporation Law (the “NYBCL”), at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and in the applicable provisions of the DGCLNYBCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, Parent shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be cause the certificate of incorporation of the Surviving Corporation to be amended in its entirety to be identical to the certificate of incorporation of Merger Sub immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be changed to “CH Energy Group, Inc.”, until thereafter changed or amended as provided therein or by applicable Law (Law, subject to Section 5.8)5.10. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of Merger Sub as in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws Effective Time shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (Law, subject to Section 5.8)5.10. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of shall, at the Effective Time shall become Time, be the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective TimeTime shall, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. Parent and the Surviving Corporation shall cause up to three (3) members of the Company Board designated by the Company who are members of the Company Board as of the Closing and who are reasonably acceptable to Parent to be elected to the Board of Directors of the Surviving Corporation as of the Effective Time; provided, that at least one (1) such designee shall be the Chief Executive Officer of the Company. (d) If, at any time after After the Effective Time, if the Surviving Corporation shall determine, in its sole discretion, determine or shall be advised, advised that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the satisfaction or waiver of the conditions set forth in this Agreement, Agreement and in accordance with the DGCL, at applicable provisions of the GBCLM: (a) At the Effective Time, Merger Sub shall be merged merge with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation Surviving Corporation. As a result of the Merger and Merger, the Surviving Corporation shall become a wholly-direct wholly owned Subsidiary of Parent (the “Surviving Corporation”)Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLGBCLM. Without limiting the generality of the foregoing, at from and after the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At In connection with the Merger and prior to the Effective Time, by virtue Parent shall take all corporate action necessary to authorize and reserve for issuance a sufficient number of shares of common stock, par value $0.01 per share, of Parent (“Parent Common Stock”) to permit the Merger and without issuance of shares of Parent Common Stock to the necessity holders of further action by the shares of Company or any other Person, the certificate Common Stock as of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)and in accordance with the terms of this Agreement. (c) At the Effective Time, by virtue of the Merger and without the necessity of further any action by the Company Company, Parent, Merger Sub or any other personPerson, the articles of incorporation and the bylaws of the Surviving Corporation shall be amended to be identical to the articles of incorporation and bylaws of Merger Sub (except that the name of the Surviving Corporation shall not be changed), as in effect immediately prior to the Effective Time. (d) The directors of Merger Sub serving in such positions immediately prior to the Effective Time or such other individuals designated by Parent shall become, as of the Effective Time shall become Time, the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. The officers of the Company serving in such positions immediately prior to the Effective TimeTime shall become, from and after effective as of the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon As promptly as practicable after the terms and subject consummation of the Offer, the parties shall cause the Merger to be consummated by filing with the conditions set forth in this AgreementSecretary of State of the State of Delaware (the “Delaware Secretary of State”) a certificate of merger (the “Certificate of Merger”) satisfying the applicable requirements of, and executed in accordance with with, the relevant provisions of the DGCL, and shall make all other filings or recordings required under the DGCL in order to consummate the Merger. The Merger shall become effective at the time the Certificate of Merger is filed with the Delaware Secretary of State or at such later time (to the extent permitted by the DGCL) as agreed by Parent and the Company and specified in the Certificate of Merger (the “Effective Time, Merger Sub shall be merged with and into the Company”). As a result of the Merger, the separate corporate existence of Merger Acquisition Sub shall cease, and the Company shall continue its existence as an indirect, wholly owned subsidiary of Parent under the laws of the State of Delaware. The Company, in its capacity as the corporation surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (Merger, is sometimes referred to in this Agreement as the “Surviving Corporation.”). (b) The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement Agreement, the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing. (c) Subject to Section 8.03, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (bi) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other PersonMerger, the certificate of incorporation of the Company, Company shall be amended in its entirety to read as amended and restated set forth in the form attached hereto as Exhibit A, and (ii) the parties hereto shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, cause the bylaws of Acquisition Sub in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit B, shall Effective Time to be the bylaws of the Surviving Corporation, and such bylaws except that the name of the corporation set forth therein shall be changed to the bylaws name of the Surviving Corporation Company, in each case, until thereafter changed or amended in accordance with the DGCL and as provided therein in such certificate of incorporation or by applicable Law (subject to Section 5.8)bylaws. (cd) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from From and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, Time shall continue as be the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been are duly elected, designated or qualified, or until their earlier death, resignation or removal elected and qualified in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall the Company will be merged with and into Merger Sub in accordance with the Companyprovisions of the Delaware Limited Liability Company Act (6 Del. C. §§ 18-101 et seq.), as amended from time to time (the "Delaware Act"), and the Colorado Business Corporation Act (the "CBCA"). As a result of the Merger, the separate corporate existence of the Company shall cease and Merger Sub shall ceasecontinue its existence under the laws of the State of Delaware as the surviving company (in such capacity, Merger Sub is sometimes referred to herein as the "Surviving Company"). (b) At the Closing, the Company and Merger Sub shall cause a certificate of merger substantially in the form of Exhibit B hereto (the "Certificate of Merger") to be executed, acknowledged and filed with the Secretary of State of the State of Delaware and make all other filings or recordings required by the Delaware Act in connection with the Merger. Additionally, at the Closing, the Company and Merger Sub shall cause a statement of merger substantially in the form of Exhibit C hereto (the "Statement of Merger") to be executed, acknowledged and filed with the Secretary of State of the State of Colorado and make all other filings or recordings required by the CBCA in connection with the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware and the Statement of Merger is duly filed with the Secretary of State of the State of Colorado or at such other time as Parent and the Company shall continue as agree and specify in the surviving corporation Certificate of the Merger and a wholly-owned Subsidiary Statement of Parent Merger (the “Surviving Corporation”"Effective Time"). The Merger shall be effected pursuant to the Section 251(h. (c) of DGCL From and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at after the Effective Time, the Surviving Company shall succeed to all of the propertyassets, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and be subject to all of the debtsLiabilities, liabilities restrictions, disabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, as provided in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to this Agreement and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementDelaware Act and the CBCA.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLCICA, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall ceasecease to exist and will be struck off the Register of Companies in the Cayman Islands, and the Company shall continue as the surviving corporation Surviving Company under the Laws of the Merger Cayman Islands and become a wholly-wholly owned Subsidiary of Parent (the “Surviving Corporation”)Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL CICA and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLCICA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privilegesthe property of every description including choses in action, immunitiesand the business, powers undertaking, goodwill, benefits, immunities and franchises privileges of each of the Company and Merger Sub shall vest in the Surviving CorporationCompany, and the Surviving Company shall be liable for and subject, in the same manner as the Company and Merger Sub, to all of the debtsmortgages, charges or security interests and all contracts, obligations, claims, debts and liabilities and duties of each of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving CorporationSub. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate memorandum and articles of incorporation association of the CompanyMerger Sub, as amended and restated in effect immediately prior to the form attached hereto as Exhibit AEffective Time, shall be the certificate memorandum and articles of incorporation association of the Surviving Corporation, Company until thereafter amended in accordance with applicable Law and such certificate memorandum and articles of incorporation shall be association; save and except (i) all references to the certificate of incorporation name of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be amended to “Silicon Motion Technology Corporation”; (ii) all references therein to the bylaws authorized share capital of the Surviving Corporation, and such bylaws Company shall be amended to refer to the bylaws correct authorized share capital of the Surviving Corporation until thereafter changed or amended Company as provided therein or approved in the Plan of Merger; (iii) such memorandum and articles of association shall include such indemnification provisions as required by applicable Law Section 5.10(a); and (subject to Section 5.8)iv) such other conforming changes necessary given the Merger. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of prior to the Effective Time shall become the directors of the Surviving CorporationCompany, each to hold office, from and after the Effective Time, in accordance with the certificate memorandum and articles of incorporation and bylaws association of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate memorandum and articles of incorporation and bylaws association of the Surviving CorporationCompany. The officers of the Company immediately prior to the Effective Time, Time shall continue to be the officers of the Surviving Company from and after the Effective Time holding the same officer positions and titles as with the Company immediately prior to the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate memorandum and articles of incorporation and bylaws association of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate memorandum and articles of incorporation and bylaws association of the Surviving CorporationCompany. (d) If, at any time after the Effective Time, the Surviving Corporation Company shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation Company its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation Company as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation Company shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, deliver all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, do all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation Company or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation and bylaws of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated as of the Effective Time to be in the form attached hereto of (except with respect to the name of the Company) the certificate of incorporation and bylaws of Purchaser and as Exhibit A, amended shall be the certificate of incorporation and bylaws of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (and subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.8 hereof). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger SubPurchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, MBCA at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)) and as a wholly owned Subsidiary of Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL MBCA and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLMBCA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate articles of incorporation of the Surviving CorporationCorporation shall be amended and restated so as to read in its entirety in the form set forth as Exhibit A hereto, and such certificate of incorporation as so amended and restated, shall be the certificate articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue the by-laws of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, Surviving Corporation shall be amended so as amended and restated to read in its entirety in the form attached hereto set forth as Exhibit BB hereto, and as so amended shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws by-laws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate articles of incorporation and bylaws by-laws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws by-laws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate articles of incorporation and bylaws by-laws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws by-laws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or Merger Sub or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms On and subject to the terms and conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, the Merger Sub shall be merged with and into the Company (the “Merger”) in accordance with the IBCL. At the Closing, articles of merger, in the form attached hereto as Exhibit B (the “Articles of Merger”), shall be duly executed and acknowledged by the Merger Sub and the Company in accordance with the IBCL and shall be filed with the Indiana Secretary of State. The Merger shall become effective upon the filing of the Articles of Merger. The date and time when the Merger shall become effective is hereinafter referred to as the “Effective Time.” (b) At the Effective Time, the Merger Sub shall be merged with and into the Company. As a result of the Merger, and the separate corporate existence of the Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The ” under the IBCL. (c) From and after the Effective Time, the Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions in Section IC 23-1-40-6 of the DGCL. Without limiting the generality IBCL. (d) As a result of the foregoing, Merger and at the Effective Time, all the Articles of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation Incorporation of the Company, as amended and restated in the form attached hereto as Exhibit AC, shall be the certificate Articles of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation Incorporation of the Surviving Corporation unless and until such Articles of Incorporation thereafter changed or shall be duly amended as provided therein or by in accordance with applicable Law law. (subject to Section 5.8). In addition, e) As a result of the Merger and at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws Bylaws of the Company, as amended and restated in the form attached hereto as Exhibit BD, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws Bylaws of the Surviving Corporation unless and until such bylaws thereafter shall be changed or amended as provided therein or by in accordance with the provisions thereof, the provisions of the Articles of Incorporation of the Surviving Corporation and applicable Law (subject to Section 5.8)law. (cf) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized the directors of the Merger Sub in addition to execute ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and deliver▇▇▇▇▇▇ ▇. May, who shall be appointed in accordance with the name and on behalf of either the Company or Merger SubStockholders Agreement, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of with each of such corporations or otherwisedirectors to hold office, all such other actions subject to the applicable provisions of the IBCL and things as may be necessary or desirable to vestthe Articles of Incorporation and Bylaws of the Surviving Corporation, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in until the next annual shareholders’ meeting of the Surviving Corporation and until their respective successors shall be duly elected or otherwise appointed and qualified. At the Effective Time, the officers of the Company shall be, subject to carry out this Agreementthe applicable provisions of the Articles of Incorporation and Bylaws of the Surviving Corporation, the officers of the Surviving Corporation.