AGREEMENT AND PLAN OF MERGER Among

Agreement and Plan of Merger

You are currently viewing:

This Agreement and Plan of Merger involves

DownREIT Partnership | Excel Realty Partners, LP | Maryland General Corporation | New Plan Excel Realty Trust, Inc | Super DownREIT MergerSub LLC | SUPER INTERMEDIATECO LLC | Super MergerSub Inc

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: AGREEMENT AND PLAN OF MERGER Among
Governing Law: Maryland Date: 3/2/2007
Industry: Real Estate Operations Law Firm: Skadden Arps;Hogan Hartson;Latham Watkins Sector: Services

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

Among

NEW PLAN EXCEL REALTY TRUST, INC.,

EXCEL REALTY PARTNERS, L.P.

SUPER INTERMEDIATECO LLC,

SUPER MERGERSUB INC., AND

SUPER DOWNREIT MERGERSUB LLC

Dated as of February 27, 2007

TABLE OF CONTENTS

		Page
ARTICLE I

DEFINITIONS

Section 1.01	Definitions	2
Section 1.02	Interpretation and Rules of Construction	11

ARTICLE II

THE OFFER AND THE MERGERS

Section 2.01	The Offer	12
Section 2.02	Company Actions	14
Section 2.03	Directors	16
Section 2.04	Top-Up Option	17
Section 2.05	Mergers	19
Section 2.06	Tax Characterization	19
Section 2.07	Organizational Documents	19
Section 2.08	Effective Times	20
Section 2.09	Closings	20
Section 2.10	Directors and Officers of Surviving Corporation	21
Section 2.11	Further Assurances	21
Section 2.12	Dissolution and Liquidation of the Surviving Corporation	22
Section 2.13	Termination of DRIP	22

ARTICLE III

EFFECTS OF THE MERGERS

Section 3.01	Effects on Shares	22
Section 3.02	Effect on Units of Partnership Interest	24
Section 3.03	Exchange of Certificates and Uncertificated Units; Paying Agent	26
Section 3.04	Effect on Out-Performance Plan	29
Section 3.05	Withholding Rights	29
Section 3.06	Dissenters’ Rights	30

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES

Section 4.01	Organization and Qualification; Subsidiaries; Authority	30
Section 4.02	Organizational Documents	31
Section 4.03	Capitalization	32
Section 4.04	Authority; Validity and Effect of Agreements	34
Section 4.05	No Conflict; Required Filings and Consents	35
Section 4.06	Permits; Compliance with Laws	37
Section 4.07	SEC Filings; Financial Statements; No Unknown Liabilities	37
Section 4.08	Absence of Certain Changes or Events	38
Section 4.09	Absence of Litigation	39
Section 4.10	Employee Benefit Plans	39
Section 4.11	Labor Matters	41
Section 4.12	Offer Documents; Proxy Statement; Schedule 14D-9	42
Section 4.13	Property and Leases	42
Section 4.14	Intellectual Property	47
Section 4.15	Taxes	47
Section 4.16	Environmental Matters	51
Section 4.17	Material Contracts	51
Section 4.18	Brokers	53
Section 4.19	Opinion of Financial Advisors	53
Section 4.20	Insurance	53
Section 4.21	Interested Party Transactions	54
Section 4.22	Investment Company Act of 1940	54
Section 4.23	Accounting Controls	54
Section 4.24	Inapplicability of Takeover Statutes and Certain Charter and Bylaw Provisions	54

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES

Section 5.01	Organization	55
Section 5.02	Ownership; No Prior Activities	56
Section 5.03	Power and Authority; Validity and Effect of Agreements	56
Section 5.04	No Conflict; Required Filings and Consents	56
Section 5.05	Preparation of Offer Documents; Proxy Statement; Schedule 14D-9	57
Section 5.06	Absence of Litigation	58
Section 5.07	Available Funds; Performance	58
Section 5.08	No Ownership of Company Capital Stock	59
Section 5.09	Brokers	59
Section 5.10	Other Agreements or Understandings	60

ARTICLE VI

CONDUCT OF BUSINESS PENDING THE MERGERS

Section 6.01	Conduct of Business by Company Pending the Mergers	60
Section 6.02	Conduct of Business by Parent Pending the Merger	65

ARTICLE VII

ADDITIONAL AGREEMENTS

Section 7.01	Preparation of Proxy Statement; Other Filings; Stockholders’ Meeting	65
Section 7.02	Merger Without Meeting of Stockholders	67
Section 7.03	Access to Information; Confidentiality	67
Section 7.04	No Solicitation of Transactions	68
Section 7.05	Employee Benefits Matters	70
Section 7.06	Directors’ and Officers’ Indemnification and Insurance	72
Section 7.07	Further Action; Reasonable Efforts	75
Section 7.08	Transfer Taxes	77
Section 7.09	Public Announcements	77
Section 7.10	Certain Tax Matters	77
Section 7.11	Financing; Cooperation with Financing	78
Section 7.12	NYSE Delisting; Exchange Act Deregistration	79
Section 7.13	Approval of Compensation Actions	79

