AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

Grubb & Ellis Company,

and

Dated as of May 22, 2007

TABLE OF CONTENTS

				Page
ARTICLE I
DEFINITIONS
SECTION 1.1		Definitions		1
SECTION 1.2		Additional Definitions		8
ARTICLE II
THE MERGER
SECTION 2.1		The Merger		10
SECTION 2.2		The Closing		10
SECTION 2.3		Effective Time		10
SECTION 2.4		Certificate of Incorporation and By-Laws		10
SECTION 2.5		Directors and Officers of Surviving Corporation		10
SECTION 2.6		Directors and Officers of Parent		10
SECTION 2.7		Rule 145		11
ARTICLE III
EFFECT OF THE MERGER
SECTION 3.1		Effect on Capital Stock		11
SECTION 3.2		Payment to Company Stockholders		12
SECTION 3.3		Treatment of Options and Restricted Stock		14
SECTION 3.4		Lost Certificates		15
SECTION 3.5		Adjustments		15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.1		Corporate Status		16
SECTION 4.2		Authorization; Noncontravention		16
SECTION 4.3		Capital Structure		17
SECTION 4.4		Real Property		18
SECTION 4.5		Intellectual Property		19
SECTION 4.6		Environmental Matters		19
SECTION 4.7		Legal Proceedings		19
SECTION 4.8		Taxes		20
SECTION 4.9		Labor		20
SECTION 4.10		Employee Benefit Plans		20
SECTION 4.11		Compliance with Laws		21
SECTION 4.12		Company Contracts		21
SECTION 4.13		Company Financial Statements		23
SECTION 4.14		Absence of Certain Changes		24
SECTION 4.15		Insurance		24
SECTION 4.16		Brokers’ Fees		24
SECTION 4.17		Opinion of Financial Advisor		24
SECTION 4.18		Title to Assets		24
SECTION 4.19		Company Accounting Practices		24
SECTION 4.20		Transactions with Insiders		25
SECTION 4.21		State Takeover Laws		25
SECTION 4.22		Information Provided; S-1 Registration Statement		25
SECTION 4.23		Vote Required		25
SECTION 4.24		Ownership of Parent Common Stock		25

				Page
SECTION 4.25		Release and Waiver		26
SECTION 4.26		TIC Interests and REIT Compliance		26
SECTION 4.27		Regulatory Authorizations and Compliance		26
SECTION 4.28		Tax Representations		25
SECTION 4.29		Disclaimer of Other Representations and Warranties		25
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
SECTION 5.1		Corporate Status		26
SECTION 5.2		Authorization; Noncontravention		26
SECTION 5.3		Capital Structure		27
SECTION 5.4		Real Property		28
SECTION 5.5		Intellectual Property		29
SECTION 5.6		Environmental Matters		29
SECTION 5.7		Legal Proceedings		30
SECTION 5.8		Taxes		30
SECTION 5.9		Labor		30
SECTION 5.10		Employee Benefit Plans		31
SECTION 5.11		Compliance with Laws		32
SECTION 5.12		Parent Contracts		32
SECTION 5.13		Parent SEC Reports and Parent Financial Statements		33
SECTION 5.14		Absence of Certain Changes		34
SECTION 5.15		Insurance		34
SECTION 5.16		Brokers’ Fees		34
SECTION 5.17		Opinion of Financial Advisor		34
SECTION 5.18		Title to Assets		35
SECTION 5.19		Sarbanes-Oxley		35
SECTION 5.20		Transactions with Insiders		35
SECTION 5.21		State Takeover Laws		35
SECTION 5.22		Form S-4 and Joint Proxy Statement		35
SECTION 5.23		Vote Required		35
SECTION 5.24		Ownership of Company Common Stock		35
SECTION 5.25		Release and Waiver		37
SECTION 5.26		Regulatory Authorizations and Compliance		37
SECTION 5.27		Disclaimer of Other Representations and Warranties		38
ARTICLE VI
COVENANTS
SECTION 6.1		Conduct of the Business by the Company		38
SECTION 6.2		Conduct of the Business by Parent		38
SECTION 6.3		No Solicitation; Other Offers		39
SECTION 6.4		Stockholders Meetings		42
SECTION 6.5		Tax Matters		43
SECTION 6.6		Filings; Authorizations		43
SECTION 6.7		Director and Officer Liability; Indemnification		44
SECTION 6.8		Access to Information		45
SECTION 6.9		Publicity		46
SECTION 6.10		Preparation of the Form S-4 and the Joint Proxy Statement		46
SECTION 6.11		Cooperation		47
SECTION 6.12		Employment and Employee Benefit Matters		47
SECTION 6.13		Merger Sub		48
SECTION 6.14		Stockholder Litigation		48
SECTION 6.15		Termination of Credit Agreement		48
SECTION 6.16		Resignation of Directors		48
SECTION 6.17		Notification of Certain Matters		48
SECTION 6.18		Special Purpose Acquisition Company		48
SECTION 6.19		NYSE Listing		48

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SECTION 6.20		Rule 16b-3		49
SECTION 6.21		State Takeover Laws		49
SECTION 6.22		Company Officer’s Certificate		49
SECTION 6.23		Company Registration Statement		49
SECTION 6.24		Intellectual Property License		54
SECTION 6.25		Company Affiliate Transactions		54
ARTICLE VII
CONDITIONS OF CLOSING
SECTION 7.1		Conditions to Each Party’s Obligations		49
SECTION 7.2		Additional Conditions to Obligations of Parent and Merger Sub		49
SECTION 7.3		Additional Conditions to Obligations of the Company		50
ARTICLE VIII
TERMINATION
SECTION 8.1		Termination of Agreement		51
SECTION 8.2		Deposit; Fees and Expenses		53
SECTION 8.3		Effect of Termination		53
ARTICLE IX
MISCELLANEOUS
SECTION 9.1		Non-Survival of Representations, Warranties and Agreements		54
SECTION 9.2		Assignment; Binding Effect		54
SECTION 9.3		Choice of Law; Jurisdiction		54
SECTION 9.4		Notices		54
SECTION 9.5		Headings		55
SECTION 9.6		Entire Agreement		55
SECTION 9.7		Interpretation		55
SECTION 9.8		Waiver and Amendment		56
SECTION 9.9		Counterparts; Facsimile or Electronic Signatures		56
SECTION 9.10		Third-Party Beneficiaries		56
SECTION 9.11		Severability		56
ANNEXES
Annex A                    Accelerated Restricted Stock
EXHIBITS
Exhibit A		Form of Company Voting Agreements
Exhibit B		Form of Parent Voting Agreement
Exhibit C		Escrow Agreement
Exhibit D		Exhibit D Form of Merger Sub Certificate of Incorporation
Exhibit E		Exhibit E Form of Merger Sub By-Laws
Exhibit F		License Agreement

SCHEDULES

Schedule 2.5
Schedule 2.6
Schedule 2.7
Schedule 4.13
Schedule 6.25
Company Disclosure Letter
Parent Disclosure Letter

AGREEMENT AND PLAN OF MERGER

          THIS AGREEMENT AND PLAN OF MERGER is made and entered into and effective as of May ___, 2007 by and among Grubb & Ellis Company, a Delaware corporation (“ Parent ”), B/C Corporate Holdings, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (“ Merger Sub ”), and NNN Realty Advisors, Inc., a Delaware corporation (the “ Company ”). Capitalized terms used in this Agreement and not otherwise defined shall have the meanings given to such terms in Article I.

RECITALS

          WHEREAS, the Board of Directors of each of Parent, Merger Sub and the Company has approved and declared advisable this Agreement and the merger of Merger Sub with and into the Company (the “ Merger ”) upon the terms and subject to the conditions set forth in this Agreement, whereby, among other things, each issued and outstanding share of common stock, par value $0.01 per share, of the Company (the “ Company Common Stock ”) not owned by Parent, Merger Sub or the Company will be converted into the right to receive the Per Share Merger Consideration;

          WHEREAS, concurrently with the execution and delivery of this Agreement, certain holders (collectively, the “ Principal Company Stockholders ”) of issued and outstanding Company Common Stock are entering into agreements with Parent in the form annexed hereto as Exhibit A (the “ Company Voting Agreements ”) pursuant to which, among other things, the Principal Company Stockholders will agree to vote all of their Company Common Stock in favor of adopting this Agreement;

          WHEREAS, concurrently with the execution and delivery of this Agreement, certain holders (collectively, the “ Principal Parent Stockholders ”) of issued and outstanding shares of common stock, par value $0.01 per share, of Parent (the “ Parent Common Stock ”) are entering into agreements with the Company in the form annexed hereto as Exhibit B (the “ Parent Voting Agreements ”) pursuant to which, among other things, the Principal Parent Stockholders will agree to vote all of their Parent Common Stock in favor of the issuance of Parent Common Stock pursuant to this Agreement, electing the New Board and approving the Parent Certificate of Incorporation of Amendment; and

          WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

          NOW, THEREFORE, in consideration of the foregoing, the representations, warranties, covenants and agreements set forth in this Agreement, and other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

          SECTION 1.1 Definitions . For purposes of this Agreement, the following terms, when used in this Agreement, shall have the meanings assigned to them in this Section 1.1:

          “ Action ” means any action, cause of action, claim, prosecution, investigation, suit, litigation, complaint, grievance, arbitration, audit (other than regular audits of financial statements by outside auditors), compliance review, inspection, hearing, administrative or other proceeding, whether civil, criminal or administrative, at Law or in equity, by or before any Governmental Entity.

          “ Affiliate ” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person. A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.

          “ Agreement ” means this Agreement and Plan of Merger, as the same may be amended or supplemented and all schedules delivered concurrently herewith, including, but not limited to, the Company Disclosure Letter and Parent Disclosure Letter.

          “ Business Day ” means any day, other than a Saturday, Sunday or a day on which the banks or national securities exchanges located in New York, New York shall be authorized or required by Law to close.

          “ Company Confidentiality Agreement ” means that certain letter agreement between the Company and Parent dated April 20, 2007.

          “ Company Credit Agreement ” means the Syndicated Credit Facility Loan Agreement, dated as of February 20, 2007, by and among NNN Realty Advisors, Inc., Triple Net Properties, LLC, Triple Net Properties Realty, Inc., the lenders named therein and LaSalle Bank National Association, as agent, and the financial institutions that may from time to time become a party thereto, and any amendments, supplements or modifications thereto not prohibited by Section 6.1.