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement: (a) DWS, following its Redomestication as DWS Delaware, shall merge with and into Acquisition Subsidiary (with such merger referred to herein as the "Merger") at the Effective Time in accordance with the DGCL, at applicable provisions of Delaware Law. Following the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub DWS shall cease, and the Company Acquisition Subsidiary shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “"Surviving Corporation”"). The effects and consequences of the Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects as set forth in this Agreement Agreement, the Certificate of Merger, and under the applicable provisions of the DGCLDelaware law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub DWS shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub DWS shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At Subject to the Effective Timeterms and conditions of this Agreement, the closing of the Transactions (the "Closing") shall take place at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, commencing at 10:00 a.m., local time, on the Closing Date. The "Closing Date" shall mean the date as soon as practicable following the date on which the last of the conditions set forth in Article 7 is satisfied or waived (excluding conditions that, by virtue of their terms, cannot be satisfied until the Merger and without the necessity of further action by the Company or any other PersonClosing Date, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (but subject to Section 5.8). In addition, at the Effective Time, by virtue fulfillment or waiver of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8conditions). (c) At Subject to the terms and conditions of this Agreement, as soon as practicable following the Closing, the Parties shall, as applicable: (1) file a certificate of merger with respect to the Merger (the "Certificate of Merger") in such form as is reasonably acceptable to each Party and otherwise required by and executed in accordance with applicable Delaware Law and (2) make all other filings or recordings required under applicable Delaware Law. The Merger shall become effective at such time and date (the "Effective Time, by virtue ") which is the date and time that the Certificate of Merger is duly filed with the Secretary of State of the Merger and without the necessity State of further action by the Company or any other personDelaware, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated date and time as DWS and IDC shall agree should be specified in the Certificate of Merger and as may be permitted by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving CorporationDelaware Law. (d) If, at any time after The structure of the Effective Time, Merger may be adjusted by mutual agreement of the Parties based on tax advice as to how to best preserve NOLs for the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementCorporation.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue its corporate existence as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany shall be amended to read in its entirety as set forth in Exhibit A hereto, and, as amended and restated in the form attached hereto as Exhibit Aso amended, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or herein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the CompanyCompany shall be amended to read in their entirety as set forth in Exhibit B hereto, and, as amended and restated in the form attached hereto as Exhibit Bso amended, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold officeshall, from and after the Effective Time, in accordance with be the certificate of incorporation and bylaws initial directors of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with and the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Timepersons listed on Exhibit C shall, from and after the Effective Time, shall continue as be the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after After the Effective Time, if the Surviving Corporation shall determine, in its sole discretion, determine or shall be advised, advised that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to Section 251 of the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, in each case, as provided under the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsDGCL.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, (i) the certificate of incorporation of the Company, Company as in effect immediately prior to the Effective Time shall be amended and restated to read in its entirety in the form attached hereto as Exhibit A, shall be of the certificate of incorporation of the Surviving Corporationset forth on Exhibit A and, as so amended and such certificate of incorporation restated, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, (ii) the bylaws of the Company, Company as in effect immediately prior to the Effective Time shall be amended and restated to read in their entirety in the form attached hereto as Exhibit B, shall be of the bylaws of the Surviving Corporationset forth on Exhibit B and, as so amended and such bylaws restated, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or and in the certificate of incorporation of the Surviving Corporation and by applicable Law (subject to Section 5.85.9). (c) At Notwithstanding anything in this Agreement to the contrary, if, at any time during the period between the date of this Agreement and the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise change in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either outstanding Equity Interests of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation Parent shall occur as a result ofof any reorganization, reclassification, recapitalization, stock split (including a reverse stock split), subdivision or combination, exchange or readjustment of shares, or in connection withany stock dividend or stock distribution (including any dividend or other distribution of securities convertible into Company Shares) with a record date during such period, the Merger or otherwise Consideration and any other similarly dependent items, as the case may be, will be equitably adjusted to carry out this Agreement, then reflect such change and provide the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf holders of each of Company Share and Company Equity Award the same economic effect as contemplated by this Agreement prior to such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementevent.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLNDBCA, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation Surviving Corporation of the Merger and as a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL NDBCA, as and to the extent modified by the NDPTCA and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLNDBCA and the NDPTCA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and the other transactions contemplated by this Agreement are referred to herein as the “Transactions”. Parent and the Company agree that for U.S. federal income tax purposes the Merger shall be treated as a stock purchase, whereby Parent purchases all of the Company Shares.” (b) At the Effective Time, by virtue of the filing of the Articles of Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate articles of incorporation of the Surviving CorporationCorporation shall be amended and restated so as to read in its entirety in the form set forth as Exhibit C hereto, and such certificate of incorporation as so amended and restated shall be the certificate articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form set forth as Exhibit D hereto, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after Time or such other individuals designated by Parent as of the Effective Time, Time shall continue as become the officers of the Surviving Corporation, each to hold office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation Corporation, as applicable, as a result of, or in connection with, the Merger Transactions or otherwise to carry out this AgreementAgreement and the Ancillary Agreements, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementAgreement and the Ancillary Agreements.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, at the Effective Time (as defined in Section 1.2), the Company and Sub shall consummate a merger (the “Merger”) in accordance with the DGCLWBCL, at the Effective Time, Merger pursuant to which (i) Sub shall be merged with and into the Company. As a result of the Merger, and the separate corporate existence of Merger Sub shall thereupon cease, and ; (ii) the Company shall continue as be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary shall continue to be governed by the laws of Parent the State of Wisconsin; (iii) the corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger; and (iv) the Company shall succeed to and assume all the rights and obligations of Sub. The corporation surviving the Merger is sometimes hereinafter referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLWBCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, Time all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At The Articles of Incorporation of Sub, as in effect immediately prior to the Effective TimeTime (other than the name of Sub, by virtue of the Merger and without the necessity of further action by the Company or any other Personwhich shall be amended to “Bone Care International, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit AInc.”), shall be the certificate Articles of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. (subject c) The By-Laws of Sub, as in effect immediately prior to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws By-Laws of the Surviving Corporation until thereafter changed or amended as provided provide therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCLNew Bank shall, at the Effective TimeTime (as defined herein), merge with and into Merger Sub, and the separate existence of New Bank shall cease. Merger Sub shall be merged with the resulting institution in the Merger and into the Companyshall continue its corporate existence. As a result of Immediately after the Merger, the separate corporate existence of Bank shall be merged into Merger Sub, and Merger Sub shall cease, will be the Resulting Institution of the Subsequent Merger. (b) The Merger and the Company shall continue as the surviving corporation of the Subsequent Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall will be effected pursuant to the Section 251(h) of DGCL provisions of, and shall have with the effects set forth in this Agreement and effect provided in, the applicable provisions of the DGCL. Without limiting the generality rules and regulations of the foregoing, at the Effective Time, all offices of the property, rights, privileges, immunities, powers and franchises Comptroller of the Company Currency (the "OCC"), the Office of Thrift Supervision ("OTS") and any other applicable authority, as may be applicable (such applicable regulatory authority is hereinafter referred to as the "Bank Authority"), including the execution by Merger Sub shall vest in the Surviving Corporation, and all New Bank of the debts, liabilities and duties articles of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated merger in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action required by the Company or any other Person, Bank Authority setting forth the bylaws terms of this Agreement (the Company, as amended "Articles of Merger") and restated in the form attached hereto as Exhibit B, shall be filing thereof with the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Bank Authority. (c) At Subject to the Effective Timeprovisions of Articles 6 and 7 hereof, by virtue the closing of the Merger transactions contemplated hereby shall take place at such location, on such date, and without at such time as TCF and Standard mutually agree, at the necessity earliest practicable time after the expiration of further action by all applicable waiting periods, in connection with approvals of governmental authorities and the Company satisfaction or any waiver of all conditions to the Merger, but in no event later than ten business days after all such waiting periods have expired and all such conditions have been satisfied or waived, or on such other persondate as the parties hereto may mutually agree upon. On the closing date, to effect the Merger, the directors parties hereto will cause the Articles of Merger Sub immediately prior to be executed and filed with the Effective Time or such other individuals designated by Parent as Bank Authority and the Merger shall be effective upon the filing of the Effective Time shall become Articles of Merger with the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, Bank Authority in accordance with the certificate of incorporation rules and bylaws regulations of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with Bank Authority (the certificate of incorporation and bylaws of the Surviving Corporation"Effective Time"). The officers of term "Effective Date" shall mean the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, day on which the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementbecomes effective.