ARTICLE VIII

CONDITIONS TO THE MERGERS

Section 8.01	Conditions to the Obligations of Each Party	79

ARTICLE IX

TERMINATION, AMENDMENT AND WAIVER

Section 9.01	Termination	80
Section 9.02	Effect of Termination	82
Section 9.03	Notice of Termination	82
Section 9.04	Fees and Expenses	82
Section 9.05	Waiver	84

ARTICLE X

GENERAL PROVISIONS

Section 10.01	Non-Survival of Representations and Warranties	84

iii

Section 10.02	Notices	84
Section 10.03	Severability	85
Section 10.04	Amendment	85
Section 10.05	Entire Agreement; Assignment	86
Section 10.06	Specific Performance	86
Section 10.07	Parties in Interest	86
Section 10.08	Governing Law; Enforcement and Forum	86
Section 10.09	Headings	87
Section 10.10	Counterparts	87
Section 10.11	Waiver	87
Section 10.12	Mutual Drafting	87
Section 10.13	Waiver of Jury Trial	87
Section 10.14	Remedies Cumulative	87

EXHIBITS

Exhibit A Knowledge of the Company

Exhibit B Form of Hogan & Hartson L.L.P. Tax Opinion

Exhibit C Additional Notice Information

Exhibit D Terms of Class A Preferred Units

Exhibit E Co-Obligor Agreement

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER, dated as of February 27, 2007 (this “ Agreement ”), is made and entered into by and among New Plan Excel Realty Trust, Inc., a Maryland corporation (the “ Company ”), Excel Realty Partners, L.P., a Delaware limited partnership (the “ DownREIT Partnership ” and together with the Company, the “ Company Parties ”), Super IntermediateCo LLC, a Maryland limited liability company (“ Parent ”), Super MergerSub Inc., a Maryland corporation and a wholly owned subsidiary of Parent (“ MergerSub ”), and Super DownREIT MergerSub LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (the “ Super REIT MergerSub ” and together with MergerSub and Parent, the “ Buyer Parties ”).

WHEREAS, pursuant to this Agreement and subject to the terms and conditions set forth herein, MergerSub shall commence a cash tender offer (such tender offer, as it may be amended and supplemented from time to time as permitted by this Agreement, the “ Offer ”) to purchase all of the issued and outstanding shares of common stock, par value $.01 per share, of the Company (the “ Company Common Shares ”) at a price per share of $33.15 net to the seller in cash without interest (such price, or any higher price per share as may be paid pursuant to the Offer being hereafter referred to as the “ Offer Price ”);

WHEREAS, following the consummation of the Offer, MergerSub will merge (the “ Merger ”) with and into the Company in accordance with the Maryland General Corporation Law (the “ MGCL ”), with the Company surviving the Merger as a wholly owned subsidiary of Parent, and each Company Common Share outstanding immediately prior to the Effective Time (other than Company Common Shares owned by Parent or MergerSub or any direct or indirect wholly owned Subsidiary of Parent or the Company immediately prior to the Effective Time, which will be cancelled with no consideration issued in exchange therefor) will thereupon be cancelled and converted into the right to receive cash in an amount equal to the Offer Price, on the terms and subject to the conditions set forth herein;

WHEREAS, in connection with the Offer and the Merger, Super REIT MergerSub will merge (the “ DownREIT Merger ”, and together with the Merger, the “ Mergers ”) with and into the DownREIT Partnership in accordance with the Delaware Revised Uniform Limited Partnership Act, as amended (“ DRULPA ”), and the Delaware Limited Liability Company Act, as amended (“ DLLCA ”), with the DownREIT Partnership surviving the DownREIT Merger, on the terms and subject to the conditions set forth herein;

WHEREAS, the Board of Directors of the Company (the “ Company Board ”) has (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable and in the best interest of the Company and its stockholders,

(ii) adopted and approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, in accordance the requirements of the MGCL, and (iii) subject to the terms and conditions set forth herein, resolved to recommend acceptance of the Offer and approval of the Merger by its stockholders;

WHEREAS, New Plan DRP Trust, a Maryland limited liability company and a wholly-owned subsidiary of the Company (the “ DRP Trust ”), as the sole general partner of the DownREIT Partnership, has approved this Agreement and the DownREIT Merger and deemed it advisable and in the best interests of the DownREIT Partnership and its limited partners to enter into this Agreement and to consummate the DownREIT Merger, on the terms and subject to the conditions set forth herein;

WHEREAS, the parties hereto desire to make certain representations, warranties, covenants and agreements in connection with the Mergers, and also to prescribe various conditions to such transactions.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 Definitions . For purposes of this Agreement:

“ Acquisition Proposal ” means any proposal or offer from any Person or group for, whether in one transaction or a series of related transactions, any (a) merger, consolidation or similar transaction involving the Company or any Subsidiary that would constitute a “significant subsidiary” (as defined in Rule 1-02 of Regulation S-X, but substituting 20% for references to 10% therein), (b) sale or other disposition, directly or indirectly, by merger, consolidation, combination, reorganization, share exchange or any similar transaction, of any assets of the Company or the Subsidiaries representing 20% or more of the consolidated assets of the Company and the Subsidiaries, (c) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 20% or more of the votes associated with the outstanding voting equity securities of the Company, (d) tender offer or exchange offer in which any Person or “group” (as such term is defined under the Exchange Act) shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, of 20% or more of the outstanding Company Common Shares, or (e) recapitalization, liquidation,

dissolution or other similar type of transaction with respect to the Company which would result in any Person or group acquiring 20% or more of the fair market value of the assets (including capital stock of the subsidiaries) of the Company and Subsidiaries taken as a whole; provided , however , that the term “Acquisition Proposal” shall not include (i) the Offer, the Merger, the issuance of the Top-Up Shares or any of the other transactions contemplated by this Agreement, (ii) the issuance of Company Common Shares upon redemption of Existing Units, or (iii) any merger, consolidation, business combination, recapitalization or similar transaction solely among the Company and one or more Subsidiaries or among Subsidiaries.

“ Action ” means any claim, action, suit, proceeding, arbitration, mediation or other investigation.

“ Affiliate ” or “ affiliate ” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person.

“ beneficial owner ”, with respect to any Company Common Shares, has the meaning ascribed to such term under Rule 13d-3(a) of the Exchange Act.

“ Business Day ” or “ business day ” means any day other than a Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or Melbourne, Australia or is a day on which banking institutions in New York, New York or Melbourne, Australia are authorized or obligated by Law or other governmental action to close.

“ Certificate ” or “ Certificates ” means any certificate representing Company Common Shares.

“ Class A Preferred Units ” means the Class A Preferred Units of limited partner interest of the Surviving Partnership, the rights and terms of which are generally described in Exhibit D attached hereto.

“ Company Bylaws ” means the Restated Bylaws of New Plan Excel Realty Trust, Inc. adopted on February 23, 2004, as amended.

“ Company Charter ” means the Articles of Amendment and Restatement of New Plan Excel Realty Trust, Inc., as accepted for record by SDAT on May 23, 1995, as amended and supplemented.

“ Company Insurance Policy ” means any insurance policy, other than a Company Title Insurance Policy, which is owned by the Company and/or a Subsidiary, including any which pertains to the Company’s or its Subsidiaries’ assets, employees or operations.

“ Company Material Adverse Effect ” means, with respect to the Company, an effect, event, development or change that has a materially adverse effect on the assets, business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole, other than any effect, event, development or change arising out of or resulting from (a) decrease in the market price of the Company Common Shares (but not any effect, event, development or change underlying such decrease to the extent that such effect, event, development or change would otherwise constitute a Company Material Adverse Effect), (b) changes in conditions in the U.S. or global economy or capital or financial markets generally, including changes in interest rates or exchange rates, (c) changes in general legal, tax, regulatory, political or business conditions that, in each case, generally affect a geographic region or industry in which the Company or its Subsidiaries conduct their business (unless, and only to the extent, such effect, event, development or change affects the Company and its Subsidiaries in a materially disproportionate manner as compared to other persons or participants in the industries in which the Company and its Subsidiaries conduct their business and that operate in the geographic regions affected by such effect, event, development or change), (d) changes in GAAP, (e) the negotiation, execution, announcement or performance of this Agreement or the transactions contemplated hereby or the consummation of the transactions contemplated by this Agreement, including any litigation resulting therefrom and the impact thereof on relationships, contractual or otherwise, with tenants, suppliers, lenders, investors, venture partners or employees, (f) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement (unless, and only to the extent, such effect, event, development or change affects the Company and its Subsidiaries in a materially disproportionate manner as compared to other persons or participants in the industries in which the Company and its Subsidiaries conduct their business and that operate in the geographic regions affected by such effect, event, development or change), (g) earthquakes, hurricanes, floods, or other natural disasters (unless, and only to the extent, such effect, event, development or change affects the Company and its Subsidiaries in a materially disproportionate manner as compared to other persons or participants in the industries in which the Company and its Subsidiaries conduct their business and that operate in the geographic regions affected by such effect, event, development or change), or (h) any action taken by the Company or its Subsidiaries at the written request or with the written consent of any of the Buyer Parties.

“ control ” (including the terms “ controlled by ” and “ under common control with ”) means the possession, directly or indirectly of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, as trustee or executor, by contract or credit arrangement or otherwise;

“ Disclosure Schedule ” means the disclosure schedule delivered by the Company to Parent concurrently with the execution of this Agreement, which disclosure schedule is arranged in paragraphs corresponding to the numbered and lettered sections contained in Article IV of this Agreement, provided , however , that the disclosure of any fact or item in any section of such disclosure schedule shall, should the existence of such fact or item be relevant to any other section, be deemed to be disclosed with respect to that other section so long as the relevance of such disclosure to such other section is reasonably apparent from the nature of such disclosure. Nothing in the Disclosure Schedule is intended to broaden the scope of any representation or warranty of the Company made herein.