          “ Company Disclosure Letter ” means the disclosure letter of the Company referred to in Article IV.

          “ Company Material Adverse Effect ” means any effect, development, change, event or circumstance that, individually or in the aggregate with all other changes, effects, developments, events and circumstances, has, or reasonably could have, a material adverse effect on the business, results of operations, condition (financial or otherwise), assets or liabilities of the Company and its Subsidiaries, taken as a whole, other than any change, event or circumstance arising out of: (i) general economic, legal, regulatory or political conditions in the United States of America; (ii) conditions generally affecting the industries in which the Company and its Subsidiaries operate (provided, that the impact on the Company and its Subsidiaries taken as a whole is not materially disproportionate to the impact on other similarly situated entities); (iii) the announcement or pendency of the Merger or the entry into this Agreement or any agreement contemplated hereunder and the consummation of the transactions contemplated hereby including, but not limited to, the impact thereof on or with respect to its relationship, contractual or otherwise, with the Company’s or any of its Subsidiaries’ clients, affiliates, licensors, independent contractors, employees (other than the termination or resignation of Mr. Scott D. Peters), agents or representatives; (iv) the Company’s performance of its obligations under this Agreement and compliance with the covenants set forth herein; (v) the commencement or escalation of a war or armed hostilities or the occurrence of acts of terrorism or sabotage (provided, that the impact on the Company is not materially disproportionate to the impact on other similarly situated entities); or (vi) compliance with the requirements of changes in Law or GAAP or any interpretation thereof.

          “ Company Plans ” means all employee benefit plans (as defined in Section 3(3) of ERISA) and all bonus, incentive, stock option, stock purchase, restricted stock, phantom stock or other stock-based compensation, deferred compensation, medical, life insurance, disability, fringe benefit, supplemental executive retirement, severance or other benefit plans, programs, policies, practices, trusts or arrangements, and all material employment, termination, severance, change in control, compensation or other Contracts or agreements, to which the Company or any of its ERISA Affiliates is a party, or which are sponsored, maintained or contributed to by the Company or any of its ERISA Affiliates and any material Contracts, arrangements or agreements between the Company or any of its ERISA Affiliates and any current or former employee, director or consultant of the Company or of any of its Subsidiaries, including any Contracts, arrangements or agreements relating to a change in control of the Company; provided , however , that the term “Company Plans” shall exclude any plan that is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

          “ Company Stock Plan ” means the NNN Realty Advisors, Inc. 2006 Long Term Incentive Plan.

          “ Competing Proposal ” means with respect to the Company or the Parent any inquiry, proposal or offer from any Third Party relating to (i) any direct or indirect acquisition or purchase, in a single transaction or a series of transactions, of (A) 20% or more (based on the fair market value thereof, as determined by the Board of Directors of such Person) of the assets (including capital stock of such Person’s Subsidiaries) of such Person and its Subsidiaries, taken as a whole, or (B) 20% or more of the outstanding shares of the voting securities of the Company; (ii) any tender offer or exchange offer that, if consummated, would result in any Third Party owning,

directly or indirectly, 20% or more of the outstanding shares of the voting securities of such Person; or (iii) any merger, consolidation, business combination, share exchange or similar transaction involving such Person pursuant to which any Third Party would own, directly or indirectly, 20% or more of any class of equity securities of such Person or of the surviving entity in a merger or the resulting direct or indirect parent of such Person or such surviving entity, other than, in each case, the transactions contemplated by this Agreement.

          “ Contract ” means any contract, agreement, arrangement, authorization, obligation, plan, understanding, commitment, lease, purchase order, license, mortgage, indenture, note, bond, concession agreement, franchise agreement or other instrument in each case (whether written or oral), including all amendments thereto to which any Person is a party or that is binding on any Person or its capital stock, its assets or business.

          “ Copyrights ” means all rights in works of authorship or creation, wherever existing worldwide, including, but not limited to, documents, compilations, data, code, computer programs, software, mask works, schematics, flow charts, databases, pamphlets, instructional materials, notes, designs, drawings and all derivative compilations thereof, and all registrations and applications to register the same.

          “ Encumbrance ” means any conditional sale agreement, default of title, easement, encroachment, lien, encumbrance, security interest, pledge, mortgage, hypothecation, charge, restriction on transfer of title, adverse claim, title retention agreement or other security arrangement of any nature or kind, or other encumbrance or any adverse right or interest, charge, or claim of any nature whatsoever of, on, or with respect to any property or property interest, except for any restrictions arising under any applicable securities Laws.

          “ Environment ” means ambient air, indoor air, surface water, groundwater and surface and subsurface strata and natural resources such as wetlands, flora and fauna.

          “ Environmental Law ” means any and all Laws relating to pollution or protection of human health or the Environment (including ambient air, surface water, ground water, land surface, or subsurface strata), or emissions, discharges, releases, or threatened releases of, or the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of, any Hazardous Material, including, without limitation, (A) the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“ CERCLA ”) and the Occupational Safety and Health Act; (B) the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§6901 et seq., (“ RCRA” ); (C) the Emergency Planning and Community Right to Know Act (42 U.S.C. §§11001 et seq.); (D) the Clean Air Act (42 U.S.C. §§ 7401 et seq.); (E) the Federal Water Pollution Control Act (33 U.S.C. I 1251 et seq.); (F) the Toxic Substances Control Act (15 U.S.C. I 2601 et seq.); (G) the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.); (H) the Safe Drinking Water Act (41 U.S.C. I 300f et seq.); (I) any state, county, municipal or local Laws similar or analogous to the federal Laws listed in parts (A)-(H) of this subparagraph; (J) any amendments to the Laws listed in parts (A)-(I) of this subparagraph; (K) any Laws or orders adopted pursuant to or implementing the Laws listed in parts (A)-(J) of this subparagraph; and (L) any other Law or order in effect relating to environmental protection.

          “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.

          “ ERISA Affiliate ” means any entity which together with any Person would be deemed a “single employer” within the meaning of Section 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA.

          “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

          “ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time.

          “ Governmental Entity ” means any domestic or foreign, transnational, national, federal, state, county, municipal or local government, or any other domestic or foreign governmental, regulatory or administrative authority, or any agency, board, department, commission, court, tribunal or instrumentality thereof.

          “ Hazardous Materials ” means any pollutant, contaminant, waste, chemical, compound, substance or material, including, without limitation, RCRA hazardous wastes, CERCLA hazardous substances, any petroleum or petroleum product or by-product and any constituents thereof, urea formaldehyde insulation, mold, lead in paint or drinking water, radon, polychlorinated biphenyls (PCBs), or asbestos or asbestos-containing material, defined as or deemed hazardous or toxic or otherwise regulated under any Environmental Law.

          “ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

          “ Indebtedness ” means, with respect to any Person, without duplication: (i) (A) indebtedness for borrowed money, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (C) all letters of credit issued for the account of such Person; (D) all obligations of the Person for the deferred purchase price of property or services; (E) all obligations of the Person as lessee under leases that have been or should be, in accordance with GAAP, classified as capital leases; (F) all obligations of the Person as lessee under any lease (including leases that may be terminated by lessee at any time) of any property (whether real, personal or mixed) that is not a capital lease in accordance with GAAP but in respect of which the lessee retains or obtains ownership of the property so leased for federal income tax purposes; and (ii) indebtedness for borrowed money of any other Person guaranteed, directly or indirectly, in any manner by such Person; provided , however , that Indebtedness shall not be deemed to include (A) any accounts payable or trade payables incurred in the ordinary course of business of such Person, or (B) any intercompany indebtedness between any Person and any direct or indirect wholly owned Subsidiary of such Person or between any direct or indirect wholly owned Subsidiaries of such Person.

          “ Intellectual Property ” means all Trademarks, Patents, Copyrights, Trade Secrets, service marks, service mark rights, computer programs, and any other proprietary intellectual property rights, wherever existing worldwide.

          “ Judgment ” means any applicable administrative decision or award, injunction, quasi-judicial decision or award, ruling, writ, judgment, order or decree of any Governmental Entity.

          “ Labor Laws ” means any applicable Law relating to employment standards, employee rights, health and safety, labor relations, workplace safety and insurance and/or pay equity.

          “ Law ” means any applicable statute, code, rule, regulation, ordinance, Judgment, law (including common law) or other pronouncement of any Governmental Entity having the effect of law.

          “ NYSE ” means the New York Stock Exchange.

          “ Parent Confidentiality Agreement ” means that certain letter agreement between Parent and Company dated February 21, 2007.

          “ Parent Credit Agreement ” means the Amended and Restated Credit Agreement, dated as of April 14, 2006, by and among Parent, as borrower, the guarantors named therein, Deutsche Bank Trust Company Americas, as administrative agent and as syndication agent, the financial institutions identified therein as lenders, and Deutsche Bank Securities Inc., as sole book running manager and sole lead arranger, as amended by each of that certain First Letter Amendment dated as of June 16, 2006, and that certain Second Letter Amendment dated as of February 16, 2007, and any amendments, supplements or modifications thereto not prohibited by Section 6.2.

          “ Parent Disclosure Letter ” means the disclosure letter of Parent referred to in Article V.

          “ Parent Material Adverse Effect ” means any effect, development, change, event or circumstance that, individually or in the aggregate with all other changes, effects, developments, events and circumstances, has, or reasonably could have, a material adverse effect on the business, results of operations, condition (financial or otherwise), assets or liabilities of Parent and its Subsidiaries, taken as a whole, other than any change, event or circumstance arising out of: (i) general economic, legal, regulatory or political conditions in the United States of

America; (ii) conditions generally affecting the industries in which Parent and its Subsidiaries operate (provided, that the impact on Parent and its Subsidiaries taken as a whole is not materially disproportionate to the impact on other similarly situated entities); (iii) the announcement or pendency of the Merger or the entry into this Agreement or any agreement contemplated hereunder and the consummation of the transactions contemplated hereby including, but not limited to, the impact thereof on or with respect to its relationship, contractual or otherwise, with Parent or any of its Subsidiaries’ clients, affiliates, licensors, independent contractors, employees, agents or representatives; (iv) Parent’s performance of its obligations under this Agreement and compliance with the covenants set forth herein; (v) any decrease in the market price of Parent Common Stock in and of itself (but not any change, event or circumstance that may be underlying such decrease to the extent that such change, event or circumstance would otherwise constitute a Parent Material Adverse Effect); (vi) any change in the securities markets generally (provided, that the impact on Parent is not materially disproportionate to the impact on other similarly situated entities); (vii) the commencement or escalation of a war or armed hostilities or the occurrence of acts of terrorism or sabotage (provided, that the impact on Parent is not materially disproportionate to the impact on other similarly situated entities); or (viii) compliance with the requirements of changes in Law or GAAP or any interpretation thereof.