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementhereof, and in accordance with the DGCL, at the Effective Time, Merger Sub Buyer shall be merged with and into the CompanyCompany at the Effective Time (the "Merger"). As a result Upon consummation of the Merger, the separate corporate existence of Merger Sub Buyer shall cease, cease and the Company shall continue as be the surviving corporation of (the Merger "Surviving Corporation") and a wholly-owned Subsidiary subsidiary of Parent Parent. (a) As soon as practicable after satisfaction of (or, to the extent permitted hereunder, waiver of) all conditions to the Merger, the Company and Buyer will file a certificate of merger (the “Surviving Corporation”)"Certificate of Merger") with the Secretary of State of the State of Delaware in accordance with the DGCL (in the form attached hereto as Exhibit B) and make all other filings or recordings --------- required by applicable Law in connection with the Merger. The Merger shall become effective at such time as the certificate of merger is filed with the Secretary of State of the State of Delaware or at such later time as is specified in the Certificate of Merger (the "Effective Time"). (b) At the Effective Time, the effect of the Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub Buyer shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub Buyer shall become the debts, liabilities and duties of the Surviving Corporation. The Offer. (c) Notwithstanding the foregoing, in the event that Buyer acquires at least 90% of the outstanding Shares, whether pursuant to the Offer or pursuant to the Stock Purchase Agreements, the Buyer Option Agreement or otherwise, the parties hereto agree, subject to Article 7, to take all necessary --------- and appropriate action to cause the Merger and other transactions contemplated by this Agreement are referred to herein become effective, in accordance with Section 253 of the DGCL, as soon as reasonably practicable on or after the “TransactionsFunding Date.” (bd) At the Effective Time, by virtue The Certificate of Incorporation of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as Surviving Corporation shall be amended and restated to read the same as the Certificate of Incorporation of Buyer in effect at the form attached hereto Effective Time until amended in accordance with applicable Law, provided, however, that Section I of the amended -------- ------- and restated Certificate of Incorporation of the Company as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate instead of incorporation shall be reading the certificate of incorporation same as Section I of the Surviving Corporation until thereafter changed or amended Certificate of Incorporation of Buyer, shall read as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue follows: "The name of the Merger and without the necessity of further action by the Company or any other Personcorporation is eMachines, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the Inc." The bylaws of the Surviving Corporation until thereafter changed or shall be amended and restated to read the same as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue bylaws of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to Buyer in effect at the Effective Time or until amended in accordance with applicable Law, except that all references in such other individuals designated by Parent as bylaws to Buyer shall be changed to refer to eMachines, Inc. (e) The directors of Buyer at the Effective Time shall become be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate Certificate of incorporation Incorporation and bylaws of the Surviving Corporation until their respective successors shall have been such director's successor is duly elected, designated elected or qualified, appointed and qualified or until their such director's earlier death, resignation or removal in accordance with the certificate Certificate of incorporation Incorporation and bylaws of the Surviving Corporation. . (f) The officers of the Company immediately prior to Buyer at the Effective Time, from and after Time shall be the Effective Time, shall continue as the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate Certificate of incorporation Incorporation and bylaws of the Surviving Corporation until their respective successors shall have been such officer's successor is duly elected, designated elected or qualified, appointed and qualified or until their such officer's earlier death, resignation or removal in accordance with the certificate Certificate of incorporation Incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, Surviving Corporation shall be amended so as amended and restated to read in its entirety in the form attached hereto set forth as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationA hereto, and such certificate of incorporation as so amended shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form set forth as Exhibit B hereto, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, the Company and the Surviving Corporation shall take all necessary action such that, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by the Parent as of prior to the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement. (e) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding Equity Interests of the Company, other than as expressly permitted by Section 5.1(b), shall occur as a result of any reclassification, recapitalization, stock split (including a reverse stock split), subdivision or combination, exchange or readjustment of shares, or any dividend or distribution with a record date during such period, the Merger Consideration will be equitably adjusted to reflect such change.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, all of the property, rights, privileges, immunities, powers powers, franchises, licenses and franchises authority of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities liabilities, obligations, restrictions and duties of the Company and Merger Sub shall become the debts, liabilities liabilities, obligations, restrictions and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as Surviving Corporation shall be amended and restated so as to read in its entirety in the form attached hereto set forth as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationA hereto, and such certificate of incorporation as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.7). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of Merger Sub as in effect immediately prior to the Company, as amended and restated in the form attached hereto as Exhibit B, Effective Time shall be the bylaws of the Surviving Corporation, and such bylaws except that references to Merger Sub’s name shall be the bylaws of replaced with references to the Surviving Corporation Corporation’s name, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.7). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, from and after the Effective Time, (i) the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after (ii) the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after Time or such other individuals designated by Parent as of the Effective Time, Time shall continue as become the officers of the Surviving Corporation, each such directors or officers to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation and bylaws of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated as of the Effective Time to be in the form attached hereto of (except with respect to the name of the Company) the certificate of incorporation and bylaws of Purchaser and as Exhibit A, so amended shall be the certificate of incorporation and bylaws of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (and subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.16). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, chosen by the directors of the Surviving Corporation or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger SubPurchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to Section 251 of the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, in each case, as provided under the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsDGCL.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, Surviving Corporation shall be amended so as amended and restated to read in its entirety in the form attached hereto as Exhibit A, shall be of the certificate of incorporation of Merger Sub immediately prior to the Effective Time (except that the certificate of incorporation of the Surviving CorporationCorporation shall provide that the name of the Surviving Corporation shall be AV Homes, and such Inc., the provisions of the certificate of incorporation of Merger Sub relating to the incorporator of Merger Sub shall be omitted and such changes shall be made to comply with Section 5.8), and as so amended shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (Law. In addition, subject to Section 5.8). In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety as the bylaws of Merger Sub immediately prior to the Effective Time, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, and the Surviving Corporation shall take all necessary action such that the directors of Merger Sub immediately prior to the Effective Time Time, or such other individuals designated by Parent as of the Effective Time Time, shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation Corporation, until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after during the period between the date of this Agreement and the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise change in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either outstanding Equity Interests of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation Parent shall occur as a result ofof any reorganization, reclassification, recapitalization, stock split (including a reverse stock split), subdivision or combination, exchange or readjustment of shares, or in connection withany stock dividend or stock distribution with a record date during such period, the Merger or otherwise Consideration will be equitably adjusted to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all reflect such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementchange.

The Merger. (a) Upon The Initial LLCA, as amended by this Article II, shall continue to be the terms limited liability company agreement of the Surviving LLC unless and subject to the conditions set forth in this Agreement, and until amended in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Mergerits terms, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Contribution Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsLaw.” (b) At the Effective Time, by virtue pursuant to Section 18-209(f)(2) of the Merger Act, the Initial LLCA is hereby amended as follows: (i) The introductory paragraph of the Initial LLCA is hereby amended and without restated in its entirety to read as follows: “This LIMITED LIABILITY COMPANY AGREEEMENT of WaterBridge Infrastructure LLC (the necessity ”Company“), dated as of further action April 11, 2025 (this ”Agreement“), is entered into by WBR Holdings LLC and Ashburton Investment Private Limited, as the sole members of the Company, and NDB Holdings LLC, as the non-member manager of the Company. The term ”Member“ as used herein shall mean both WBR Holdings LLC and Ashburton Investment Private Limited, each in its capacity as a member of the Company. The term ”Manager“ as used herein shall mean NDB Holdings LLC, in its capacity as non-member manager of the Company.” (ii) Section 10 of the Initial LLCA is hereby amended and restated in its entirety to read as follows: “The powers of the Company shall be exercised by or any other Personunder the authority of, and the business and affairs of the Company shall be managed under the direction of, the certificate Manager, which shall make all decisions and take all actions for the Company. It is the intent of incorporation the Members and the Manager that this Agreement be amended and restated pursuant to and in accordance with that certain Contribution and Corporate Reorganization Agreement, dated as of [  ], 2025, among the Company, WBR Holdings LLC, NBD Midstream LLC, WaterBridge Equity Finance LLC, Desert Environmental LLC and the other parties thereto. Notwithstanding the foregoing, the Manager may designate one or more persons, who may or may not be members of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law officers (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws ”Officers“) of the Company, as amended . Officers will have such rights and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things duties as may be necessary designated by the Manager. Notwithstanding any provision of this Agreement to the contrary, any action hereunder requiring the consent, approval or desirable other action of ”the Member“ shall, instead, require the consent, approval or other action of the Manager, and neither Member shall have the power or authority to vestbind the Company without the consent of the Manager. No Member shall transfer, perfect assign or confirm any and all right, title or interest in, to and under such rights, properties or assets pledge its interests in the Surviving Corporation or otherwise to carry out this AgreementCompany without the prior written consent of the Manager.”

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)) and an indirect wholly-owned Subsidiary of Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, Surviving Corporation shall be amended so as amended and restated to read in its entirety in the form attached hereto set forth as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationA hereto, and such certificate of incorporation as so amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form set forth as Exhibit B hereto, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after the Effective Time, shall continue as become the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation shall, by virtue of the Merger and all other applicable action by Parent and the Surviving Corporation, be amended so as to read in its entirety in the form set forth as Exhibit A hereto, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation shall be amended so as to read in their entirety in the form set forth as Exhibit B hereto, until thereafter changed or amended as provided therein therein, in the certificate of incorporation of the Surviving Corporation or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall Time, become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Purchaser immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLapplicable provisions of the DLLCA, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation limited liability company of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving CorporationCompany”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLDLLCA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving CorporationCompany, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsCompany.” (b) At From and after the Effective Time, by virtue Time and without further action on the part of the Merger and without parties, the necessity Certificate of further action by Formation of the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as shall be the Certificate of the Effective Time shall become the directors Formation of the Surviving CorporationCompany until amended in accordance with the terms thereof. From and after the Effective Time, each to hold officethe Operating Agreement set forth on Exhibit D attached hereto shall be the Operating Agreement of the Surviving Company until amended in accordance with terms thereof. (c) The current executive officers of the Company shall, from and after the Effective Time, become the executive officers of the Surviving Company each to hold office in accordance with the certificate Certificate of incorporation Formation and bylaws Operating Agreement of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate Certificate of incorporation Formation and bylaws Operating Agreement of the Surviving CorporationCompany. The officers members of the Company immediately prior to the Effective TimeParent Board shall, from and after the Effective Time, shall continue as become the officers board of directors of the Surviving Corporation, Company each to hold office in accordance with the certificate Certificate of incorporation Formation and bylaws Operating Agreement of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate Certificate of incorporation Formation and bylaws Operating Agreement of the Surviving CorporationCompany. (d) If, If at any time after the Effective Time, the Surviving Corporation Company shall determine, in its sole reasonable discretion, or shall be advisedadvised by its counsel, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation Company its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation Company as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors managers of the Surviving Corporation Company shall be authorized to execute and deliver, in the name and on behalf of either the Company or the Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations subject to compliance with applicable law or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation Company or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “"Surviving Corporation”"). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “"Transactions".” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, Company (the "Company Charter") shall be amended so as amended and restated to read in its entirety in the form attached hereto set forth as Exhibit A, shall be the certificate of incorporation of the Surviving CorporationB hereto, and such certificate of incorporation as so amended shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, the Company shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, Company (the "Company Bylaws") shall be amended so as amended and restated to read in its entirety in the form attached hereto set forth as Exhibit B, shall be the bylaws of the Surviving CorporationC hereto, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after Time or such other individuals designated by Parent as of the Effective Time, Time shall continue as become the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon At the Effective Time and upon the terms and subject to the conditions set forth in this Agreement, of the Merger Agreement and in accordance with the DGCL, at the Effective Time, Merger Sub Purchaser shall be merged with and into the CompanyCompany (the "Merger"). As a result of Following the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation (the "Surviving Corporation") and the separate corporate existence of Purchaser shall cease. The closing of the Merger and will take place at a wholly-owned Subsidiary of Parent time (the “Surviving Corporation”)"Closing Time") and on a date which shall be no later than the second business day after satisfaction of all applicable conditions set forth in the Merger Agreement, unless another time, date or place is agreed to in writing. Subject to the terms and conditions set forth in the Merger Agreement, a certificate of merger (the "Merger Certificate") shall be duly executed and acknowledged by ▇▇▇▇▇▇▇▇▇ and the Company and thereafter delivered at the Closing Time to the Secretary of State of the State of Delaware, for filing pursuant to the DGCL. The Merger shall be effected become effective at such time as a properly executed and certified copy of the Merger Certificate is duly accepted for record by the Secretary of State of the State of Delaware for filing pursuant to the Section 251(h) of DGCL DGCL, or such later time as Purchaser and shall have the effects Company may agree upon and set forth in this Agreement and the applicable provisions Merger Certificate (not exceeding 30 days after the Merger Certificate is accepted for filing; the time the Merger becomes effective being referred to herein as the "Effective Time"). Among other consequences of the DGCL. Without limiting the generality of the foregoingMerger, at the Effective Time, Time all of the propertyproperties, rights, privileges, immunities, powers power and franchises of the Company and Merger Sub Purchaser shall vest in the Surviving Corporation, Corporation and all of the debts, liabilities and duties of the Company and Merger Sub Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, Certificate of Incorporation of the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At Company in effect at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, Time shall be the certificate Certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by in accordance with applicable Law (subject to Section 5.8)law. In addition, The Bylaws of the Company in effect at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, Time shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by in accordance with applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue law. The directors and officers of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of Purchaser at the Effective Time shall become be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation charter and bylaws Bylaws of the Surviving Corporation until the next annual meeting of stockholders and until each such director's successor is duly elected or appointed and qualified, each such officer's successor is duly appointed, as applicable. At the Effective Time, each Share issued and outstanding immediately prior to the Effective Time (other than (i) Shares held by any of the Company's subsidiaries, (ii) Shares held by Parent, IBA GP, Purchaser or any of their respective successors affiliates and (iii) Dissenting Shares (defined herein)) shall, together with associated Rights by virtue of the Merger, and without any action on the part of Purchaser, the Company or the holder thereof, be converted into and shall have been duly electedthe right to receive the Offer Price, designated or qualifiedwithout interest (the "Cash Merger Consideration"). However, or until their earlier death, resignation or removal in accordance with if between the certificate date of incorporation this Agreement and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation Shares shall determinehave been changed into a different number of shares or a different class by reason of any stock dividend, in its sole discretionsubdivision, reclassification, recapitalization, split, combination or exchange of shares, then the Cash Merger Consideration contemplated by the Merger shall be advisedcorrespondingly adjusted to reflect such stock dividend, that any deedssubdivision, bills reclassification, recapitalization, split, combination or exchange of saleshares. At the Effective Time, instruments of conveyanceeach Share, assignmentsthen owned by Parent, assurances or any other actions or things are necessary or desirable to vestIBA GP, perfect or confirm of record or otherwise in the Surviving Corporation its rightPurchaser, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired any direct or indirect wholly-owned subsidiary of Parent, IBA GP, Purchaser or the Company shall, by virtue of the Merger, be canceled and retired and will cease to exist and no payment shall be acquired by made without respect thereto. At the Effective Time, each share of common stock of Purchaser issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one fully-paid and non-assessable share of common stock, par value $0.001 per share, of the Surviving Corporation Corporation. As of the Effective Time, Purchaser shall deposit with such agent or agents as may be appointed (the "Payment Agent") for the benefit of the holders of Shares the amount of cash necessary to pay the Cash Merger Consideration (such cash is hereinafter referred to as the "Merger Fund") payable in exchange for outstanding Shares. At the Effective Time, each outstanding option to purchase Shares (a result of"Company Stock Option," or collectively, "Company Stock Options") issued pursuant to the Company's 1997 Equity Incentive Plan and its Second Amended and Restated 1986 Stock Option Plan (each a "Company Option Plan" or collectively, "Company Option Plans") shall vest in connection with, the Merger or otherwise to carry out this Agreement, then the officers full and directors of the Surviving Corporation shall be authorized pay to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf holder of each outstanding Company Stock Option an amount equal to the excess, if any, of the Offer Price over the exercise price per Share of such corporations Company Stock Option, less the amount of taxes required to be withheld under U.S. federal, state or otherwiselocal laws and regulations, all multiplied by the number of Shares subject to such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementCompany Stock Option.

The Merger. (a) Upon a. Subject to the terms and subject to the conditions set forth in this Agreementhereof, and in accordance with the DGCLGeorgia Business Corporation Code of the State of Georgia (the "Georgia Code") and the Nevada Private Corporation Act in the Nevada Revised Statutes ("Nevada Statutes") , at the Effective Time, Merger Sub shall Company will be merged with and into PENN. The Company and PENN agree to merge and execute the CompanyArticles of Merger and any and all documents necessary to complete the Merger. As a result of Following the Merger, the separate corporate existence of Merger Sub shall cease, and the Company PENN shall continue as the surviving corporation (the "Surviving Corporation") and the separate corporate existence of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). Company shall cease. b. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement Section 14-2-1106 of the Georgia Code. c. The Merger shall be consummated by filing with the Secretary of State of the States of Georgia and Nevada a certificate of merger in such form as is required by, and executed in accordance with, the applicable relevant provisions of the DGCL. Without limiting Georgia Code and the generality Nevada Statutes (the time of such filing, or the foregoingtime otherwise specified in such certificate, being the "Effective Time"). d. The Certificate of Incorporation of PENN as in effect at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, Time shall be the certificate Certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation Incorporation of the Surviving Corporation until thereafter changed amended in accordance with the provisions thereof and applicable law; provided, however, that in the event any further amendment or amended amendments to the Certificate of Incorporation of the Surviving Corporation shall be necessary or appropriate in the sole discretion of Company, which shall not be inconsistent with the terms of this Plan of Merger, the parties hereto agree to execute an appropriate amendment to this Plan of Merger to provide for such amendment or amendments to be made to the Certificate of Incorporation of the Surviving Corporation as provided therein or by applicable Law (subject to Section 5.8)of the Effective Time. In addition, The By-Laws of the Company as in effect at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, Time shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws By-Laws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation provisions thereof and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationapplicable law. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon On the terms and subject to the conditions set forth in of this Agreement, Chucktaylor will be merged (the “Merger”) with and into Merger Sub in accordance with the DGCL, at provisions of the DLLCA and the NYBCL. At the Effective Time, Merger Sub shall be merged with and into the Company. As a result Time of the Merger, Merger Sub will be the surviving entity and continue its existence as a limited liability company under the State of Delaware (the “Surviving Company”) and will continue to be a wholly owned Subsidiary of Victory, and the separate corporate existence of Merger Sub shall Chucktaylor will cease. (b) On the terms and subject to the conditions of this Agreement, as soon as practicable on the Closing Date, the Parties will file certificates of merger (together, the “Certificates of Merger”) with the Secretary of State of the State of Delaware and the Department of State of the State of New York, in such form as required by, and executed in accordance with, the Company shall continue as the surviving corporation relevant provisions of the Merger DLLCA and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)NYBCL. The Merger shall be effected pursuant will become effective at such date and time as is specified in the Certificates of Merger and as is agreed to by Victory and Chucktaylor (such date and time, the Section 251(h“Effective Time”). (c) of DGCL and shall At the Effective Time, the Merger will have the effects set forth in this Agreement and the applicable provisions of the DGCLDLLCA and the NYBCL. Without limiting the generality or effect of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company Chucktaylor and Merger Sub shall will vest in the Surviving Corporation, Company and all of the debts, liabilities and duties of the Company Chucktaylor and Merger Sub shall will become the debts, liabilities and duties of the Surviving CorporationCompany. (d) The certificate of formation of Merger Sub in effect at the Effective Time will be and remain the certificate of formation of the Surviving Company, until thereafter changed or amended as provided in the operating agreement of the Surviving Company or by applicable Law. The Offeroperating agreement of Merger Sub, the Merger and other transactions contemplated by this Agreement are referred as in effect immediately prior to herein as the “Transactions.” (b) At the Effective Time, by virtue of will be and remain the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation operating agreement of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation Company until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (ce) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of will be the Effective Time shall become the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation Company until their respective successors shall have been are duly elected, designated or qualified, or until their earlier death, resignation or removal appointed and qualified in accordance with the manner provided by the certificate of incorporation formation and bylaws operating agreement of the Surviving CorporationCompany or as otherwise provided by applicable Law. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after Time will be the Effective Time, shall continue as the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation Company until their respective successors shall have been are duly elected, designated or qualified, or until their earlier death, resignation or removal appointed and qualified in accordance with the manner provided by the certificate of incorporation formation and bylaws operating agreement of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired as otherwise provided by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementapplicable Law.