“ DownREIT Partnership Agreement ” means that certain Second Amended and Restated Agreement of Limited Partnership of the DownREIT Partnership, dated as of May 19, 2003, as amended by that certain First Amendment to Second Amended and Restated Agreement of Limited Partnership of the DownREIT Partnership, dated as of December 7, 2004 (as amended from time to time and including any applicable partner schedules for the Existing Unit Holders).

“ Environmental Laws ” means any applicable United States federal, state, local law in existence on or before the date hereof relating to (i) releases or threatened releases of Hazardous Substances; (ii) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances; or (iii) pollution or protection of the environment, health, safety or natural resources.

“ GAAP ” means generally accepted accounting principles as applied in the United States.

“ Governmental Authority ” means any United States federal, state, municipal or local government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any United States court, tribunal, or judicial or arbitral body of any nature; or any United States body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.

“ Hazardous Substances ” means (i) those substances defined in or regulated under the following United States federal statutes and their state counterparts, as each has been amended from time to time, and all regulations thereunder in effect prior to the date hereof, including the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act, and the Clean Air Act; (ii) petroleum and petroleum products, including crude oil and any fractions thereof; (iii) polychlorinated biphenyls, asbestos and radon; and (iv) any other contaminant, substance, material or waste regulated by any Governmental Authority pursuant to any Environmental Law.

“ Intellectual Property ” means (i) United States and international patents, patent applications and invention registrations of any type, (ii) trademarks, service marks, trade dress, logos, trade names, domain names, corporate names and other source identifiers, and registrations and applications for registration thereof, (iii) copyrightable works, copyrights, and registrations and applications for registration thereof, and (iv) confidential and proprietary information, including trade secrets and know-how.

“ knowledge of the Company ” means the actual knowledge of those individuals listed on Exhibit A .

“ Law ” means any United States federal, state, municipal or local statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order of any Governmental Authority.

“ Liens ” means with respect to any asset (including any security), any mortgage, claim, lien, pledge, charge, title defect, security interest or encumbrance of any kind in respect to such asset.

“ Ownership Limit ” shall have the meaning set forth in the Company Charter.

“ Parent Material Adverse Effect ” means any event, circumstance, change or effect that would reasonably be expected to prevent, or materially hinder Parent, MergerSub or Super REIT MergerSub from consummating the Offer, the Merger or any of the other transactions contemplated by this Agreement.

“ Permitted Liens ” means (i) the outstanding mortgage indebtedness and other matters identified on Section 4.13(a) of the Disclosure Schedule; (ii) Liens for Taxes not yet delinquent and Liens for Taxes being contested in good faith and for which there are adequate reserves on the financial statements of the Company (if such reserves are required pursuant to GAAP); (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress; (iv) inchoate workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any Subsidiary; (v) zoning restrictions; (vi) any matter disclosed in a title exception set forth in any Company Title Insurance Policy provided or made available to Parent for wholly-owned Company Properties (whether material or immaterial); (vii) Liens arising under the leases in which the Company or any Subsidiary is tenant for amounts due to the landlords thereunder, which amounts are not yet due and payable; (viii) the Company Leases; (ix) matters that would be disclosed on current title reports or surveys that arise or have arisen in the ordinary course of business (excluding the Liens of mortgages or deeds of trust which do not secure indebtedness described on Section 4.13(a) of the Disclosure Schedule) and (x) any other Lien that does not interfere materially with the current use of such property (assuming its continued use in the manner in which it is currently used) or materially adversely affect the value or marketability of such property.

“ person ” or “ Person ” means an individual, corporation, partnership, limited partnership, limited liability company, joint venture syndicate, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government, including Governmental Authorities.

“ Subsidiary ” or “ Subsidiaries ” of the Company, Parent or any other person means a corporation, limited liability company, partnership, joint venture, trust or other entity or organization of which: (a) such party or any other subsidiary of such party is a general partner; (b) voting power to elect a majority of the board of directors or others performing similar functions with respect to such organization is held by such party or by any one or more of such party’s subsidiaries; or (c) at least 50% of the equity interests is controlled by such party; and with respect to the Company shall include the DownREIT Partnership but exclude Galileo America LLC and all subsidiaries of Galileo America LLC (collectively, “ Galileo America ”).

“ Substantial Detriment ” means a material adverse effect on the business, assets, results of operations or financial condition of the Company and the Company’s Subsidiaries, taken as a whole.

“ Superior Proposal ” shall mean a written Acquisition Proposal made by a third party (a) on terms which the Company Board determines in good faith (after consultation with its financial advisors) to be more favorable to the stockholders of the Company (in their capacity as stockholders) from a financial point of view as compared to the Offer Price (after giving effect to any alternative proposed by Parent in accordance with Section 1.01(d)), (b) the material conditions to the consummation of which are reasonably capable of being satisfied in the judgment of the Company Board (taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal, including any conditions, and the identity of the offeror) and (c) in respect of which any required financing is then committed or has been determined in good faith by the Company Board to be available or reasonably likely to be obtained, provided , however , that any such Acquisition Proposal that is contingent upon such third party obtaining financing shall be deemed not to be a Superior Proposal. For the purposes of this definition, the term “ Acquisition Proposal ” shall have the meaning set forth in the above definition of Acquisition Proposal, except that all references to “20%” shall be deemed references to “more than 50%”.