          “ Parent Plans ” means all employee benefit plans (as defined in Section 3(3) of ERISA) and all bonus, incentive, stock option, stock purchase, restricted stock, phantom stock or other stock-based compensation, deferred compensation, medical, life insurance, disability, fringe benefit, supplemental executive retirement, severance or other benefit plans, programs, policies, practices, trusts or arrangements, and all material employment, termination, severance, change in control, compensation or other Contracts or agreements, to which Parent or any of its ERISA Affiliates is a party, or which are sponsored, maintained or contributed to by Parent or any of its ERISA Affiliates and any material Contracts, arrangements or agreements between Parent or any of its ERISA Affiliates and any current or former employee, director or consultant of Parent or of any of its Subsidiaries, including any Contracts, arrangements or agreements relating to a change in control of Parent; provided , however , that the term “Parent Plans” shall exclude any plan that is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

          “ Parent SEC Reports ” means all forms, proxy statements, registration statements, reports, schedules and other documents filed, or required to be filed, by Parent with the SEC since July 1, 2004.

          “ Parent Stock Plans ” means each of Parent’s 1990 Amended and Restated Stock Option Plan, 1993 Stock Option Plan for Outside Directors, 1998 Stock Option Plan, 2000 Stock Option Plan and 2006 Omnibus Equity Plan.

          “ Patents ” means all patents, patent rights and patent applications, including divisions, continuations, continuations-in-part, reissues, re-examinations, and all extensions thereof, issued or pending worldwide.

          “ Permits ” means, collectively, all applicable consents, approvals, permits, orders, authorizations, licenses and registrations from Governmental Entities.

          “ Permitted Encumbrance ” means: (i) mechanics’, carriers’, workers’, repairers’, materialmen’s, warehousemen’s, construction and other Encumbrances arising or incurred in the ordinary course of business and not yet due and payable or being contested in good faith by appropriate proceedings; (ii) Encumbrances for Taxes, utilities and other governmental charges that, in each case, are not yet due or payable, are being contested in good faith by appropriate proceedings or may thereafter be paid without giving rise to any material penalty or material additional cost or liability; (iii) matters of record or registered Encumbrances affecting title to any owned or leased real property of a Person and its Subsidiaries; (iv) requirements and restrictions of zoning, building and other applicable Laws and municipal by-laws, and development, site plan, subdivision or other agreements with municipalities that do not individually or in the aggregate materially and adversely affect the use of the owned or leased Parent Real Property in the case of the Parent and its Subsidiaries or the Company Real Property in the case of the Company and its Subsidiaries affected thereby as currently used in the business of such Person and its Subsidiaries; (v) Encumbrances of landlords or lessors or tenants under leases or rental agreements for amounts not yet due and payable; (vi) Encumbrances arising under conditional sales Contracts and equipment leases with third parties entered into in the ordinary course of business generally consistent with past practice; (vii) minor defects,

irregularities or imperfections of title and other Encumbrances which, individually or in the aggregate, do not materially impair the continued use (in a manner generally consistent with current use in the business of the Person and its Subsidiaries) of the asset or property to which they relate; and (viii) (A) with respect to the Company and its Subsidiaries, Encumbrances arising under the Company Credit Agreement or set forth in Section 1.1 on the Company Disclosure Letter and (B) with respect to Parent and its Subsidiaries, Encumbrances arising under the Parent Credit Agreement or as set forth in Section 1.1 on Parent Disclosure Letter.

          “ Person ” means an association, a corporation, an individual, a partnership, a limited partnership, a limited liability company, an unlimited liability company, a trust or any other entity or organization, including a Governmental Entity.

          “ Release ” means any spilling, leaking, pumping, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping or disposing of Hazardous Materials (including the abandonment or discarding of barrels, containers or other closed receptacles containing Hazardous Materials) into or through the Environment or into or out of any real property, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater or property.

          “ Representatives ” means the directors, officers, employees, agents, investment bankers, attorneys, accountants and advisors of either Parent and Merger Sub, on the one hand, or the Company, on the other hand, as the context requires.

          “ SEC ” means the Securities and Exchange Commission.

          “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

          “ Subsidiary ” of any Person means, any Person (i) the accounts of which would be consolidated with and into those of the applicable Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which (A) securities or other ownership interests representing more than 50% of the equity or (B) more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests and, in the case of a limited liability company, more than 50% of the managing member, as of such date, are owned, controlled or held by the applicable Person or one or more Subsidiaries of such Person. For purposes of this definition, a Subsidiary of the Company shall not include (i) any tenant in common program for which a Subsidiary of the Company serves as a managing member unless any such tenant in common program is, or should be, consolidated in the Company’s or any of its Subsidiaries’ financial statements in accordance with GAAP or (ii) any advisor or managing member or general partner of a REIT limited partnership or limited liability company unless any such advisor, managing member or general partner is or should be consolidated in the Company’s or any of its Subsidiaries’ financial statements in accordance with GAAP.

          “ Superior Proposal ” means with respect to the Company or the Parent any bona fide Competing Proposal ( provided that the applicable percentages in the definition of “Competing Proposal” shall be in excess of 50% as opposed to 20%) which such Person’s Board of Directors determines in good faith (after consultation with its financial advisors and outside counsel) is on terms that are more favorable to the holders of its common stock (other than Parent, Merger Sub and their Affiliates in the case of a Competing Proposal with respect to the Company and other than the Company and its Affiliates in the case of a Competing Proposal in respect of the Parent) than the Merger, after taking into account all relevant factors, including, but not limited to, financial terms (including any financing commitments), the conditions to the consummation thereof, the likelihood of such Competing Proposal being consummated and all other aspects of such Competing Proposal and of this Agreement.

          “ Tax ” means any foreign, federal, state or local income, sales and use, excise, franchise, real and personal property, gross receipt, capital stock, production, business and occupation, disability, estimated, employment, payroll, severance or withholding tax or other tax, duty, fee, impost, levy, assessment or charge imposed by any taxing authority, and any interest or penalties and other additions to tax related thereto.

          “ Tax Returns ” means any return, report, declaration, information return or other document required to be filed with any Tax authority with respect to Taxes, including any amendments thereof.

          “ Third Party ” means any Person other than Parent, the Company or any of their respective Affiliates.

          “ Trade Secrets ” means all proprietary information, confidential information, formulas, processes, data, know-how, devices or compilations of information improvements, discoveries and technical developments, wherever existing worldwide, including, but not limited to, all new and useful processes, techniques, machines, manufacturers and compositions of matter, including improvements thereto or derivatives therefrom protectable under trade secret laws.

          “ Trademarks ” means all trademarks, trademark rights, trade names, trade name rights, service marks, brands, brand names, logos, trade dress and business names, wherever existing worldwide, together with the goodwill associated with any of the foregoing, and all registrations and applications for registration of the foregoing and registrations of Internet domain names.

          “ Transfer Taxes ” means any sales, use, stock transfer, real property transfer, real property gains, stamp, documentary or similar taxes together with any interest or other additions to tax related thereto.

          SECTION 1.2 Additional Definitions . For purposes of this Agreement, the following terms, when used in this Agreement, shall have the meanings assigned to them in the identified Section:

Term		Section
Adverse Recommendation Change		6.3(d)
Aggregated Adjusted Options		3.3(a)
Aggregate Share Merger Consideration		3.1(c)
Certificate of Merger		2.3
Claim		6.7(b)
Closing		2.2
Closing Date		2.2
Code		3.2(f)
Company		Preamble
Company Common Stock		Recitals
Company Contracts		4.12(a)
Company Insiders		3.3(g)
Company Leases		4.4(b)
Company Multiemployer Plans		4.10(a)(ii)
Company Owned Real Property		4.4(a)
Company Real Property		4.4(c)
Company Restricted Stock		3.3(c)
Company Stock Option		3.3(a)(i)
Company Stockholder Approval		4.2(a)(ii)
Company Stockholders Meeting		6.4(a)
Company Tenant Lease		4.4(b)
Company Voting Agreements		Recitals
Continuing Employees		6.12(a)
Deposit		8.2
DGCL		2.1
DGCL Modifications		6.3
D&O Indemnitees		6.7(a)
Dissenting Shares		3.1(d)
Dissenters’ Rights Statute		3.1(d)
Effective Time		2.3
Escrow Agent		8.2
Escrow Agreement		8.2
Exchange Agent		3.2(a)
Form S-4		6.10
IRS		5.10(a)(iii)
Joint Proxy Statement		6.10
License Agreement		6.24
Merger		Recitals
Merger Sub		Preamble
New Board		2.6
Notice of Adverse Change		6.3(e)
Notice of Proposal		6.3(c)
Notice of Superior Proposal		6.3(e)
Outside Date		8.1(b)(i)
Parent		Preamble
Parent Certificate of Incorporation Amendment		5.2(a)(i)
Parent Common Stock		Recitals
Parent Contracts		5.12(a)
Parent Leases		5.4(b)
Parent Multiemployer Plans		5.10(a)(ii)

Term		Section
Parent Owned Real Property		5.4(a)
Parent Real Property		5.4(c)
Parent Restricted Stock		3.3(c)
Parent Stockholder Approval		5.2(a)(ii)
Parent Stockholders Meeting		6.4(b)
Parent Tenant Lease		5.4(b)
Parent Voting Agreements		Recitals
Payoff Letters		6.15
Per Share Merger Consideration		3.1(c)
Permanent Restraint		8.1(b)(v)
Principal Company Stockholders		Recitals
Principal Parent Stockholders		Recitals
Proxy Statement		6.10
Registration Statement		6.23
REITs		4.26
Reorganization		6.5
Restraints		7.1(d)
Surviving Corporation		2.1
TIC Interests		4.26

ARTICLE II

          SECTION 2.1 The Merger . 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 ”), Merger Sub shall be merged with and into the Company at the Effective Time. At the Effective Time, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation in the Merger and shall become a wholly owned Subsidiary of Parent (the “ Surviving Corporation ”) and shall succeed to and assume all the rights and obligations of Merger Sub in accordance with the DGCL. The Merger otherwise shall have the effects set forth in Section 3.1 and in the DGCL.