The Merger. (a) Upon the terms and subject Subject to the conditions set forth provisions of this Agreement and the Certificate of Merger substantially in this Agreementthe form of Exhibit A attached hereto (the "Certificate of Merger"), and in accordance with the DGCL, at the Effective Time, Merger Sub Companies shall be merged with and into the Sub in accordance with the provisions of the Alabama Business Corporation Act and the Alabama Limited Partnership Act (collectively, the "Merger Law"), whereupon the separate existence of the Companies shall cease and the Sub shall be the surviving corporation (the Sub and the Companies are sometimes herein referred to as the "Constituent Companies" and the Sub after the Merger is sometimes herein referred to as the "Surviving Company. "). (b) As a result soon as practicable after satisfaction or, to the extent permitted hereunder, waiver of all conditions to the Merger, the separate corporate existence Constituent Companies shall execute and file the Certificate of Merger Sub shall ceasewith the Secretary of State of the State of Alabama in accordance with the Merger Law, and the Company shall continue as the surviving corporation of otherwise make all other filings or recordings required by the Merger and a wholly-owned Subsidiary of Parent (Law in connection with the “Surviving Corporation”)Merger. The Merger shall be effected pursuant to become effective at such date and time as the Section 251(h) Certificate of DGCL Merger is duly filed with, and shall have accepted by, the effects set forth in this Agreement and the applicable provisions Secretary of State of the DGCL. Without limiting State of Alabama (the generality of the foregoing, at the "Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8"). (c) At the Effective Time, by virtue the separate existence of the Merger Companies shall cease and without the necessity Companies shall be merged with and into the Sub and the Sub shall be the Surviving Company, whose name thereafter shall be "CAPITOL CHEVROLET AND IMPORTS, INC.". (d) From and after the Effective Time: (i) the Articles of further action by Incorporation of the Surviving Company or any other personshall be the Articles of Incorporation of the Sub; (ii) the Bylaws of the Sub, the directors of Merger Sub as in effect immediately prior to the Effective Time or such other individuals designated by Parent as Time, shall be the Bylaws of the Surviving Company, until thereafter amended in accordance with applicable law; (iii) the directors of the Sub at the Effective Time shall become the directors of the Surviving CorporationCompany, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been are duly elected, designated elected or qualified, or until their earlier death, resignation or removal appointed and qualified in accordance with applicable law; and (iv) the certificate officers of incorporation and bylaws the Sub at the Effective Time shall become the initial officers of the Surviving Corporation. The officers Company, to serve at the pleasure of the Company board of directors of the Surviving Company. (e) At the Effective Time by virtue of the Merger and the applicable provisions of the Merger Law and without any further action on the part of the Constituent Companies or on the part of the Companies' shareholders and partners: (1) each share of common stock of the Sub outstanding immediately prior to the Effective TimeTime shall, from automatically and after without any action on the Effective Timepart of the holder thereof, shall continue as the officers be converted into one share of common stock of the Surviving CorporationCompany; (2) all of the Shares and all of the Partnership Interests (collectively, each the "Company Securities") shall, automatically and without any action on the part of the Seller, cease to hold office be outstanding and shall be converted into the right to receive the Merger Consideration (as defined in Section 1.2 below) in accordance with the certificate provisions of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsaid Section 1. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be governed by and effected pursuant to the Section 251(h) of the DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, in each case, as provided under the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsDGCL.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, (i) the certificate of incorporation of the Company, Company as in effect immediately prior to the Effective Time shall be amended and restated to read in its entirety in the form attached hereto as Exhibit A, shall be of the certificate of incorporation of the Surviving Corporationset forth on Exhibit A and, as so amended and such certificate of incorporation restated, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.86.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, (ii) the bylaws of the Company, Company as in effect immediately prior to the Effective Time shall be amended and restated to read in their entirety in the form attached hereto as Exhibit B, shall be of the bylaws of Merger Sub as in effect immediately prior to the Surviving CorporationEffective Time and, as so amended and such bylaws restated, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or and in the certificate of incorporation of the Surviving Corporation and by applicable Law (subject to Section 5.86.8). (c) At Notwithstanding anything in this Agreement to the contrary, if, at any time occurring on or after the Acceptance Time until the Effective Time, by virtue of any change in the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers outstanding Equity Interests of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation occur as a result ofof any reorganization, reclassification, recapitalization, stock split (including a reverse stock split), subdivision or combination, exchange or readjustment of shares, or in connection withany stock dividend or stock distribution (including any dividend or other distribution of securities convertible into Company Shares) with a record date during such period, the Merger or otherwise Consideration and any other similarly dependent items, as the case may be, will be equitably adjusted to carry out this Agreement, then reflect such change and provide the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf holders of each of Company Share and Company Equity Award the same economic effect as contemplated by this Agreement prior to such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementevent.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, Agreement and in accordance with the DGCLapplicable provisions of Delaware Law, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of Company (the “Merger”), the separate corporate existence of Merger Sub shall cease, thereupon cease and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)Merger. The Merger shall be effected pursuant to Company, as the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions surviving corporation of the DGCL. Without limiting the generality of the foregoingMerger, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are is sometimes referred to herein as the “TransactionsSurviving Corporation.” (b) At Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, Parent, Merger Sub and the Company shall cause the Merger to be consummated under Delaware Law by filing a certificate of merger (or a certificate of ownership and merger, as applicable) in customary form and substance (the “Certificate of Merger”) with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”) in accordance with the applicable provisions of Delaware Law. The time of such filing and acceptance by the Delaware Secretary of State, or such later time as may be mutually agreed in writing by Parent, Merger Sub and the Company and specified in the Certificate of Merger, is referred to herein as the “Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8).” (c) At In the Effective Time, by virtue event that Merger Sub shall hold a number of Company Shares so as to enable Parent to consummate the Merger pursuant to and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws Section 253 of the Surviving Corporation until their respective successors DGCL, whether as a result of the Offer (including any “subsequent offering period” provided by Parent and Merger Sub in connection therewith), the exercise of the Top-Up Option pursuant hereto or otherwise, Parent shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal take all necessary action to consummate and cause the Merger to become effective as soon as reasonably practicable thereafter (but in any event no later than the time period required by Section 2.3(a)) pursuant to and in accordance with the certificate of incorporation and bylaws Section 253 of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving CorporationDGCL. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at At the Effective Time, Merger Sub shall be merged (the “Merger”) with and into the Company. As a result Company in accordance with the Limited Liability Company Act of the MergerState of Delaware (“Delaware Law”), whereupon the separate corporate existence of Merger Sub shall cease, and the Company shall continue as be the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent limited liability company (the “Surviving CorporationCompany”). The Merger shall be effected pursuant to . (b) At the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoingClosing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest file a certificate of merger with the Delaware Secretary of State and make all other filings or recordings required by Delaware Law in connection with the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger. The Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as effective at such time (the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, ”) as the certificate of incorporation merger is duly filed with the Delaware Secretary of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)State. (c) At the Effective Time, by virtue of the Merger and without any action on the necessity part of further action by the Company any party or any other personPerson: (i) the Rollover Company Equity Interests outstanding immediately prior to the Effective Time shall be treated in accordance with the terms and conditions of the Rollover Agreement; (ii) the Remaining Company Equity Interests outstanding immediately prior to the Effective Time shall be converted into the right of the Seller holding such Remaining Company Equity Interests at such time to receive such Seller’s portion of the Purchase Price determined and paid as provided in Sections 2.04 and 2.05 and shall be subject to adjustment as provided in Sections 2.06 and 2.07 (collectively, the “Merger Consideration”); and (iii) the issued and outstanding limited liability company interests of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become a membership interest in the Surviving Company on the terms set forth in the amended and restated limited liability company agreement of the Company entered into at the Closing or otherwise as determined by the Buyer in its sole and absolute discretion; and, in each case in the foregoing clauses (i) through (iii), such Company Equity Interests or limited liability company interests of Merger Sub, as applicable, shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and shall thereafter represent only the right of the holders thereof to receive the applicable portion of the Merger Consideration, membership interests in the Surviving Company or other consideration as provided herein. (d) From and after the Effective Time, (i) the certificate of formation of the Company in effect immediately prior to the Effective Time shall be the certificate of formation of the Surviving Company and (ii) the amended and restated limited liability company agreement of the Company entered into at the Closing shall be the limited liability company agreement of the Surviving Company, in each case until thereafter amended in accordance therewith and with Applicable Law (subject, in each case, to Section 6.09). (e) From and after the Effective Time, (i) the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become be the directors of the Surviving CorporationCompany, each to hold office, from and after (ii) the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after the Effective Time, Time shall continue as be the officers of the Surviving CorporationCompany, in each to hold office case until their respective successors are duly elected or appointed and qualified in accordance with the certificate of incorporation and bylaws limited liability company agreement of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation Company and bylaws of the Surviving CorporationApplicable Law. (df) If, at any time From and after the Effective Time, the Surviving Corporation Company shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of possess all the rights, properties or assets powers, privileges and franchises and be subject to all of either the obligations, liabilities, restrictions and disabilities of each of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things case as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and provided under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementDelaware Law.

The Merger. (a) Upon On the terms and subject to the conditions set forth in of this Agreement, at the Effective Time, the Company and Merger Sub will consummate the Merger in accordance with the DGCL, such that, at the Effective Time, (i) Merger Sub shall will be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall will thereupon cease, and (ii) the Company shall continue as will be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary will continue to be governed by the Laws of Parent the State of Delaware, (iii) the corporate existence of the Company with all its rights, privileges, powers and franchises will continue and (iv) the Company will succeed to and assume all the rights and obligations of Merger Sub. The corporation surviving the Merger is sometimes referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall will have the effects set forth in this Agreement the DGCL and the applicable provisions will be governed by Section 251(h) of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest will be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become will be the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany will, as by virtue of the Merger, be amended and restated in its entirety to be in the form attached hereto set forth in Annex IV and, as Exhibit Aso amended, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall will be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law Law. (subject to Section 5.8). In addition, at c) At the Effective Time, by virtue of the Merger and without the necessity of any further action by on the part of the Company or any other PersonMerger Sub, the bylaws of the Company, as Company will be amended and restated in the form attached hereto as Exhibit B, shall their entirety to be identical to the bylaws of Merger Sub as in effect immediately prior to the Effective Time (except that such bylaws will be amended to reflect that the name of the Surviving CorporationCorporation will be Invuity, and such bylaws shall Inc.), and, as so amended, will be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personDGCL, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsuch bylaws. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLNRS, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLNRS. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue the articles of incorporation and bylaws of the Merger and without Surviving Corporation shall be identical to the necessity of further action by the Company or any other Person, the certificate articles of incorporation and bylaws, respectively, of the Company, as amended in effect immediately prior to the Effective Time and restated in the form attached hereto as Exhibit A, shall be the certificate articles of incorporation of the Surviving Corporationand bylaws, and such certificate of incorporation shall be the certificate of incorporation respectively, of the Surviving Corporation until thereafter changed or amended as provided therein or by in accordance with applicable Law (subject to Section 5.8). In addition, at and the Effective Time, by virtue applicable provisions of the Merger articles of incorporation and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)bylaws. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall Time, become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving CorporationCorporation and any applicable agreement with such officer. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “"Surviving Corporation”"). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “"Transactions.”" (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject Pursuant to the conditions set forth in this Agreementprovisions of Sections 53-12 and 53-13 of the General Statutes of North Carolina, and in accordance with the DGCL, at the Effective Time, Merger Sub New Bank shall be merged with and into the Company. As a result Bank (the "Merger") upon receipt of the Mergerall necessary governmental approvals, both state and federal, the separate corporate existence passage of any required waiting period and upon the filing of Articles of Merger Sub shall ceasewith the Secretary of State of North Carolina (the "Effective Time"), as hereinafter set forth. The Bank and the Company New Bank shall continue be referred to collectively herein as the surviving corporation "Merging Banks." The terms and conditions of the Merger and a wholly-owned Subsidiary shall be as follows: (a) The name of Parent the surviving bank (the “"Surviving Corporation”). The Merger Bank") shall be effected pursuant to "Four Oaks Bank & Trust Company." (b) The business of the Section 251(hSurviving Bank shall be that of a banking corporation and shall be conducted at the Surviving Bank's main office located in Four Oaks, North Carolina and at its legally established branches. (c) The Articles of Incorporation (Charter) of DGCL and shall have the effects set forth Bank, as in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, effect at the Effective Time, all shall be the Articles of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties Incorporation (Charter) of the Surviving Corporation. The Offer, the Merger and other transactions contemplated Bank until changed as provided by this Agreement are referred to herein as the “Transactionslaw.” (bd) The Bylaws of the Bank, as in effect at the Effective Time, shall be the Bylaws of the Surviving Bank until altered, amended, or repealed as therein provided. (e) At the Effective Time, by virtue the corporate existence of the Merger Merging Banks shall be merged into the Surviving Bank, and without the necessity of further action by Surviving Bank shall be deemed to be the Company or any other Personsame corporation as the Merging Banks. All rights, the certificate of incorporation franchises, and interests of the CompanyMerging Banks, as amended in and restated to all property, tangible and intangible, and all choses in action shall automatically and by operation of law be transferred to and vested in the form attached hereto as Exhibit A, shall be the certificate of incorporation Surviving Bank by reason of the Merger. The Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold officeBank shall, from and after the Effective Time, hold and enjoy all property rights, franchises, and interests, including appointments, powers, designations and nominations, and all other rights and interests as trustee, executor, administrator, agent, transfer agent and registrar of stocks and bonds, administrator of estates, assignee and receiver, and in accordance with every other fiduciary capacity and every agency capacity, in the certificate of incorporation same manner and bylaws of to the Surviving Corporation until their same extent as such rights, franchises, and interests were held and enjoyed by the respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merging Banks immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (df) If, at any time From and after the Effective Time, the Surviving Corporation Bank shall determinebe responsible and liable for all obligations of the Merging Banks, in its sole discretionand all deposits, debts, liabilities, obligations, and contracts of the Merging Banks, matured or unmatured, whether accrued, absolute, contingent, or otherwise, and whether or not reflected or reserved against the balance sheets, books of account or records of the Merging Banks, shall be advisedthose of, that any deedsand are hereby expressly assumed by, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title Bank and shall not be released or interest in, to or under any impaired by the Merger. (g) The directors and officers of the rights, properties or assets of either Bank as of the Company or Merger Sub acquired or to Effective Time shall be acquired by the Surviving Corporation as a result ofdirectors and officers, or in connection withrespectively, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation Bank from and after the Effective Time. The committees of the Surviving Bank shall be authorized to execute the same as, and deliver, in shall be composed of the name same persons who were serving on committees created and on behalf appointed by the Board of either Directors of the Company or Merger Sub, all such deeds, bills Bank as of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementEffective Time.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCLMBCA, at the Effective Time, Time the Company and Merger Sub shall consummate the Merger pursuant to which (i) Merger Sub shall be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall thereupon cease, and (ii) the Company shall continue as be the surviving corporation of in the Merger and a wholly-owned Subsidiary shall continue to be governed by the MBCA and (iii) the separate corporate existence of Parent (the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. The corporation surviving the Merger is sometimes hereinafter referred to as the “Surviving CorporationCompany”). The Parties agree that, for U.S. federal income tax purposes, Merger Sub (and its actions hereunder) shall be disregarded and the Merger shall be treated as a taxable purchase by Parent from shareholders of the Company of the Shares converted in the Merger. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions in Section 302A.641 of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsMBCA.” (b) At the Effective Time, by virtue (i) the Restated Articles of Incorporation of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation as in effect as of the Company, as Agreement Date (the “Company Charter”) shall be amended and restated in their entirety to be identical to the form attached hereto as Exhibit A, A and as so amended shall be the certificate articles of incorporation of the Surviving CorporationCompany, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by in accordance with applicable Law Law, and (subject ii) the Third Restated Bylaws of the Company as in effect as of the Agreement Date (the “Company Bylaws”) shall be amended in their entirety to Section 5.8). In addition, at read the same as the bylaws of Merger Sub immediately prior to the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as so amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCompany, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by in accordance with applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold officeshall, from and after the Effective Time, be the initial directors of the Surviving Company, each to hold office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving CorporationCompany. The officers of the Company immediately individuals specified by Parent prior to the Effective Time, from and after the Effective Time, shall continue as be the initial officers of the Surviving CorporationCompany, each to hold office in accordance with the certificate articles of incorporation and bylaws of the Surviving Corporation Company until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate articles of incorporation and bylaws of the Surviving CorporationCompany. (d) If, If at any time after the Effective Time, the Surviving Corporation Company shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation Company its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation Company as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation Company shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation Company or otherwise to carry out this Agreement.

The Merger. (a) Upon At the Effective Time and subject to and upon the terms and subject to the conditions set forth in of this Agreement, the Articles of Merger attached hereto as Exhibit D (the "Certificate of Merger") and in accordance with the DGCL, at applicable provisions of the Effective TimePennsylvania Business Corporation Law ("Pennsylvania Law") and Ohio General Corporation Law ("Ohio Law"), Merger Sub shall be merged with and into the Company. As a result of the MergerTarget, the separate corporate existence of Merger Sub shall cease, cease and the Company Target shall continue as the surviving corporation. Target as the surviving corporation of after the Merger and a wholly-owned Subsidiary is hereinafter sometimes referred to as the "Surviving Corporation." Notwithstanding the foregoing or any other provision of Parent this Agreement, at any time prior to Closing, Acquiror shall have an option (the “Surviving Corporation”). The Merger "Restructuring Option") to elect that, following the Merger, Target shall be effected pursuant to merged with and into Merger Sub, the Section 251(h) separate corporate existence of DGCL and Target shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoingcease, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in continue as the Surviving Corporation, and all provided, however, that exercise of the debtsRestructuring Option shall not have any adverse effect on (i) the amount of Merger Consideration payable to holders of Target Common Stock, liabilities and duties of or (ii) the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue Tax consequences of the Merger and without the necessity to holders of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Target Common Stock. In addition, at the Effective Time, by virtue of event Acquiror effects the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately Restructuring Option prior to the Effective Time or such other individuals designated by Parent as Closing, (i) in lieu of the Effective Time shall become the directors Certificate of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue Merger attached as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective TimeExhibit D, the Surviving Corporation Parties shall determineexecute a Certificate of Merger (as required by and as defined in Ohio Law and Pennsylvania Law) to effect the Merger of Target into Merger Sub, in its sole discretion, or such Certificate of Merger shall be advised, that any deeds, bills deemed the "Certificate of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or Merger" for all purposes under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors (ii) all other provisions of this Agreement relating to the Surviving Corporation shall be authorized deemed automatically amended to execute and deliver, in reflect the name and on behalf of either Restructuring Option to the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be extent necessary or desirable to vestappropriate, perfect or confirm and (iii) the Merger Sub shall expressly assume (within the meaning of Treasury Regulation Section 1.461-4(d)(5)(i)) any and all rightliabilities of Target arising out of Target's trade or business that Target, title or interest inbut for the economic performance requirements of Section 461(h) of the Code, would have been entitled to and under such rights, properties or assets in incur as of the Surviving Corporation or otherwise to carry out this AgreementEffective Time.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)) and an indirect wholly owned Subsidiary of Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement Agreement, the Certificate of Merger, and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, in each case, as provided under the Merger and other transactions contemplated by this Agreement are referred to herein as the “TransactionsDGCL.” (b) At Subject to Section 6.4, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, Surviving Corporation shall be the certificate of incorporation of Merger Sub as in effect immediately prior to the Surviving CorporationEffective Time, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (Law; provided that the name of the Surviving Corporation shall be “Tri Pointe Homes, Inc.”. In addition, subject to Section 5.8). In addition6.4, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, Surviving Corporation shall be the bylaws of Merger Sub as in effect immediately prior to the Surviving CorporationEffective Time, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or and by the certificate of incorporation of the Surviving Corporation and applicable Law (subject to Section 5.8)Law; provided that the name of the Surviving Corporation shall be “Tri Pointe Homes, Inc.”. (c) At The Parties shall take all action necessary to cause, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become to be the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as be the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, the Company Charter shall, by virtue of the Merger Merger, be amended and without the necessity of further action by the Company or any other Person, restated in its entirety to read as the certificate of incorporation of Merger Sub as in effect immediately prior to the CompanyEffective Time, as amended and restated in the form attached hereto as Exhibit A, except that all references therein to Merger Sub shall be the certificate of incorporation of deemed to be references to the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject Law. The bylaws of Merger Sub, as in effect immediately prior to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws except that all references therein to Merger Sub shall be the bylaws of deemed to be references to the Surviving Corporation Corporation, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the The directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) The Merger shall be effected pursuant to Section 251(h) of the DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. The parties agree to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable following the Acceptance Time, without a meeting of stockholders of the Company in accordance with Section 251(h) of the DGCL. (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other PersonMerger, the certificate of incorporation of the CompanySurviving Corporation shall be amended and restated, so as to read in its entirety in the form set forth as Exhibit A hereto, and as so amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended and restated, so as to read in its entirety in the form set forth as Exhibit B hereto, and such bylaws as so amended and restated shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (cd) At From and after the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personCompany, the directors of Merger Sub the Purchaser immediately prior to the Effective Time or such other individuals designated by the Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The From and after the Effective Time, except as determined by the Parent, the officers of the Company immediately prior to the Effective Time, from and after the Effective Time, Time shall continue as be the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (de) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out the purposes of this Agreement, then the officers and directors of the Parent and the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations corporation or otherwise, all such other actions and things as may be lawful and necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out the purposes of this Agreement. (f) Upon the terms and subject to the conditions of this Agreement, if at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding Equity Interests of the Company shall occur as a result of any reclassification, recapitalization, stock split (including a reverse stock split), subdivision or combination, exchange or readjustment of shares, or any dividend or distribution with a record date during such period, the Offer Price and the Merger Consideration will be equitably adjusted to reflect such change.