“ Taxes ” means any and all taxes, charges, fees, levies and other assessments, including income, gross receipts, excise, property, sales, social security, occupation, use, service, license, payroll, franchise, transfer and recording taxes, fees and charges, including estimated

taxes, imposed by the United States or any taxing authority (domestic or foreign), whether computed on a separate, consolidated, unitary, combined or any other basis, and similar charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any government or taxing authority.

“ U.S. Dollars ” and the sign “ $ ” shall each mean the lawful currency of the United States of America.

(a) the following terms have the meaning set forth in the Sections set forth below:

Defined Term	Location of Definition

1999 Indenture		§ 4.03(a)
2003 Convertible Notes		§ 4.03(a)
2006 Convertible Notes		§ 4.03(a)
2007 Budget		§ 4.13(m)
Acceptance Date		§ 2.01(a)
Agreement		Preamble
Amended DownREIT Partnership Agreement		§ 2.07(a)
Articles of Merger		§ 2.08(a)
Blue Sky Laws		§ 4.05(b)
Buyer Parties		Preamble
Capital Expenditures		§ 6.01(j)
CERCLA		§ 4.16(c)
Company Adverse Recommendation Change		§ 7.04(a)
Claim		§ 7.06(a)
Closing		§ 2.09(a)
Closing Date		§ 2.09(a)
Code		§ 4.10(b)
Company		Preamble
Company Board		Recitals
Company Common Shares		Recitals
Company Common Share Cash Merger Consideration		§ 3.01(b)
Company Disclosure Documents		§ 5.05(b)
Company Employees		§ 7.05(c)
Company Financial Advisor		§ 4.18
Company Intellectual Property		§ 4.14
Company Leases		§ 4.13(g)
Company Option Plans		§ 3.01(d)
Company Properties		§ 4.13(a)
Company Property		§ 4.13(a)
Company Property Restrictions		§ 4.13(b)

Defined Term	Location of Definition
Company Restricted Shares		§ 3.01(d)
Company SEC Reports		§ 4.07(a)
Company Series D Preferred Shares		§ 4.03(a)
Company Series E Preferred Shares		§ 4.03(a)
Company Share Options		§ 3.01(d)
Company Share Rights		§ 3.01(f)
Company Stockholder Approval		§ 4.04(a)(i)
Company Stockholders’ Meeting		§ 7.01(a)
Company Termination Fee		§ 9.04(d)
Company Title Insurance Policy		§ 4.13(e)
Compensation Actions		§ 4.08(b)
Confidentiality Agreement		§ 7.03(b)
Continuing Employees		§ 7.05(c)
Conversion		§ 7.10
Convertible Notes		§ 4.03(a)
Debt Commitment Letter		§ 5.07(b)
Debt Financing		§ 7.11(a)
DLLCA		Recitals
DownREIT Merger		Preamble
DownREIT Merger Certificate		§ 2.08(b)
DownREIT Merger Closing		§ 2.09(b)
DownREIT Merger Closing Date		§ 2.09(b)
DownREIT Merger Effective Time		§ 2.08(b)
DownREIT Partnership		Preamble
DownREIT Partnership Offer		§ 3.02
DRIP		§ 2.13
DRP Trust		Recitals
DRULPA		Recitals
DSOS		§ 2.08(b)
Effective Time		§ 2.08(a)
Election		§ 3.02(c)
Election Form		§ 3.02(c)
Environmental Permits		§ 4.16(a)
ERISA		§ 4.10(a)
ERISA Affiliate		§ 4.10(i)
Exchange Act		§ 4.05(b)
Exchange Fund		§ 3.03(a)
Existing Unit Cash Consideration		§ 3.02(a)
Existing Unit Consideration		§ 3.02(a)
Existing Unit Preferred Consideration		§ 3.02(a)
Existing Unit Holders		§ 4.03(a)
Existing Units		§ 4.03(a)

Defined Term	Location of Definition
Expenses		§ 7.06(a)
Expiration Date		Annex I
Governmental Order		§ 9.01(c)
Ground Lease		§ 4.13(i)
Incentive Plan		§ 3.01(d)
Indemnified Parties		§ 7.06(a)
Indenture		§ 4.03(a)
Interested Persons		§ 2.03(a)
IRS		§ 4.10(a)
JV Entities		§ 4.01(c)
Liquidation		§ 2.12
Liquidation Payment Date		§ 2.12
Major Title Defect		§ 7.07(h)
Maryland Courts		§ 10.08
Material Company Leases		§ 4.13(g)
Material Contract		§ 4.17
Merger		Recitals
Merger Recommendation		§ 2.02(a)
Mergers		Recitals
MergerSub		Preamble
MGCL		Recitals
Minimum Tender Condition		Annex I
Non-Qualified Account Plans		§ 7.05(f)
NYSE		§ 4.05(b)
Offer		Recitals
Offer Documents		§ 2.01(a)
Offer Price		Recitals
Offer Recommendation		§ 2.02(a)
OPP Awards		§ 3.04
Option Merger Consideration		§ 3.01(d)
Other Filings		§ 4.12(a)
Parent		Preamble
Parent’s Title Notice		§ 7.07(h)
Participation Agreements		§ 4.13(e)
Participation Party		§ 4.13(e)
Paying Agent		§ 3.03(a)
Permits		§ 4.06(a)
Plans		§ 4.10(a)
Preemptive Rights		§ 4.01(d)
Preferred Liquidating Payment Amount		§ 2.12
Property Agreements		§ 4.13(c)
Proxy Statement		§ 4.05(b)