          SECTION 2.2 The Closing . The closing of the Merger (the “ Closing ”) will take place at 10:00 a.m. (New York Time) on a date to be specified by the parties which shall be no later than the second Business Day after satisfaction or, to the extent permitted by Law, waiver of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), at the offices of Alston & Bird LLP, 90 Park Avenue, New York, New York 10016, unless another date or place is agreed to in writing by the parties hereto. The date upon which the Closing shall occur is referred to herein as the “ Closing Date .”

          SECTION 2.3 Effective Time . Subject to the provisions of this Agreement, on the Closing Date or as soon as practicable thereafter, the Company shall file the certificate of merger (the “ Certificate of Merger ”) executed in accordance with the relevant provisions of the DGCL, and shall make all other filings or recordings required under the DGCL in order for the Merger to become effective. The Merger shall become effective at such time as the Certificate of Merger is accepted by the Secretary of State of Delaware or at such later date and/or time as Parent, Merger Sub and the Company shall agree and shall specify in the Certificate of Merger (the time the Merger becomes effective, being referred to herein as the “ Effective Time ”).

          SECTION 2.4 Certificate of Incorporation and By-Laws . At the Effective Time,

     (a) the Certificate of Incorporation of the Company as in effect immediately prior to the Effective Time shall by virtue of the Merger, be amended and restated in its entirety to read as the Certificate of Incorporation of the Merger Sub as in effect immediately prior to the Effective Time in the form attached hereto as Exhibit D , provided that such Certificate of Incorporation shall be amended to reflect that the name of the Surviving Corporation shall be “NNN Realty Advisors, Inc.” and

     (b) the By-Laws of the Merger Sub as in effect immediately prior to the Effective Time shall be the By-Laws of the Surviving Corporation in the form attached hereto as Exhibit E until thereafter changed or amended as provided by the Certificate of Incorporation of the Surviving Corporation, such By-Laws or applicable Law provided that such By-Laws shall be amended to reflect that the name of the Surviving Corporation shall be “NNN Realty Advisors, Inc.”.

          SECTION 2.5 Directors and Officers of Surviving Corporation . At the Effective Time, the initial directors of the Surviving Corporation shall be the persons designated on Schedule 2.5 hereto, each of such directors to hold office, subject to the applicable provisions of the Certificate of Incorporation and By-Laws of the Surviving Corporation, until such director’s death, resignation or removal or until such director’s successor is duly elected and qualified, as the case may be. At the Effective Time, the initial officers of the Surviving Corporation shall be the persons designated on Schedule 2.5 hereto, each of such officers to hold office, subject to the applicable provisions of the Certificate of Incorporation and By-Laws of the Surviving Corporation, until such officer’s death, resignation or removal or until such officer’s successor is duly elected and qualified, as the case may be.

          SECTION 2.6 Directors and Officers of Parent . The parties will take all action necessary such that as of the Effective Time (i) the Board of Directors of Parent shall consist of 9 members, (ii) the Board of Directors of Parent shall be classified and comprise three (3) classes of directors with such respective terms set forth on Schedule 2.6 ; and (iii) the composition of the Board of Directors of Parent shall be determined in accordance

with Schedule 2.6 hereto (the “ New Board ”). The parties shall take such actions as are necessary to structure the Board of Directors of Parent and each committee thereof to satisfy applicable NYSE and SEC regulations. At the Effective Time, the initial officers of Parent shall be the persons designated on Schedule 2.6 hereto each such officer’s compensation to be on the terms set forth on Schedule 2.6 , each of such officers to hold office, subject to the applicable provisions of the Certificate of Incorporation and By-Laws of the Surviving Corporation, until such officer’s death, resignation or removal or until such officer’s successor is duly elected and qualified, as the case may be.

          SECTION 2.7 Rule 145 . All shares of Parent Common Stock issued pursuant to this Agreement to “affiliates” of the Company set forth on Schedule 2.7 will be subject to certain resale restrictions under Rule 145 under the Securities Act. The Company will provide Parent with such information and documents as Parent reasonably requests for purposes of reviewing the list of affiliates included on Schedule 2.7 . The Company will use its reasonable best efforts to deliver or cause to be delivered to Parent, as promptly as practicable on or following the date hereof, from each such affiliate an executed affiliate agreement pursuant to which such affiliate shall agree to be bound by the provisions of Rule 145 promulgated under the Securities Act. Parent will give stop transfer instructions to its transfer agent with respect to any Parent Common Stock received pursuant to the Merger by any such affiliate and there will be placed on the certificates representing such Parent Common Stock, or any substitutions therefor, a legend stating in substance that the shares were issued in a transaction to which Rule 145 promulgated under the Securities Act applies and may only be transferred (a) in conformity with Rule 145 or (b) in accordance with a written opinion of counsel, reasonably acceptable to Parent in form or substance, that such transfer is exempt from registration under the Securities Act.

ARTICLE III

EFFECT OF THE MERGER

          SECTION 3.1 Effect on Capital Stock . At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of Company Common Stock or any shares of capital stock of Merger Sub:

     (a) Common Stock of Merger Sub . Each issued and outstanding share of common stock of Merger Sub shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.

     (b) Cancellation of Treasury Stock . Each share of Company Common Stock owned by the Company, any Subsidiary of the Company, Parent or any Subsidiary of Parent shall automatically be canceled and retired and shall cease to exist and no payment shall be made with respect thereto.

     (c) Conversion of Company Common Stock . Except as otherwise provided in Sections 3.1(d) and 3.1(e), other than shares to be canceled in accordance with Section 3.1(b), each share of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive, without interest, that fraction (expressed as a decimal) of a share of Parent Common Stock that is equal to the Per Share Merger Consideration. For the purposes of this Agreement, “ Per Share Merger Consideration ” means 0.88 of a validly issued, fully paid and nonassessable share of Parent Common Stock for every one (1) share of Company Common Stock issued and outstanding immediately prior to the Effective Time subject to the proviso at the end of the immediately following sentence, and subject to adjustment only in accordance with Section 3.5. The “ Aggregate Share Merger Consideration ” shall equal the aggregate number of shares of Parent Common Stock to be issued (i) for Company Common Stock issued and outstanding immediately prior to the Effective Time and (ii) for restricted shares of Company Common Stock in accordance with Section 3.3, provided , however , that in no event shall the Aggregate Share Merger Consideration exceed more than 38,533,094 shares of Parent Common Stock. At the Effective Time, all shares of Company Common Stock converted into the right to receive the Per Share Merger Consideration pursuant to this Article III shall automatically be canceled, cease to exist and no longer be outstanding, and each holder of a certificate that immediately prior to the

Effective Time represented any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration and a check for any cash in lieu of fractional shares of Parent Common Stock upon the surrender of such certificate in accordance with Section 3.2(b) and in each case without interest.

     (d) Dissenters’ Rights . Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are outstanding immediately prior to the Effective Time and that are held by any Person who is entitled to demand and properly demands appraisal of such shares pursuant to Section 262 of the DGCL (the “ Dissenters’ Rights Statute ”) who did not vote in favor of the Merger or consent thereto in writing and who complies in all other respects with the Dissenters’ Rights Statute (such shares, “ Dissenting Shares ”) shall not be converted into the right to receive the Per Share Merger Consideration as provided in Section 3.1(c), but the holders of Dissenting Shares shall instead be entitled to receive payment of the fair value of such Dissenting Shares in accordance with the Dissenters’ Rights Statute; provided , however , that if any such holder shall fail to perfect or otherwise shall validly waive, withdraw or lose the right to receive payment of the fair value of such Dissenting Shares under the Dissenters’ Rights Statute, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares shall cease and such Dissenting Shares shall be deemed to have been converted at the Effective Time into, and to have become exchangeable solely for, the right to receive the Per Share Merger Consideration, without interest, as provided in Section 3.1(c). At the Effective Time, all Dissenting Shares shall automatically be canceled, cease to exist and no longer be outstanding, and each holder of a certificate that immediately prior to the Effective Time represented any Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive either payment of the fair value of such Dissenting Shares in accordance with the Dissenters’ Rights Statute or the Per Share Merger Consideration, as the case may be, upon the surrender of such certificate in accordance with Section 3.2(b). The Company shall give prompt notice to Parent of any written demands and any other instruments served pursuant to the Dissenters’ Rights Statute received by the Company relating to rights of appraisal under the Dissenters’ Rights Statute, and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands. Except with the prior written consent of Parent, the Company shall not make any payment with respect to, or offer to settle or settle, any such demands or agree to do any of the foregoing. Each holder of Dissenting Shares who becomes entitled to payment for such shares pursuant to the Dissenters’ Rights Statute shall receive payment therefor from the Surviving Corporation in accordance with the Dissenters’ Rights Statute.

     (e) No fractional shares of Parent Common Stock shall be issued in the Merger, and fractional share interests of Parent Common Stock shall not entitle the owner thereof to vote or to any rights of a holder of Parent Common Stock. For purposes of this Section 3.1(e), the fractional shares of Parent Common Stock of a single record holder shall be determined after aggregating all certificates and shares of such holder and calculations shall be rounded to five decimal places. Each holder who would otherwise be entitled to receive fractional shares of Parent Common Stock but for this Section 3.1(e) shall be entitled to receive, in lieu thereof, an amount in cash equal to the product of (i) the number of such fractional shares of Parent Common Stock held by such holder and (ii) the closing price of Parent Common Stock on the NYSE on the trading day immediately prior to the Closing Date.

          SECTION 3.2 Payment to Company Stockholders .

     (a) The Company shall appoint Computershare Investor Services L.L.C. to be the Company’s exchange agent (the “ Exchange Agent ”) for the purpose of exchanging the Per Share Merger Consideration for certificates formerly representing Company Common Stock. Immediately prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Exchange Agent Parent Common Stock in an amount equal to the Aggregate Share Merger Consideration to be paid in respect of all shares of Company Common Stock outstanding immediately prior to the Merger and authorize the Exchange Agent to deliver shares of Parent Common Stock upon the exchange of certificates formerly representing Company Common Stock therefor. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of record of Company Common Stock immediately prior to the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be

effected, and risk of loss and title shall pass, only upon proper delivery of the certificates formerly representing Company Common Stock to the Exchange Agent) for use in such exchange.