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub the Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub the Purchaser shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”). The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub the Purchaser shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub the Purchaser shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective TimeThe Company Certificate shall, subject to Section 5.9, by virtue of the Merger Merger, be amended and without the necessity of further action by the Company or any other Person, restated in its entirety to read as the certificate of incorporation of the CompanyPurchaser, as in effect immediately prior to the Effective Time, except that Article I thereof shall read as follows: “the name of the Corporation is “Sybase, Inc.” and all references therein to the Purchaser shall be automatically amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of become references to the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject Law. The bylaws of the Purchaser, as in effect immediately prior to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Personshall, the bylaws of the Companysubject to Section 5.9, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws except that all references therein to the Purchaser shall be the bylaws of automatically amended and shall become references to the Surviving Corporation Corporation, until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (c) At the Effective Time, by virtue The directors of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub Purchaser immediately prior to the Effective Time or such other individuals designated by Parent as of shall, from and after the Effective Time shall become Time, be the initial directors of the Surviving Corporation, each to hold office, from and after the Effective Time, office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective TimeTime shall, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Subthe Purchaser, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger the Company and Sub shall consummate a merger (the “Merger”) in accordance with the DGCL pursuant to which (i) Sub will be merged with and into the Company. As a result of the Merger, Company and the separate corporate existence of Merger Sub shall will thereupon cease, and ; (ii) the Company shall continue as will be the successor or surviving corporation of in the Merger and a wholly-owned Subsidiary will continue to be governed by the Laws of Parent the State of Delaware; (iii) the corporate existence of the Company with all its rights, privileges, powers and franchises will continue; and (iv) the Company will succeed to and assume all the rights and obligations of Sub. The corporation surviving the Merger is sometimes hereinafter referred to as the “Surviving Corporation”). .” The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest be vested in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyCompany shall, as by virtue of the Merger, be amended and restated in its entirety to be in the form attached hereto of Annex III and, as Exhibit Aso amended, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (Law, subject to the provisions of Section 5.8). In addition, at 6.8 hereof. (c) At the Effective Time, by virtue of the Merger and without the necessity of any further action by on the part of the Company or any other PersonSub, the bylaws of the Company, as Company shall be amended and restated in the form attached hereto as Exhibit B, shall their entirety to be identical to the bylaws of Sub as in effect immediately prior to the Effective Time (except that such bylaws shall be amended to reflect that the name of the Surviving CorporationCorporation shall be Icagen, and such bylaws Inc.), and, as so amended, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personDGCL, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporationsuch bylaws. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon Endo, HoldCo, AcquireCo and Auxilium agree that the Merger shall be implemented in accordance with and subject to the terms and conditions contained in this Agreement. (b) On the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at on the Effective TimeClosing Date, Merger Sub AcquireCo shall be merged with and into Auxilium. At the Company. As a result of the MergerMerger Effective Time, the separate corporate existence of Merger Sub AcquireCo shall cease, cease and the Company Auxilium shall continue as the surviving corporation of company in the Merger and a wholly-owned Subsidiary of Parent (the “Surviving CorporationCompany”). (c) Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the parties to the Merger shall file with the Secretary of State of the State of Delaware the Certificate of Merger, executed and acknowledged in accordance with the relevant provisions of the DGCL, and, as soon as practicable on or after the Closing Date, shall make all other filings required under the DGCL or by the Secretary of State of the State of Delaware in connection with the Merger. The Merger shall be effected pursuant to become effective at the Section 251(h) time that the Certificate of DGCL Merger has been duly filed with the Secretary of State of the State of Delaware, or at such later time as HoldCo and Auxilium shall agree and specify in the Certificate of Merger. At and immediately after the Merger Effective Time, the Merger will have the effects set forth in this Agreement the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (bd) At the Merger Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the CompanyAuxilium shall be amended in its entirety to read as set forth in Exhibit A hereto and, as amended and restated in the form attached hereto as Exhibit Aso amended, shall be constitute the certificate of incorporation of the Surviving CorporationCompany, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, at The Parties shall take all actions necessary so that the by-laws substantially in the form set forth in Exhibit B hereto shall be the by-laws of the Surviving Company as of the Merger Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. (ce) The directors of the Surviving Company upon completion of the Merger shall, until the earlier of their resignation or removal or until their respective successors are duly appointed, elected and qualified, as the case may be, consist of the directors of AcquireCo prior to the Merger Effective Time. The officers of AcquireCo immediately prior to the Merger Effective Time shall be the officers of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be. (f) At the Merger Effective Time, by virtue of the Merger and without any action on the necessity part of further action by the Company Parties or any other personof their respective shareholders: (i) Each share of common stock, the directors par value $0.01 per share, of Merger Sub AcquireCo issued and outstanding immediately prior to the Merger Effective Time shall be converted into one fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Company. Each share of preferred stock, par value $0.01 per share, of AcquireCo issued and outstanding immediately prior to the Merger Effective Time shall be converted into one fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Company. Each share of Redeemable Class A Common Stock, par value $0.01 per share, of AcquireCo issued and outstanding immediately prior to the Merger Effective Time shall be converted into the right to receive $0.01 per share. (ii) Each Excluded Share outstanding immediately prior to the Merger Effective Time shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and no consideration shall be delivered in exchange therefor, subject to any rights the holder thereof may have under Section 2.1(k) and the DGCL. (iii) Subject to Section 2.1(g), each Auxilium Share issued and outstanding immediately prior to the Merger Effective Time (other than (x) Auxilium Shares owned by Endo, AcquireCo or any other direct or indirect wholly owned Subsidiary of Endo and Auxilium Shares owned by Auxilium or any direct or indirect wholly owned Subsidiary of Auxilium, and in each case not held on behalf of third parties (it being acknowledged and agreed by Auxilium that it hereby waives the right to receive the Merger Consideration in respect of Auxilium Shares owned by Auxilium or any direct or indirect wholly owned Subsidiary of Auxilium), and (y) Auxilium Shares that are owned by stockholders (“Dissenting Stockholders”) who have perfected and not withdrawn a demand for appraisal rights pursuant to Section 262 of the DGCL (the Auxilium Shares referred to in this clause (y) and the preceding clause (x) being referred to herein collectively as “Excluded Shares”) and (z) Restricted Auxilium Shares (which shall be converted pursuant to Section 2.1(l)(ii)) shall be converted, at the election of the holder thereof in accordance with Section 2.1(g)(iii)(A), into the right to receive: (A) for each Auxilium Share with respect to which a Standard Election has been made pursuant to Section 2.1(g)(iii)(A) and remains in effect at the Election Deadline, (1) an amount in cash equal to the Cash Amount and (2) a fraction of a validly issued, fully paid and non-assessable Endo Share equal to the Exchange Ratio; (B) for each Auxilium Share with respect to which a Cash Election has been made pursuant to Section 2.1(g)(iii)(A) and remains in effect at the Election Deadline, an amount of cash equal to the Un-prorated Cash Election Amount; provided, however, that, if the Aggregate Cash Consideration would be greater than the Maximum Cash Consideration, the consideration to be received in respect of each Auxilium Share covered by Cash Elections shall automatically be adjusted in accordance with Section 2.1(g)(iii)(D); and (C) for each Auxilium Share with respect to which a Stock Election has been made pursuant to Section 2.1(g)(iii)(A) and remains in effect at the Election Deadline, a fraction of a validly issued, fully paid and non-assessable Endo Share equal to the Un-prorated Stock Election Ratio; provided, however, that, if the Aggregate Stock Consideration would be greater than the Maximum Stock Consideration, the consideration to be received in respect of each Auxilium Share covered by Stock Elections shall automatically be adjusted in accordance with Section 2.1(g)(iii)(D). All such Auxilium Shares, when so converted, shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate (or evidence of shares in book-entry form) that immediately prior to the Merger Effective Time represented any such Auxilium Share (each, a “Certificate”) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, including the right to receive, pursuant to Section 2.1(i), cash in lieu of fractional Endo Shares, if any. Notwithstanding the foregoing, if, between the date of this Agreement and the Merger Effective Time, the outstanding Endo Shares or Auxilium Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend (including any dividend or distribution of securities convertible into Endo Shares), subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, then any number or amount contained herein which is based upon the number of Endo Shares or Auxilium Shares, as the case may be, will be appropriately adjusted to provide to Auxilium and the holders of Auxilium Shares the same economic effect as contemplated by this Agreement prior to such event. (g) The exchange of Certificates shall be effected as follows: (i) Prior to the Election Form Mailing Date, HoldCo shall appoint a bank or trust company reasonably acceptable to Auxilium to act as exchange agent (the “Exchange Agent”) for the payment and delivery of the Merger Consideration. At or prior to the Merger Effective Time, Endo shall issue, fully paid, the Endo Shares to be delivered as Merger Consideration and deposit with the Exchange Agent, for the benefit of the holders of Certificates, for exchange in accordance with this ARTICLE II through the Exchange Agent, the aggregate cash consideration and certificates representing the Endo Shares to be delivered as Merger Consideration (or, if uncertificated Endo Shares will be delivered, Endo shall make appropriate alternative arrangements). (ii) An election form in such form as HoldCo shall reasonably specify and as shall be reasonably acceptable to Auxilium (the “Election Form”) shall be mailed on a date to be mutually agreed by HoldCo and Auxilium that is not more than forty-five (45) days nor less than thirty (30) days prior to the anticipated Closing Date or on such other individuals designated by Parent date as HoldCo and Auxilium shall mutually agree (the “Election Form Mailing Date”) to each holder of record of Auxilium Shares as of the Effective Time close of business on the fifth (5th) Business Day prior to the Election Form Mailing Date (the “Election Form Record Date”). HoldCo shall make available one or more Election Forms as may reasonably be requested from time to time by all Persons who become holders (or beneficial owners) of Auxilium Shares between the directors Election Form Record Date and the close of business on the Surviving CorporationBusiness Day prior to the Election Deadline, each and Auxilium shall provide to hold officethe Exchange Agent all information reasonably necessary for it to perform as specified herein. (iii) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of an Auxilium Share, from and after subject to the Effective Timelimitations set forth in this Section 2.1(g)(iii), to submit an election (each, an “Election”) in accordance with the certificate following procedures: (A) Each holder of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal an Auxilium Share may specify in a request made in accordance with the certificate provisions of incorporation this Section 2.1(g)(iii) whether such holder elects to receive with respect to a specified number or all of such holder’s Auxilium Shares (x) the consideration set forth in Section 2.1(f)(iii)(A) (such consideration, the “Standard Election Consideration” and bylaws such Election with respect to such number of Auxilium Shares, the Surviving Corporation. The officers “Standard Election”), (y) the consideration set forth in Section 2.1(f)(iii)(B) (such consideration, the “Cash Election Consideration” and such Election with respect to such number of Auxilium Shares, the Company immediately prior “Cash Election”), or (z) the consideration set forth in Section 2.1(f)(iii)(C) (such consideration, the “Stock Election Consideration” and such Election with respect to such number of Auxilium Shares, the Effective Time, from and after the Effective Time, shall continue as the officers “Stock Election”). (B) Any holder of the Surviving Corporation, each to hold office an Auxilium Share who does not properly make an Election in accordance with the certificate provisions of incorporation and bylaws of this Section 2.1(g)(iii), or whose Election is not received by the Surviving Corporation until their respective successors Exchange Agent prior to the Election Deadline in the manner provided in Section 2.1(g)(iii)(C), will be deemed to have made the Standard Election. (C) Any Election set forth in this Section 2.1(g)(iii) shall have been duly electedmade properly only if the Exchange Agent shall have received, designated by the Election Deadline, an Election Form properly completed and signed indicating such Election. Any holder of an Auxilium Share may, at any time prior to the Election Deadline, change or qualifiedrevoke