Defined Term	Location of Definition
Purchaser Insiders		§ 2.03(a)
REA		§ 4.13(h)
REIT		§ 4.15(b)
Rent Roll		§ 4.13(g)
Representative		§ 7.04(a)
Sarbanes-Oxley Act		§ 4.07(d)
Schedule 14D-9		§ 2.02(a)
Schedule TO		§ 2.01(a)
Scheduled Executive Contracts		§ 7.05(a)
SDAT		§ 2.08(a)
SEC		§ 2.01(a)
Section 16		§ 7.05(e)
Securities Act		§ 4.05(b)
Subsequent Offering Period		§ 2.01(b)
Super REIT MergerSub		Preamble
Supplemental Indenture		§ 4.03(b)
Surviving Corporation		§ 2.05(a)
Surviving Partnership		§ 2.05(b)
Takeover Statute		§ 4.23
Tax Protection Agreements		§ 4.15(o)
Tax Returns		§ 4.15(a)
Tender Offer Conditions		§ 2.01(a)
Termination Date		§ 9.01
Termination Expenses		§ 9.04(e)
Third Party		§ 4.13(j)
Top-Up Option		§ 2.04(a)
Top-Up Shares		§ 2.04(a)
Top-Up Notice		§ 2.04(c)
Transfer Taxes		§ 7.08
Uncertificated Units		§ 3.03(d)
Walk-Away Date		§ 9.01(b)

Section 1.02 Interpretation and Rules of Construction .

In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

(a) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;

(b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;

(c) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;

(d) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;

(e) references to any statute, rule or regulation are to the statute, rule or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated under the statute) and to any Section of any statute, rule or regulation include any successor to the section;

(f) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein;

(g) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;

(h) references to a person are also to its successors and permitted assigns; and

(i) the use of “or” is not intended to be exclusive unless expressly indicated otherwise.

ARTICLE II

THE OFFER AND THE MERGERS

Section 2.01 The Offer .

(a) Provided that this Agreement shall not have been terminated in accordance with Article IX, and none of the events set forth in paragraphs (a), (b), (c) (to the extent performance is required theretofore), (e) and (f) of Annex I hereto shall have occurred and be continuing, as promptly as practicable and in any event within ten (10) Business Days after the date hereof, MergerSub shall commence (within the meaning of Rule 14d-2 under the Exchange

Act) an offer to purchase all outstanding Company Common Shares at the Offer Price, and shall, upon commencement of the Offer but after affording the Company reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “ Schedule TO ”) and all other necessary documents with the Securities and Exchange Commission (the “ SEC ”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “ Offer Documents ”), and shall use its commercially reasonable efforts to consummate the Offer, subject to the terms and conditions thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex I hereto (the “ Tender Offer Conditions ”), MergerSub shall, as soon as possible after the expiration of the Offer (or, if applicable, the expiration of the “initial offering period”), accept for payment, and pay for (after giving effect to any required withholding Tax), all Company Common Shares validly tendered pursuant to the Offer and not withdrawn (the first date of acceptance for payment, the “ Acceptance Date ”). MergerSub and the Company each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and MergerSub shall take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of shares, in each case as and to the extent required by applicable Federal securities laws. MergerSub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comment (written or oral) that may be received by MergerSub or its counsel from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment on any such written and oral comments and proposed responses.

(b) Without the prior written consent of the Company, MergerSub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Common Shares. MergerSub may, in its sole and absolute discretion, increase the price per Company Common Share payable in the Offer without the consent of the Company. The initial expiration date of the Offer shall be the twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act). MergerSub expressly reserves the right to waive any condition to the Offer ( provided that any waiver of the Minimum Tender Condition shall require the prior written consent of the Company) or modify the terms of the Offer, subject to compliance with the Exchange Act and the first sentence of this subsection (b); provided that all such modifications to the terms of the Offer (other than a modification to increase the Offer Price or to waive a condition to the Offer) shall not, in the aggregate, reasonably be expected to delay the Acceptance Date by more than ten Business Days after the first public dissemination of notice of any such modification. Except as expressly provided in this subsection (b), MergerSub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and it is permitted under applicable Law to accept