     (b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a certificate formerly representing Company Common Stock, together with a properly completed letter of transmittal, the Per Share Merger Consideration without interest, payable for each share of Company Common Stock formerly represented by such certificate. Until so surrendered or transferred, as the case may be, each such certificate shall represent after the Effective Time for all purposes only the right to receive such Per Share Merger Consideration.

     (c) If any portion of the applicable Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered certificate formerly representing Company Common Stock is registered, it shall be a condition to such payment that (i) either such certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the Exchange Agent any Transfer Taxes or other Taxes required as a result of such payment to a Person other than the registered holder of such certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

     (d) After the Effective Time, there shall be no further registration of transfers of shares of Company Common Stock or of certificates formerly representing shares of Company Common Stock. Subject to the limitation set forth in Section 3.2(e), if, after the Effective Time, certificates formerly representing Company Common Stock are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.2.

     (e) Any portion of the Aggregate Share Merger Consideration deposited with the Exchange Agent pursuant to Section 3.2(a) that remains unclaimed by the holders of Company Common Stock on the first anniversary of the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged certificates formerly representing Company Common Stock for the Per Share Merger Consideration in accordance with this Section 3.2 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Per Share Merger Consideration in respect of such certificates formerly representing Company Common Stock. Notwithstanding the foregoing, Parent, the Surviving Corporation and the Exchange Agent shall not be liable to any holder of certificates formerly representing Company Common Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. If any certificates formerly representing Company Common Stock have not been surrendered prior to the date on which any Per Share Merger Consideration or any dividends or distributions with respect to Parent Common Stock as contemplated by Section 3.2(g) in respect of such certificate would otherwise escheat to or become the property of any Governmental Entity, any Per Share Merger Consideration, dividends or distributions in respect of such certificate shall, to the fullest extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interests of any Person previously entitled thereto.

     (f) Parent, the Surviving Corporation and/or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of shares of Company Common Stock pursuant to this Agreement such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “ Code ”), and the rules and regulations promulgated thereunder, or under any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Parent, Surviving Corporation and/or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Common Stock in respect of which such deduction and withholding were made.

     (g) No dividends or other distributions with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any certificate formerly representing Company Common Stock with respect to the shares of Parent Common Stock issuable upon surrender thereof until

the surrender of such certificate in accordance with this Article III. Subject to applicable Law, following surrender of any such certificate, there shall be paid to the holder of the certificate representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (i) at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common stock and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender, and a payment date subsequent to such surrender, payable with respect to such whole shares of Parent Common Stock.

          SECTION 3.3 Treatment of Options and Restricted Stock .

     (a) As of the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each option to purchase shares of Company Common Stock then outstanding under the Company Stock Plan, or any other stock option or compensation plan, arrangement or agreement of the Company (a “ Company Stock Option ”), whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time shall cease to represent a right to purchase shares of Company Common Stock and shall be converted into an option (an “ Adjusted Option ”) to purchase, on the same terms and conditions as applied to each such Company Stock Option immediately prior to the Effective Time (including, without limitation, the same vesting conditions), the number of whole shares of Parent Common Stock that is equal to the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by the Per Share Merger Consideration (rounded to the nearest whole share), at an exercise price per share of Parent Common Stock (rounded up to the nearest whole penny) equal to the exercise price for each such share of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time divided by the Per Share Merger Consideration; provided that in no event shall the number of shares of Parent Common Stock subject to such Adjusted Options exceed 717,024 (the “ Aggregate Adjusted Options ”), and, provided, further, that the exercise price and the number of shares of Parent Common Stock subject to such Adjusted Option shall be determined in a manner consistent with the requirements of Section 409A of the Code.

     (b) Prior to the Effective Time, Parent shall take all corporate action necessary to reserve for future issuance a sufficient additional number of shares of Parent Common Stock to provide for the satisfaction of its obligations, if any, with respect to the Adjusted Options. As soon as practicable following the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to the Adjusted Options and shall use its reasonable efforts to maintain the effectiveness of such registration statement (and to maintain the current status of the prospectus or prospectuses contained therein) for so long as such Adjusted Options remain outstanding.

     (c) At the Effective Time, any restrictions on transfer and/or forfeiture with respect to Company Common Stock issued and outstanding on the date immediately preceding the date hereof that is held by the individuals listed on Annex A hereto in such amounts set forth next to such person’s name and that is restricted under the Company Stock Plan or any other stock or compensation plan, agreement or arrangement of the Company shall, with no further action on the part of the Company or the holder thereof, terminate or lapse; and such shares of Company Common Stock thereon shall fully vest and be automatically converted into the right to receive the Per Share Merger Consideration on terms and conditions set forth in Section 3.2;

     (d) If any shares of Company Common Stock are issued on or after the date hereof, and such shares are outstanding immediately prior to the Effective Time and are unvested or are subject to a repurchase option, risk of forfeiture or other condition providing that such shares may be forfeited or repurchased upon any termination of the stockholders’ employment, directorship or other relationship with the Company (and/or any Subsidiary of the Company), under the terms of any agreement with the Company (and/or any Subsidiary of the Company ), that does not by its terms provide that such repurchase option, risk of forfeiture or other condition lapses upon consummation of the Merger, then with respect to such shares of Company Common Stock (“ Company Restricted Stock ”), the shares of Parent Common Stock issued upon the conversion of such shares in the Merger will continue to be unvested and subject to the same repurchase options, risks of forfeiture or other conditions following the Effective Time (“ Parent

Restricted Stock ”), and the certificates representing such shares of Parent Restricted Stock may accordingly be marked with appropriate legends noting such repurchase options, risks of forfeiture or other conditions.

     (e) If any shares of Parent Common Stock are outstanding immediately prior to the Effective Time and are unvested or are subject to a repurchase option, risk of forfeiture or other condition providing that such shares may be forfeited or repurchased upon any termination of the stockholders’ employment, directorship or other relationship with the Parent (and/or any Subsidiary of Parent), under the terms of any agreement with Parent (and/or any Subsidiary of Parent), that does not by its terms provide that such repurchase option, risk of forfeiture or other condition lapses upon consummation of the Merger, then with respect to such shares of Parent Common Stock, such shares will continue to be unvested and subject to the same repurchase options, risks of forfeiture or other conditions following the Effective Time.

     (f) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Company Stock Options immediately prior to the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the agreements formerly representing the right to purchase Company Common Stock pursuant to exercise of a Company Stock Option to the Exchange Agent) for use in such exchange for Adjusted Options.

     (g) As of the Effective Time, Parent shall assume the obligations and succeed to the rights of the Company under the Company Stock Plan with respect to the Adjusted Options and the Parent Restricted Stock. All contractual restrictions or limitations on transfer with respect to the Company Stock Options and the Company Restricted Stock, to the extent that such restrictions shall not have already lapsed (whether as a result of the Merger or otherwise), and except as otherwise expressly provided in the Company Stock Plan or contact or agreement with the Company, shall remain in full force and effect with respect to the Adjusted Options and the Parent Restricted Stock from and after the Merger.

     (h) Upon the lapsing of restrictions on shares of Parent Restricted Stock, Parent and/or the Exchange Agent shall be entitled to deduct and withhold such amounts as may be required to be deducted and withheld with respect to such payment under the Code and the rules and regulations promulgated thereunder, or under any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Parent and/or the Exchange Agent such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the party in respect of which such deduction and withholding was made.

     (i) The compensation committee of Parent shall adopt a resolution in advance of the Effective Time providing that the receipt by Company Insiders (as defined below) of Parent Common Stock or other equity securities of Parent pursuant to the Merger or other transactions contemplated by this Agreement is intended to be exempt from liability pursuant to Rule 16b-3 under the Exchange Act. For purposes of this Section 3.3(i), “ Company Insiders ” means those officers and directors of the Company who will become subject to the reporting requirements of Section 16(a) of the Exchange Act as insiders of Parent in conjunction with the Merger.

          SECTION 3.4 Lost Certificates . If any certificate formerly representing Company Common Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such certificate, the Exchange Agent shall pay, in exchange for such lost, stolen or destroyed certificate, the Per Share Merger Consideration to be paid in respect of Company Common Stock represented by such certificate, as contemplated by this Article III.

          SECTION 3.5 Adjustments .

     (a) If, during the period between the date of this Agreement and the Effective Time, any change in the outstanding Company Common Stock shall occur (other than pursuant to the exercise of

stock options or warrants or upon the vesting of restricted securities, in each case, that are outstanding on the date hereof and pursuant to their terms in existence on the date hereof) by reason of any reclassification, recapitalization, stock split or reverse stock split of Company Common Stock, or stock dividend thereon with a record date during such period, the Per Share Merger Consideration shall be appropriately adjusted.

     (b) If, during the period between the date of this Agreement and the Effective Time, any change in the outstanding Parent Common Stock shall occur (other than pursuant to the exercise of stock options or warrants or upon the vesting of restricted securities, in each case, that are outstanding on the date hereof and pursuant to their terms in existence on the date hereof) by reason of any reclassification, recapitalization, stock split or reverse stock split of Parent Common Stock, or stock dividend thereon with a record date during such period, the Per Share Merger Consideration shall be appropriately adjusted.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

          In connection with the execution and delivery of this Agreement, the Company has delivered to Parent and Merger Sub the Company Disclosure Letter, with numbering corresponding to the Sections or subsections of this Article IV (or other relevant Sections or subsections). Any exception, qualification or limitation described in any provision, section or subsection of the Company Disclosure Letter with respect to a particular representation or warranty in this Article IV shall be deemed to be an exception, qualification or limitation with respect to any other representation or warranty contained in this Article IV to the extent that its relationship thereto is reasonably apparent on its face. Except as set forth in the Company Disclosure Letter, the Company represents and warrants to Parent and Merger Sub as follows:

          SECTION 4.1 Corporate Status . Each of the Company and its Subsidiaries is duly incorporated or otherwise organized, validly existing and in good standing under the Laws of its governing jurisdiction and each has all requisite corporate or other power and authority to (a) carry on its business as it is now being conducted, (b) to own or use the properties and assets that it purports to own and use, (c) perform its obligations under all Company Contracts and is duly qualified to do business in each of the jurisdictions in which the ownership, operation or leasing of its assets or the conduct of its business requires it to be so qualified, except where the failure to be so qualified has not had and would not reasonably be expected to have a Company Material Adverse Effect. The copies of the Certificate of Incorporation of the Company and the By-Laws of the Company, which were previously furnished or made available to Parent, are true, complete and correct copies of such documents as in effect on the date of this Agreement. The Company has made available to Parent complete and correct copies of (i) the minutes of its most recent meeting of stockholders and (ii) the minutes of the meetings of the Board of Directors of the Company for the immediately preceding twelve (12) month period, other than those minutes relating to the transactions contemplated by this Agreement or any alternatives thereto considered by the Board of Directors of the Company or any matters subject to attorney-client privilege or the disclosure of which is limited by applicable Law. The Company is not in violation of its Certificate of Incorporation or By-Laws.