such holder’s Election by written notice received by the Exchange Agent prior to the Election Deadline accompanied by a properly completed and signed revised Election Form. HoldCo, in the exercise of its reasonable discretion, shall have the right to make all determinations, not inconsistent with the terms of this Agreement, governing (x) the validity of the Election Form and compliance by any holder of an Auxilium Share with the Election procedures set forth herein and (y) the manner and extent to which Elections are to be taken into account in making the determinations prescribed in Section 2.1(f). If HoldCo shall determine in its reasonable discretion that any Election is not properly made with respect to any Auxilium Share (it being understood that none of the Parties nor the Exchange Agent is under any duty to notify any holder of any such defect), such Election shall be deemed to be not in effect, subject to Section 2.1(g)(iii)(B). (D) Not later than five (5) days after the Election Deadline, HoldCo shall cause the Exchange Agent to effect the following prorations to the Merger Consideration: (1) for each Auxilium Share with respect to which a Cash Election has been made pursuant to Section 2.1(g)(iii)(A) and remains in effect at the Election Deadline, if the Aggregate Cash Consideration would be greater than the Maximum Cash Consideration, each Auxilium Share covered by a Cash Election shall, instead of being converted into the right to receive the Un-prorated Cash Election Amount, automatically be converted into the right to receive (I) an amount in cash, without interest, equal to the product of (x) the Un-prorated Cash Election Amount multiplied by (y) a fraction, the numerator of which shall be (1) the Maximum Cash Consideration and the denominator of which shall be (2) the Aggregate Cash Consideration (such fraction, the “Cash Fraction”), and (II) a fraction of a validly issued, fully paid and non-assessable Endo Share equal to the product of (x) the Un-prorated Stock Election Ratio multiplied by (y) a fraction equal to one (1) minus the Cash Fraction; and (2) for each Auxilium Share with respect to which a Stock Election has been made pursuant to Section 2.1(g)(iii)(A) and remains in effect at the Election Deadline, if the Aggregate Stock Consideration would be greater than the Maximum Stock Consideration, each Auxilium Share covered by a Stock Election shall, instead of being converted into the right to receive the Un-prorated Stock Election Ratio, automatically be converted into the right to receive (I) a fraction of a validly issued, fully paid and non-assessable Endo Share equal to the product of (x) the Un-prorated Stock Election Ratio multiplied by (y) a fraction, the numerator of which shall be (1) the Maximum Stock Consideration and the denominator of which shall be (2) the Aggregate Stock Consideration (such fraction, the “Stock Fraction”) and (II) an amount in cash, without interest, equal to (x) the Un-prorated Cash Election Amount multiplied by (y) a fraction equal to one (1) minus the Stock Fraction. (iv) As promptly as reasonably practicable after the Merger Effective Time (and in any event within four (4) Business Days after the Merger Effective Time), HoldCo shall cause the Exchange Agent to mail to each holder of record of Auxilium Shares a form of letter of transmittal (the “Letter of Transmittal”) which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent, shall be in such form and have such other provisions (including customary provisions with respect to delivery of an “agent’s message” with respect to shares held in book-entry form) as Auxilium may specify acting reasonably, and shall be prepared prior to the Closing, together with instructions thereto. (v) Upon (A) in the case of Auxilium Shares represented by a Certificate, the surrender of such Certificate for cancellation to the Exchange Agent or until their earlier death(B) in the case of Auxilium Shares held in book-entry form, resignation or removal the receipt of an “agent’s message” by the Exchange Agent, in each case together with the Letter of Transmittal, duly, completely and validly executed in accordance with the certificate of incorporation instructions thereto, and bylaws of such other documents as may reasonably be required by the Surviving Corporation. (d) If, at any time after the Effective TimeExchange Agent, the Surviving Corporation shall determine, in its sole discretion, or holder of such Auxilium Shares shall be advised, entitled to receive in exchange therefor the Merger Consideration into which such Auxilium Shares have been converted pursuant to Section 2.1(f) (after taking into account all Auxilium Shares then held by such holder and the Election(s) made with respect to such Auxilium Shares by such holder). In the event of a transfer of ownership of Auxilium Shares that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise is not registered in the Surviving Corporation its right, title or interest in, to or under any transfer records of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection withAuxilium, the applicable Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as Consideration may be necessary or desirable delivered to vesta transferee, perfect or confirm any and all rightif the Certificate representing such Auxilium Share (or, title or interest in, to and under if such rights, properties or assets Auxilium Share is held in the Surviving Corporation or otherwise to carry out this Agreement.book-entr

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCLapplicable provisions of the MBCA and DLLCA, following the OpCo Sale and Distribution and at the Effective Time, Merger Sub New HoldCo shall be merged merge with and into the CompanyPropCo Merger Sub. As a result of the Merger, the separate corporate existence of Merger Sub New HoldCo shall cease, and the Company PropCo Merger Sub shall continue as the surviving corporation entity of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving CorporationCompany”)) and a wholly owned Subsidiary of PropCo Buyer. The Merger shall be effected pursuant to the Section 251(h) applicable provisions of DGCL the MBCA and DLLCA, and shall have the effects set forth in this Agreement and the applicable provisions of the DGCLMBCA and DLLCA. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company New HoldCo and PropCo Merger Sub shall vest in the Surviving CorporationCompany, and all of the debts, liabilities and duties of the Company New HoldCo and PropCo Merger Sub (which, for the avoidance of doubt, does not include OpCo and its Subsidiaries) shall become the debts, liabilities and duties of the Surviving CorporationCompany. The OfferPre-Closing Restructuring, the OpCo Sale, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions”.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company New HoldCo or any other Person, the certificate of incorporation formation of the Company, PropCo Merger Sub shall continue as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation formation of the Surviving CorporationCompany until thereafter changed or amended as provided therein or by applicable Law, and such certificate the limited liability company agreement of incorporation PropCo Merger Sub shall be continue as the certificate of incorporation limited liability company agreement of the Surviving Corporation Company until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.88.9). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation Company shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation Company its right, title or interest in, to or under any of the rights, properties or assets of either of the Company New HoldCo or PropCo Merger Sub acquired or to be acquired by the Surviving Corporation Company as a result of, or in connection with, the Merger or otherwise to carry out this AgreementMerger, then the officers and directors of the Surviving Corporation Company shall be authorized to execute and deliver, in the name and on behalf of either the Company New HoldCo or PropCo Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementCompany.

The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger and a wholly-owned Subsidiary of Parent (the “Surviving Corporation”)) and a wholly owned Subsidiary of Parent. The Merger shall be effected pursuant to the Section 251(h) of DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, Surviving Corporation shall be amended so as amended and restated to read in its entirety in the form attached hereto as Exhibit A, shall be of the certificate of incorporation of Merger Sub immediately prior to the Surviving CorporationEffective Time, and such certificate of incorporation as so amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8)Law. In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving CorporationCorporation shall be amended so as to read in its entirety in the form of the bylaws of Merger Sub immediately prior to the Effective Time, and such bylaws as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.85.9). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other personPerson, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent shall be appointed as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, office from and after the Effective Time, Time in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company Merger Sub immediately prior to the Effective Time, from and after the Effective Time, Time shall continue be appointed as the officers of the Surviving Corporation, each to hold office from and after the Effective Time in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

The Merger. (a) Upon the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall the Company will be merged with and into Merger Sub in accordance with the Companyprovisions of the Delaware Limited Liability Company Act (6 Del. C. §§ 18-101 et seq.), as amended from time to time (the "Delaware Act"), and the Colorado Business Corporation Act (the "CBCA"). As a result of the Merger, the separate corporate existence of the Company shall cease and Merger Sub shall ceasecontinue its existence under the laws of the State of Delaware as the surviving company (in such capacity, Merger Sub is sometimes referred to herein as the "Surviving Company"). (b) At the Closing, the Company and Merger Sub shall cause a certificate of merger substantially in the form of Exhibit A hereto (the "Certificate of Merger") to be executed, acknowledged and filed with the Secretary of State of the State of Delaware and make all other filings or recordings required by the Delaware Act in connection with the Merger. Additionally, at the Closing, the Company and Merger Sub shall cause a statement of merger substantially in the form of Exhibit B hereto (the "Statement of Merger") to be executed, acknowledged and filed with the Secretary of State of the State of Colorado and make all other filings or recordings required by the CBCA in connection with the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware and the Statement of Merger is duly filed with the Secretary of State of the State of Colorado or at such other time as Parent and the Company shall continue as agree and specify in the surviving corporation Certificate of the Merger and a wholly-owned Subsidiary Statement of Parent Merger (the “Surviving Corporation”"Effective Time"). The Merger shall be effected pursuant to the Section 251(h. (c) of DGCL From and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at after the Effective Time, the Surviving Company shall succeed to all of the propertyassets, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and be subject to all of the debtsLiabilities, liabilities restrictions, disabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation, and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, as provided in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to this Agreement and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this AgreementDelaware Act and the CBCA.

The Merger. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub Subsidiary shall be merged (the "Merger") with and into the Company. As a result Company in accordance with the Pennsylvania Business Corporation Law of 1988, as amended (the Merger"PBCL"), whereupon the separate corporate existence of Merger Sub Subsidiary shall cease, and the Company shall continue be the surviving corporation. The corporation surviving the Merger is sometimes hereinafter referred to as the surviving corporation "Surviving Corporation." Notwithstanding the foregoing, in the event that Parent in its sole discretion elects to structure the Merger so that the Company shall be merged with and into Merger Subsidiary (a "Forward Subsidiary Merger Election"), and provides written notice of such election to the Company prior to the mailing of any Company Proxy Statement (as defined in Section 4.8(a) hereof), the separate existence of the Company shall cease and Merger Subsidiary shall be the "Surviving Corporation," and a wholly-owned this Agreement shall be deemed amended to the extent necessary to provide for such. (b) On the date of the Closing (as defined in Section 2.1(d) hereof), as soon as practicable after the satisfaction or waiver in accordance with the terms of this Agreement of all of the conditions to the Merger set forth in Article IX hereof, each of the Company and Merger Subsidiary will cause articles of Parent merger (the “Surviving Corporation”)"Articles of Merger") to be executed and filed with the Department of State of the Commonwealth of Pennsylvania as provided in Sections 1926 and 1927 of the PBCL, which shall reflect any Forward Subsidiary Merger Election, if applicable, and will make all other filings or recordings required by the PBCL in connection with the Merger. The Merger shall be effected pursuant to become effective at such time as the Section 251(hArticles of Merger are duly filed with the Department of State of the Commonwealth of Pennsylvania or at such later time as is agreed upon by the parties hereto and specified in the Articles of Merger (the "Effective Time"). (c) of DGCL From and after the Effective Time, the Merger shall have the effects set forth in this Agreement Agreement, the Articles of Merger and the applicable provisions of the DGCLPBCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rightsreal, privilegespersonal and mixed, immunities, powers and franchises of the Company and Merger Sub Subsidiary shall transfer to and vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. The Offer, the Merger and other transactions contemplated by this Agreement are referred to herein as the “Transactions.” (b) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company, as amended and restated in the form attached hereto as Exhibit A, Subsidiary shall be the certificate of incorporation of the Surviving Corporation, transferred to and such certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). In addition, at the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the bylaws of the Company, as amended and restated vested in the form attached hereto as Exhibit B, shall be the bylaws of the Surviving Corporation, and such bylaws shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (subject to Section 5.8). (c) At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. (d) IfThe closing of the Merger (the "Closing") shall take place (i) at the offices of Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at any time 10:00 A.M., New York City time, no later than the second business day after the Effective Time, last of the Surviving Corporation shall determine, conditions set forth in its sole discretion, or Article IX hereof shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances satisfied or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise waived in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out accordance with this Agreement, then the officers or (ii) at such other place, time and directors of the Surviving Corporation shall be authorized to execute date as Parent, Merger Subsidiary and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreementshall agree.