for payment and pay for tendered shares. Notwithstanding the foregoing, MergerSub shall extend the Offer at any time, and from time to time: (1) if at the then-scheduled expiration date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; provided that any extension shall be in increments of not more than three Business Days (unless a longer period of time is agreed to by the Company in writing, such agreement not to be unreasonably withheld); (2) for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer; or (3) if all of the Tender Offer Conditions are satisfied or waived, and Company Common Shares have been accepted for payment, but the number of Company Common Shares acquired by MergerSub (together with other Company Common Shares owned of record by the Buyer Parties or any of their Affiliates) represent less than 90% of the votes entitled to be cast by the holders of the then outstanding number of Company Common Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to the number of votes such holders have relative to holders of Company Common Shares in accordance with the terms of the Company Series D Preferred Shares), voting together as a class, for an aggregate period of not more than ten Business Days (for all such extensions pursuant to this clause (3)) as a “subsequent offering period” (the “ Subsequent Offering Period ”) in accordance with Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any date on which the Offer is scheduled to expire, MergerSub will accept for payment and pay for all Company Common Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after such date.

Section 2.02 Company Actions .

(a) The Company shall, after affording Parent a reasonable opportunity to review and comment thereon, file with the SEC and mail to the holders of Company Common Shares, as promptly as practicable on or after the date of the filing by Parent and MergerSub of the Offer Documents, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “ Schedule 14D-9 ”) reflecting the recommendation of the Company Board that holders of Company Common Shares tender their Company Common Shares pursuant to the Offer and shall disseminate the Schedule 14D-9 and the Offer Documents to the stockholders of the Company as required by Rule 14d-9 promulgated under the Exchange Act. The Schedule 14D-9 will set forth, and the Company hereby represents, that the Company Board, at a meeting duly called and held at which a quorum was present throughout, has (i) determined that each of the Offer and the Merger is advisable and in the best interests of the Company and its stockholders, (ii) approved the Offer and this Agreement in accordance with the MGCL, (iii) recommended acceptance of the Offer and that holders of Company Common Shares tender their shares in the Offer (the “ Offer Recommendation ”) and approve the Merger by the Company’s stockholders if such approval is required by applicable Law (the “ Merger Recommendation ”), and (iv) provided that the representations in Section 5.08 are accurate and continue to be accurate through the Acceptance Date, and subject to the Company’s continued qualification as a REIT, taken all appropriate and necessary actions to cause the acquisition of Company Common Shares by the Parent and MergerSub in connection

with the Offer to comply with or be exempted from any provision contained in the Company Charter (other than the provisions in Sections 2(c) and 2(d) of Article VII of the Company Charter), Company Bylaws or in the comparable organizational document of any Company Subsidiary that would otherwise prohibit, hinder or delay such transactions and render any and all limitations on ownership of Company Common Shares as set forth in the Company Charter (other than the provisions in Sections 2(c) and 2(d) of Article VII of the Company Charter), including the Ownership Limit set forth in Article VII of the Company Charter, inapplicable to the acquisition of Company Common Shares by Parent and MergerSub in connection with the Offer; provided , however , that the Company may make a Company Adverse Recommendation Change (as hereinafter defined) only prior to the acceptance for payment of Company Common Shares pursuant to the Offer, and in any case only to the extent permitted by Section 7.04(d) (and then only after compliance with Section 7.04(c)). The Company hereby consents to the Offer and to the inclusion in the Offer Documents of the Offer Recommendation and the Merger Recommendation ( provided , that if there has been a Company Adverse Recommendation Change, such change shall be reflected in the Offer Documents or amendments thereto). The Company agrees reasonably promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent, with respect to written information supplied by it specifically for use in the Schedule 14D-9, shall promptly notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall use reasonable best efforts to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to the Company’s stockholders to the extent required by applicable Federal securities laws. The Company shall provide MergerSub (in writing, if written), and consult with MergerSub prior to responding to, any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 as promptly as practicable after receipt of such comments.

(b) In connection with the Offer, the Company will promptly furnish MergerSub with mailing labels, security position listings, non-objecting beneficial owner lists and any available listing or computer list containing the names and addresses of the record holders of the Company Common Shares as of the most recent practicable date and shall furnish MergerSub with such additional available information (including updated lists of holders of Company Common Shares and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists) and such other assistance as the MergerSub or its agents may reasonably request in communicating the Offer to the Company’s record and beneficial stockholders. Subject to the requirements of applicable Laws, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, MergerSub and their Affiliates, associates, agents and advisors, shall keep such information confidential and use the information contained in any such labels, listings and files only in connection with the Offer and the Merger and, should the Offer terminate or if this Agreement shall be terminated, Parent will, upon Company’s written request, deliver to the Company or destroy (and provide a certification of an officer of Parent certifying to such destruction) all copies of such information then in their possession.

Section 2.03 Directors .