          SECTION 4.2 Authorization; Noncontravention .

          (a) Authorization .

     (i) The Company has all necessary power and authority to execute and deliver this Agreement and the Escrow Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby subject to the receipt of Company Stockholder Approval (as defined in Section 4.2(a)(ii)) and the filing and recordation of the appropriate documents with respect to the Merger in accordance with the DGCL. At a meeting duly called and held, the Board of Directors of the Company, has (A) adopted resolutions adopting and declaring advisable this Agreement and the Escrow Agreement and the Merger and the other transactions contemplated hereby and thereby on the terms and subject to the conditions set forth herein and therein; (B) determined that it is in the best interests of the stockholders of the

Company that the Company enter into this Agreement and the Escrow Agreement and consummate the Merger and the other transactions contemplated hereby and thereby on the terms and subject to the conditions set forth herein and therein; (C) directed that the adoption of this Agreement be submitted to a vote at a meeting of stockholders of the Company; (D) resolved, subject to Section 6.3 and their fiduciary duties, to recommend that the stockholders of the Company adopt this Agreement; and (E) approved the Parent’s entering into the Company Voting Agreements, including for purposes of Section 203 of the DGCL.

     (ii) The Company’s execution, delivery and performance of this Agreement and the Escrow Agreement and the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company or vote of holders of any class or series of capital stock of the Company is necessary to authorize this Agreement or the Escrow Agreement or to consummate the transactions contemplated hereby or thereby, other than the adoption of this Agreement by an affirmative vote of a majority of the outstanding shares of Company Common Stock entitled to vote thereon at the Company Stockholders Meeting or any adjournment or postponement thereof (“ Company Stockholder Approval ”). This Agreement and the Escrow Agreement have been duly executed and delivered by the Company and subject, solely with respect to the consummation of the Merger, to the receipt of the Company Stockholder Approval, and (assuming due authorization, execution and delivery by Parent and Merger Sub) constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

     (b) No Conflict . Except as set forth in Section 4.2(b) of the Company Disclosure Letter, the execution and delivery of this Agreement and the Escrow Agreement do not, and the consummation of the Merger and the other transactions contemplated hereby and thereby and compliance with the provisions of this Agreement and the Escrow Agreement will not, directly or indirectly, contravene, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation under any provision of (i) the Certificate of Incorporation of the Company, the By-Laws of the Company or the comparable organizational documents of any of its Subsidiaries, (ii) any resolutions adopted by the Board of Directors or the stockholders of the Company or any of its Subsidiaries, or (iii) subject to the filings and other matters referred to in the immediately following sentence, (A) any Contract to which the Company or any of its Subsidiaries is a party or by which any of its or their respective assets are bound or (B) any Law or Judgment, in each case applicable to the Company or any of its Subsidiaries or its or their respective assets, other than, in the case of this clause (iii), any such conflicts, violations, defaults, rights, losses, amendments that (x) have not had and would not reasonably be expected to have a Company Material Adverse Effect or (y) would not materially impair the Company’s ability to perform its obligations under this Agreement or the Escrow Agreement or consummate the transactions contemplated hereby or thereby. No Permit, order or authorization of, or registration, declaration or filing with, or notice to, any Governmental Entity is required to be obtained or made by or with respect to the Company or any of its Subsidiaries in connection with the execution, delivery and performance of this Agreement or the Escrow Agreement by the Company or the consummation by the Company of the Merger or the other transactions contemplated by this Agreement or the Escrow Agreement, except for (I) the filing of a premerger notification and report form by the Company and the termination or expiration of any waiting periods under the HSR Act, (II) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and of appropriate documents with the relevant authorities of other jurisdictions in which the Company or any of its Subsidiaries is qualified to do business, (III) such Permits, orders or authorizations of or registrations, declarations or filings with and notices the failure of which to be obtained or made (x) has not and would not reasonably be expected to have a Company Material Adverse Effect or (y) would not reasonably be expected to materially impair the Company’s ability to perform its obligations under this Agreement or the Escrow Agreement or consummate the transactions contemplated hereby or thereby.

          SECTION 4.3 Capital Structure .

     (a) The authorized capital stock of the Company consists of (i) 95,000,000 shares of Company Common Stock, of which 41,943,073 shares are issued and outstanding as of the date hereof and (ii) 5,000,000 shares of preferred stock, stated value $0.01 per share, of which none are issued and outstanding as of the date hereof. As of the date hereof, there are 814,800 shares of Company Common Stock subject to outstanding options to acquire shares of Company Common Stock pursuant to the Company Stock Plan and 326,668 shares of Company Common Stock subject to outstanding restricted stock awards under the Company Stock Plan. Each outstanding share of Company Common Stock is duly authorized, validly issued, fully paid and nonassessable. Except as set forth above or as expressly contemplated by this Agreement, as of the date hereof, there are no (i) outstanding obligations, options, warrants, convertible securities, exchangeable securities, securities or rights that are linked to the value of the Company Common Stock or other rights, agreements or commitments to which the Company is a party or issued by the Company relating to the capital stock of the Company or obligating the Company to issue or sell or otherwise transfer shares of capital stock of the Company or any securities convertible into or exchangeable for any shares of capital stock of the Company, or (ii) outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire shares of capital stock of the Company or (iii) voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of shares of capital stock of the company (but only to the Company’s knowledge with respect to any such agreements to which the Company is not a party).

     (b) Section 4.3(b) of the Company Disclosure Letter sets forth as of the date hereof a list of all Subsidiaries of the Company, including each such Subsidiary’s name, its jurisdiction of incorporation or organization, where it is qualified to do business as a foreign corporation or organization and the percentage of its outstanding capital stock or equity interests owned by the Company or a Subsidiary of the Company (as applicable). All of the shares of outstanding capital stock or equity interests of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and nonassessable, and are held of record and beneficially owned by the Company or a Subsidiary of the Company (as applicable), free and clear of any Encumbrances other than Permitted Encumbrances. There are no (i) outstanding obligations, options, warrants, convertible securities, exchangeable securities, or other rights, agreements or commitments, in each case, relating to the capital stock or equity interests of the Subsidiaries of the Company or obligating the Company or its Subsidiaries to issue or sell or otherwise transfer shares of the capital stock or equity interests of the Subsidiaries of the Company or any securities convertible into or exchangeable for any shares of capital stock or equity interests of the Subsidiaries of the Company, or (ii) outstanding obligations of the Subsidiaries of the Company or the Company to repurchase, redeem or otherwise acquire shares of their respective capital stock or (iii) voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of shares of capital stock of the Subsidiaries of the Company (but only to the Company’s knowledge with respect to any such agreements to which the Company is not a party).

     (c) Other than as set forth in Section 4.3(c) of the Company Disclosure Letter and other than the Subsidiaries of the Company, there are no Persons in which any of the Company or its Subsidiaries owns any equity, membership, partnership, joint venture or other similar interest.

     (d) The copies of the organizational and governing documents of each Subsidiary of the Company, all of which were previously furnished or made available to Parent, are true, complete and correct copies of such documents as in effect on the date of this Agreement. No Subsidiary of the Company is in violation of its organizational and governing documents.

          SECTION 4.4 Real Property .

     (a) Section 4.4(a) of the Company Disclosure Letter sets forth a list of all real property owned by the Company or any of its Subsidiaries as of the date hereof (collectively, the “ Company Owned Real Property ”). The Company or one of its Subsidiaries has good and marketable title in fee simple, free and clear of Encumbrances (except as set forth in Section 4.4(a) of the Company Disclosure Letter and other than Permitted Encumbrances), to the Company Owned Real Property. As of the date hereof, with

respect to each such parcel of Company Owned Real Property, except as set forth in Section 4.4(a) or 4.4(b) of the Company Disclosure Letter: (i) there are no leases, subleases, licenses, concessions or other agreements, written or oral, granting any Person the right of use or occupancy of, or the right to consent to the use or occupancy of, any portion of such parcel; (ii) there are no outstanding rights of first refusal, rights of first offer or options to purchase such parcel or any interest therein; and (iii) neither the Company nor any of its Subsidiaries has received written notice of any pending condemnation proceedings.

     (b) Section 4.4(b) of the Company Disclosure Letter sets forth a list as of the date hereof, of (x) all leases, subleases, licenses or other occupancy agreements (the “ Company Leases ”) pursuant to which the Company or any of its Subsidiaries holds a leasehold or subleasehold estate or other right to use or occupy any interest in real property and (y) existing leases, subleases, licenses or other occupancy agreements to which the Company or any of its Subsidiaries is a party as landlord or lessor thereunder or by which the Company or any of its Subsidiaries is bound as landlord or lessor thereunder (each, a “ Company Tenant Lease ”). The Company has provided copies of all Company Leases, all Company Tenant Leases and all modifications, supplements or amendments to the Company Leases and the Company Tenant Leases. Except as would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Lease and Company Tenant Lease (i) constitutes a valid and binding obligation of the Company or the Subsidiary of the Company party thereto; (ii) assuming such Company Lease is a legal, valid and binding obligation of, and enforceable against, the other parties thereto, is enforceable against the Company or the Subsidiary of the Company party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company or its Subsidiaries is in breach or default under any Company Lease and (ii) to the Company’s knowledge, none of the landlords or sublandlords under any Company Lease is in material breach or default of its obligations under such Company Lease. Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries enjoy peaceful and undisturbed possession under each Company Lease.

     (c) Except as would not reasonably be expected to have a Company Material Adverse Effect or otherwise set forth in Section 4.4(c) of the Company Disclosure Letter, (i) the present use of the Company Owned Real Property, the Company Leases and the Company Tenant Leases (collectively, the “ Company Real Property ”) does not violate any restrictive covenant, municipal by-law or other Law or agreement that in any way restricts, prevents or interferes in any material respect with the continued use of the Company Real Property for which it is used in the business of the Company and its Subsidiaries as of the date hereof (other than Permitted Encumbrances); and (ii) no condemnation, eminent domain or similar proceeding exists or is pending or, to the Company’s knowledge, threatened with respect to or that could affect any Company Real Property.

          SECTION 4.5 Intellectual Property .

     (a) The Company and its Subsidiaries own, or are validly licensed or otherwise have the right to use, all Intellectual Property listed on Section 4.5(a) of the Company Disclosure Letter and, other than as set forth on Section 4.5(a) of the Company Disclosure Schedule, all other Intellectual Property that is necessary for the conduct of the business of the Company and its Subsidiaries, as such business is conducted in the ordinary course of business consistent with past practices.

     (b) Other than as set forth on Section 4.5(b) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has received any written notice of infringement of, or challenge to, Intellectual Property owned by, licensed to, or sublicensed by the Company and its Subsidiaries, and to the Company’s knowledge, there are no claims pending with respect to the rights of others to the use of any material Intellectual Property owned by or sublicensed by the Company, including, but not limited to, the Intellectual Property listed on Section 4.5(a) of the Company Disclosure Letter.

     (c) Section 4.5(c) of the Company Disclosure Letter sets forth (i) a full and complete list of all Trademark applications and registrations (worldwide) owned by the Company or any of its Subsidiaries and (ii) the current owner(s) of such Trademark applications and registrations.

     (d) Section 4.5(d) of the Company Disclosure Letter contains a full and complete list of all agreements granting rights in and to Trademarks owned or sublicensable by Company or any of its Subsidiaries to a third party or any Affiliate. Copies of each such agreement granting rights in and to Trademarks have been provided to Parent.

          SECTION 4.6 Environmental Matters .

     (a) The Company and its Subsidiaries have obtained all material Permits that are required under any Environmental Law for the operation of the business of the Company and its Subsidiaries as currently being conducted and their current use and operation of the Company Real Property, and all such Permits are in full force and effect and the business of the Company and its Subsidiaries is being operated in compliance therewith.

     (b) Except as has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) there has been no Release of any Hazardous Materials by the Company or any of its Subsidiaries at, on, under or from the Company Real Property, and (ii) neither the Company nor any of its Subsidiaries has disposed of, arranged for treatment or disposal of, or arranged for the transportation for treatment or disposal of, any Hazardous Materials at any Third Party location. None of the Company or its subsidiaries has been notified that it is potentially liable or received any requests for information or other correspondence concerning any site or facility under CERCLA or any similar Environmental Law.

     (c) Except as set forth in Section 4.6(c) of the Company Disclosure Letter, to the Company’s knowledge, the Company and its Subsidiaries have operated and are operating the business of the Company and its Subsidiaries in compliance with Environmental Laws.

     (d)(i) None of the Company or its Subsidiaries has received any written notice, demand letter, claim or order nor is the Company or any of its Subsidiaries aware of any unasserted notice, demand letter, claim or order, the assertion of which is probable, alleging a violation of, or liability under, any Environmental Law and (ii) none of the Company or its Subsidiaries is party to any pending Action, decree or injunction alleging liability under or violation of any Environmental Law, except in each case that, if adversely determined against the Company, would not have or would not reasonably be expected to have a Company Material Adverse Effect.

     (e) Except as set forth in Section 4.6(e) of the Company Disclosure Letter, to the Company’s knowledge no building or other improvement located on the Company Real Property contains any asbestos or asbestos-containing materials.

     (f) Section 4.6 of the Company Disclosure Letter contains a true, complete and accurate listing of, and the Company has delivered, or caused to be delivered, to the Parent true and complete copies of, all environmental site assessments, test results, analytical data, boring logs, and other environmental reports and studies conducted by, at the expense of, or on behalf of the Company or that are otherwise in the Company’s possession with respect to the Company Real Property.

     (g) Except as would not reasonably be expected to have a Company Material Adverse Effect or set forth in Section 4.6 of the Company Disclosure Letter, the Company and its Subsidiaries have operated and are operating the business of the Company and its Subsidiaries in compliance with all applicable laws relating to employee health and safety; and the Company and its Subsidiaries have not received any notice that past or present conditions of the Company Real Property violate any applicable legal requirements or otherwise can be made the basis of any claim, citations, proceeding, or investigation, based on or related to violations of employee health and safety requirements.

          SECTION 4.7 Legal Proceedings . Except as set forth on Schedule 4.7 of the Company Disclosure Letter, there are no Actions pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries or any of their respective properties or any of their respective officers, employees or directors in their capacity as such, which if adversely determined, would have or would reasonably be expected to have a Company Material Adverse Effect. There are no Actions pending, or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries which (i) seek material injunctive relief or otherwise seek to enjoin the business or operations of the Company or any of its Subsidiaries, (ii) seek to impose any legal restraint on or prohibition against or limit the Surviving Corporation’s ability to operate the business of the Company and its Subsidiaries substantially as operated immediately prior to the date of this Agreement or (iii) would materially impair the Company’s ability to perform its obligations under this Agreement or challenge the validity or enforceability of this Agreement or seek to enjoin or prohibit consummation of the transactions contemplated hereby. None of the Company or any of its Subsidiaries is subject to any Judgment which has had or would reasonably be expected to have a Company Material Adverse Effect or would materially impair the Company’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby.

          SECTION 4.8 Taxes . Except for matters which would have not had or would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all Tax Returns required to be filed with any taxing authority by, or with respect to, the Company and its Subsidiaries have been filed in accordance with all applicable Laws; (ii) the Company and its Subsidiaries have paid all Taxes due and payable (other than Taxes which are being contested in good faith), and, as of the time of filing, the Company’s Tax Returns were true, correct and complete; (iii) the charges, accruals and reserves for Taxes with respect to the Company and each of its Subsidiaries as reflected on the Company’s audited consolidated balance sheet for the year ended December 31, 2006 included in the Company Financial Statements are adequate under GAAP to cover the liabilities for Taxes accrued through the date thereof; (iv) there is no action, suit, proceeding, audit or claim now proposed or pending against the Company or any of its Subsidiaries in respect of any Taxes; (v) neither the Company nor any of its Subsidiaries is party to, bound by or has any obligation under, any Tax sharing agreement or similar contract or arrangement or any agreement that obligates any of them to make any payment computed by reference to the Taxes, taxable income or taxable losses of any other Person; (vi) there are no Encumbrances (other than Permitted Encumbrances) with respect to Taxes on any of the assets or properties of the Company or any of its Subsidiaries; (vii) neither the Company nor any of its Subsidiaries (I) is, or has been, a member of an affiliated, consolidated, combined or unitary group, other than one of which the Company was the common parent and (II) has any liability for the Taxes of any Person (other than the Company and the Company Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), or as a transferee or successor, by contract or otherwise; (viii) no consent under Section 341(f) of the Code has been filed with respect to the Company or any of its Subsidiaries; (ix) all limited liability companies in which the Company holds an interest are either treated as not existing or are pass through entities for federal income tax purposes; and (x) during the five years prior to the date hereof, neither the Company nor any Subsidiary has been a party to a transaction described in Section 355 of the Code.

          SECTION 4.9 Labor . Since July 1, 2005 there has not been any work stoppage, slowdown, lockout, employee strike or, to the Company’s knowledge, since such date none of the foregoing has been threatened, by or between the Company or any of its Subsidiaries and their respective employees. Except as set forth in Section 4.9 of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries are a party to or bound by, any collective bargaining agreement or other labor related agreement with a labor union or labor organization. The Company and its Subsidiaries are operating the business of the Company and its Subsidiaries in compliance with all Labor Laws other than non-compliance which has not had and would not reasonably be expected to have a Company Material Adverse Effect.

          SECTION 4.10 Employee Benefit Plans .

     (a) (i) Section 4.10(a)(i) of the Company Disclosure Letter lists the Company Plans.

     (ii) Section 4.10(a)(ii) of the Company Disclosure Letter lists each “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) which is or has been contributed to by the Company or any of its ERISA Affiliates at any time during the six-year period ending on the

date of this Agreement or as to which the Company or any of its ERISA Affiliates has any direct or indirect liability (the “ Company Multiemployer Plans ”).

     (iii) The Company has made available to Parent true, correct and complete copies (or to the extent no such copy exists, an accurate description of the material features) of (A) such Company Plans and, to the extent in the Company’s possession, each Company Multiemployer Plan, and (B) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the “ IRS ”), if any, with respect to each Company Plan and, to the extent in the Company’s possession, each Company Multiemployer Plan.

     (b) Each Company Plan has been operated and administered in all material respects in accordance with the requirements of all applicable Laws, including ERISA and the Code. As of the date hereof, no Action is pending or, to the Company’s knowledge, threatened with respect to any Company Plan (other than claims for benefits in the ordinary course) and, to the Company’s knowledge, no fact or event exists that would give rise to any such Action.

     (c) Each Company Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and each trust established in connection with any Company Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and, to the Company’s knowledge, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Plan or the exempt status of any such trust.

     (d) None of the Company Plans are subject to Title IV of ERISA. Neither the Company nor any ERISA Affiliate has any liability under Title IV of ERISA.

     (e) Neither the Company nor any of its ERISA Affiliates, and to the Company’s knowledge no other Person, has engaged in any transaction or acted or failed to act in any manner that would subject the Company or any of its ERISA Affiliates to any liability for breach of fiduciary duty under ERISA.

     (f) None of the Company Plans provides retiree medical, health or life insurance or any other welfare-type benefits for current or future retired or terminated employees of the Company or its Subsidiaries or their spouses or dependents (other than in accordance with Part 6 of Title I of ERISA or Code Section 4980B).

     (g) Except as listed in Section 4.10(g) of the Company Disclosure Letter, the transactions contemplated hereby (either alone or in conjunction with any other event) (including a termination of employment on or following the Effective Time) will not entitle any current or former employee, officer or director of or individual providing consulting services to the Company or any of its Subsidiaries to any amount of compensation or benefits (whether in cash or property) or increase the amount thereof or trigger or accelerate the time of payment, vesting or funding thereof.

     (h) Except as listed in Section 4.10(h) of the Company Disclosure Letter, no amount, increase, trigger or acceleration referred to in Section 4.10(g) (whether or not disclosed in Section 4.10(g) of the Company Disclosure Letter) would (i) be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) or (ii) not be deductible under Section 162(a)(1) or 404 of the Code.

     (i) Section 4.10(i) of the Company Disclosure Letter sets forth each of the supplemental retirement, nonqualified deferred compensation and excess benefit plans and agreements (and all amendments thereto) to which the Company or any of its Subsidiaries is a party, listing all persons participating in each such plan or agreement and stating the benefits accrued under each such plan or agreement by each such person. The Company has provided to Parent a true, correct and complete copy of each such plan or agreement (and all amendments thereto). Such agreements and arrangements have been operated in accordance with a good faith interpretation of Code Section 409A.

          SECTION 4.11 Compliance with Laws . Each of the Company and its Subsidiaries is operating its business in compliance with all applicable Laws (including any zoning or building ordinance, code or approval) except to the extent any non-compliance with such Laws has not and would not reasonably be expected to have a Company Material Adverse Effect. All Permits required to conduct the business of the Company and its Subsidiaries as currently conducted have been obtained by one or more of the Company or its Subsidiaries and all such Permits are in full force and effect and the business of the Company and its Subsidiaries is being operated in compliance therewith except for such Permits the failure of which to possess or be in full force and effect or to be complied with has not had and would not reasonably be expected to have a Company Material Adverse Effect (except that this sentence shall not apply to any Permits which are covered by Section 4.6 or 4.9).

          SECTION 4.12 Company Contracts .

     (a) Section 4.12(a) of the Company Disclosure Letter identifies Contracts in effect as of the date of this Agreement to which any of the Company or its Subsidiaries is a party or by which any of them is otherwise expressly bound, in the categories listed below (collectively, the “ Company Contracts ”):

     (i) any partnership or joint venture Contract;

     (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its Subsidiaries of base annual fees or compensation in excess of $500,000 to any individual;

     (iii) any Contract containing a covenant not to compete or similar covenant that impairs in any material respect the ability of the Company or its Subsidiaries to freely conduct the business of the Company and its Subsidiaries in any geographic area or in any line of business which is not cancelable (without penalty or giving rise to any penalty or additional liability or cost) within 30 days;

     (iv) any Contract evidencing Indebtedness (other than Indebtedness incurred or obligations to pay rent or other amounts under any lease of real property or personal property which obligations are required to be classified as capital leases in accordance with GAAP);

     (v) any Contract providing for capital expenditures or the acquisition or construction of fixed assets which requires payments by any of the Company or its Subsidiaries in excess of $1,000,000 any year;

     (vi) any Contract for the sale or other transfer directly or indirectly of Company Owned Real Property or other material tangible assets having a fair market value in excess of $15,000,000 that has not yet been consummated;

     (vii) any distribution, supply, vendor, inventory purchase, sales agency or advertising Contract (other than purchase orders entered into in the ordinary course of business generally consistent with past practice) involving annual expenditures by any of the Company or its Subsidiaries in excess of $1,000,000 which is not cancelable (without giving rise to any penalty or additional liability or cost) within one year;

     (viii) any Contract with an Affiliate of the Company (other than Contracts described in clause (ii) above);

     (ix) any derivative and/or hedging Contract;

     (x) any Contract with any Governmental Entity having an aggregate value in excess of $1,000,000;

     (xi) any power of attorney or agency agreement pursuant to which a Person other than an authorized representative of the Company or a Subsidiary is granted the authority to act for or on behalf of the Company or such Subsidiary, or the Company or such Subsidiary is granted the authority to act on behalf of any Person;

     (xii) (A) any other Contract (excluding Company Leases), not otherwise covered by clauses (i) through (xi) of this Section 4.12(a), that requires payments by the Company or its Subsidiaries in excess of $1,000,000 during any one year and (B) is not cancelable on 90 days, or less notice; and

     (xiii) any written commitment (including any letter of intent or memorandum of understanding) to enter into any agreement of the type described in clauses (i) through (xii) of this Section 4.12(a).

     (b) Each Company Contract, assuming such Company Contract is a legal, valid and binding obligation of and enforceable against the other parties thereto in accordance with its terms, constitutes a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and is enforceable against the Company or such Subsidiary, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). None of the Company or its Subsidiaries and, to the Company’s knowledge, no other party to a Company Contract is in breach or default under (nor does there exist any condition which upon the passage of time or the giving of notice would cause such a breach or default under) any Company Contract.

          SECTION 4.13 Company Financial Statements .

     (a) The Company has delivered to Parent copies of the following financial statements (collectively, the “ Company Financial Statements ”), copies of which are annexed hereto as Schedule 4.13 , all of which are true, accurate and correct and have been prepared in good faith from the books and records of the Company in conformity with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position, results of operations and cash flows of the Company and its consolidated Subsidiaries as at the dates thereof and for the periods indicated therein, except as otherwise noted therein (subject, in the case of unaudited statements, to immaterial normal year-end adjustments):

     (i) Audited consolidated balance sheets, and related consolidated statements of operations, stockholders’ equity and cash flows (including the notes thereto) of the Company and its Subsidiaries as at December 31, 2006, December 31, 2005 and December 31, 2004 and for the periods then ended; and

     (ii) Unaudited consolidated balance sheet and related statements of operation of the Company and its Subsidiaries as of March 31, 2007 and for the three month period then ended.

     (b) The Company has designed and maintained a system of “internal controls over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting. The Company has disclosed to Company’s auditors and the audit committee of Company’s Board of Directors (and made summaries of such disclosures available to Parent) (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Company’s internal controls over financial reporting.

     (c) Except as set forth on or reserved against in the consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2006 included the Company Financial Statements for the year ended December 31, 2006, including the notes thereto, none of the Company or any of its consolidated Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise or in excess of amounts specifically reserved against in such consolidated balance sheet), except for liabilities or obligations (i) incurred since December 31, 2006 in the ordinary course of business generally consistent with past practice; (ii) that have not had and would not reasonably be expected to have a Company Material Adverse Effect; (iii) to be incurred in connection with the transactions contemplated hereby; or (iv) incurred to the extent permitted pursuant to Section 6.1(d).

          SECTION 4.14 Absence of Certain Changes . Since December 31, 2006 until the date hereof, there has not occurred any change, event or circumstance that has had or would be reasonably expected to have a Company Material Adverse Effect. Except as expressly contemplated by this Agreement or set forth in Section 4.14 of the Company Disclosure Letter, since December 31, 2006 until the date hereof, the Company and its Subsidiaries have conducted their business in the ordinary course generally consistent with past practices in all material respects and none of the Company or its Subsidiaries has:

     (a) amended its Certificate of Incorporation, By-Laws or other organizational documents;

     (b) adopted a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization;

     (c) (i) issued, sold, transferred, or otherwise disposed of any shares of its capital stock, or other voting securities or any securities convertible into or exchangeable for any of the foregoing, (ii) granted or issued any options, warrants, securities or rights that are linked to the value of the Company Common Stock, or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, (iii) declared, set aside or paid any dividend or other distribution with respect to any shares of its capital stock, or (iv) redeemed, purchased or otherwise acquired any shares of its capital stock or any rights, warrants or options to acquire any such shares or effected any reduction in capital, except (with respect to clauses (i) through (iv) above) for: (A) issuances of capital stock of the Company’s Subsidiaries to the Company or a wholly owned Subsidiary of the Company, (B) issuances of shares of Company Common Stock upon exercise of employee stock options, upon vesting of restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing, (C) grants made pursuant to Company Plans or the Company Stock Plan and (D) dividends or distributions by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company;

     (d) entered into or consummated any transaction involving the acquisition (including, without limitation, by merger, consolidation or acquisition of the business, stock or all or substantially all of the assets or other business combination) of any other Person for consideration to such Person in excess of $500,000 (other than purchases of inventory or acquisitions of real property, fixtures and equipment in the ordinary course of business generally consistent with past practice);

     (e) sold, leased, licensed or otherwise disposed of any fixed assets or personal property for consideration in excess of $500,000, (i) except pursuant to existing Contracts, (ii) for sales of inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice, or (iii) pursuant to any Company Tenant Leases; or

     (f) changed any of its material accounting policies or practices, except as required as a result of a change in GAAP or the rules and regulations of the SEC.

          SECTION 4.15 Insurance . Section 4.15 of the Company Disclosure Letter sets forth each insurance policy (specifying the insurer, the type of insurance and the policy number) maintained by the Company and its Subsidiaries on their respective properties, assets, products, business, or personnel. The Company maintains,

with reputable insurers or through self-insurance, insurance in such amounts, including deductible arrangements, and covering such risks as is customary for companies engaged in the same or similar business. All premiums payable under such insurance policies have been paid in a timely manner and the Company and its Subsidiaries have complied in all material respects with the terms and provisions of such insurance policies. All Company insurance policies are in full force and effect. Neither the Company nor any of its Subsidiaries is in default under any provisions of any such policy of insurance and neither the Company nor any of its Subsidiaries has received notice of cancellation of any such insurance. To the Company’s knowledge (i) there is no material claim pending under any Company insurance policy as to which coverage has been questioned, denied or disputed by the underwriters of any such insurance policy or (ii) there has been no threatened termination of, or material premium increase with respect to, any such insurance policy.

          SECTION 4.16 Brokers’ Fees . Section 4.16 of the Company Disclosure Letter sets forth a list of all agreements with any broker, investment banker, financial advisor or other Person entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by or on behalf of the Company or any of its Affiliates. The Company has made available to Parent true and complete copies of all such agreements.

          SECTION 4.17 Opinion of Financial Advisor . Prior to the date hereof, the Board of Directors of the Company has received the written opinion of Lehman Brothers, financial advisor to the Board of Directors of the Company, to the effect that, as of the date of such opinion and subject to the qualifications stated therein, the Per Share Merger Consideration is fair, from a financial point of view, to the holders of the Company Common Stock. The Company has made available to Parent a true and complete copy of such written opinion of Lehman Brothers.

          SECTION 4.18 Title to Assets . The Company and each Subsidiary has good title to, valid leasehold interests in or a valid right to use, all of their respective material assets except for (i) such assets that have been sold or otherwise disposed of in the ordinary course of business consistent with past practice. Other than as set forth in Section 4.18 of the Company Disclosure Letter, and other than assets subject to Sections 4.4 or 4.5 or assets in which the Company or any of its Subsidiaries has leasehold interest or a valid right to use, all of the material assets of the Company and its Subsidiaries are held free and clear of any Encumbrance other than Permitted Encumbrances except for Encumbrances that would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect.

          SECTION 4.19 Company Accounting Practices