(a) Subject to compliance with applicable Laws, promptly upon the payment by Parent for Company Common Shares pursuant to the Offer and from time to time thereafter Parent shall be entitled to designate such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of the total number of directors on the Company Board (determined after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Company Common Shares beneficially owned by Parent and its controlled Subsidiaries bears to the total number of Company Common Shares then outstanding (including Company Common Shares that are accepted for payment, but excluding any shares held by the Company or any of its Subsidiaries), and the Company shall, upon request of Parent, promptly take all actions necessary to cause Parent’s designees to be so elected, including, if necessary, seeking the resignations of one or more existing directors; provided , however , that Parent shall be entitled to designate at least a majority of the directors on the Company Board (as long as Parent and its controlled Subsidiaries beneficially own a majority of the outstanding Company Common Shares, which for these purposes shall exclude any Company Common Shares held by the Company or any of its Subsidiaries); and provided , further , that prior to the Effective Time, the Company Board shall always have at least two members who are (1) not officers, directors, employees or designees of Parent or any of its Affiliates (“ Purchaser Insiders ”) or officers or directors of Affiliates of the Company (other than by reason of being directors of the Company) or officers or directors of any joint venture partner or participant (other than the Company) or its Affiliates (“ Interested Persons ”), (2) members of the Company Board as of the date hereof, and (3) reasonably satisfactory to Parent. If the number of directors who are not Purchaser Insiders is reduced below two prior to the Effective Time, the remaining director who is not a Purchaser Insider shall be entitled to designate a Person to fill such vacancy who is not a Purchaser Insider or Interested Person and who shall be a director not deemed to be a Purchaser Insider or Interested Person for all purposes of this Agreement; provided that if the number of directors who are not Purchaser Insiders is reduced to zero prior to the Effective Time, a majority of the members of the Company Board at the time of the execution of this Agreement shall be entitled to designate two Persons to fill such vacancies who are not Purchaser Insiders or Interested Persons and who are reasonably satisfactory to Parent and who shall be directors not deemed to be Purchaser Insiders for all purposes of this Agreement.

(b) The Company’s obligations to appoint Parent’s designees to the Company Board shall be subject to Section 14(f) of the Exchange Act and Rule 14-f thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.03 and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors as is required under such Section and Rule in order to fulfill its obligations under this Section 2.03. Parent will supply to Company any information with respect to itself and its officers, directors and Affiliates required by such Section and Rule.

(c) Following the election or appointment of Parent’s designees pursuant to this Section 2.03 and prior to the Effective Time, any amendment or termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Parent, the waiver of any of the Company’s rights hereunder, or the taking of any other action by the Company in connection with this Agreement or the transactions contemplated hereby required to be taken by the Company Board will require the concurrence of the two directors of Company then in office who are not Purchaser Insiders if such amendment, termination, extension or waiver would or could reasonably be expected to have an adverse effect on the stockholders of the Company other than Parent and its Affiliates. The directors of the Company who are not Purchaser Insiders shall have the authority to retain such counsel (which may include current counsel to the Company) and other advisors at the expense of the Company as determined appropriate by such directors and shall have the authority to institute any action on behalf of the Company to enforce the performance of this Agreement.

Section 2.04 Top-Up Option .

(a) Subject to ‎Section 2.04(b) and Section 2.04(c) hereof, the Company grants to MergerSub an irrevocable option (the “ Top-Up Option ”), for so long as this Agreement has not been terminated pursuant to the provisions of Article IX, to purchase from the Company at a price per share equal to the Offer Price the number of authorized and unissued Company Common Shares equal to the number of Company Common Shares that, when added to the number of Company Common Shares owned by the Buyer Parties and their Affiliates at the time of exercise of the Top-Up Option or the taking of any action under Section 3-106 of the MGCL as contemplated by Section 7.02 (whichever is greater), constitutes one (1) Company Common Share more than 90% of the votes entitled to be cast by the holders of the then outstanding number of Company Common Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to the number of votes such holders have relative to holders of Company Common Shares in accordance with the terms of the Company Series D Preferred Shares), voting together as a class, on a fully diluted basis (which assumes the exercise of all in-the-money options for Company Common Shares vested and exercisable as of the Acceptance Date and 60 days thereafter, at the time of the expiration of the Offer), that would be outstanding immediately after the issuance of all Company Common Shares subject to the Top-Up Option (such Company Common Shares subject to the Top-Up Option, the “ Top-Up Shares ”).

(b) The Top-Up Option may be exercised by MergerSub, in whole or in part, only once, at any time during the 10 Business Day period following the Acceptance Date, or if the Subsequent Offering Period is made available, during the 10 Business Day period following the expiration date of the Subsequent Offering Period and only if Parent and MergerSub collectively shall own Company Common Shares as of such time entitled to cast less than 90%

of the votes entitled to be cast by the holders of the then outstanding number of Company Common Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to the number of votes such holders have relative to holders of Company Common Shares in accordance with the terms of the Company Series D Preferred Shares), voting together as a class, on a fully diluted basis (which assumes the exercise of all in-the-money options for Company Common Shares vested and exercisable as of the Acceptance Date and 60 days thereafter, at the time of the expiration of the Offer); provided , however , that notwithstanding anything in this Agreement to the contrary (i) the Top-Up Option shall not be exercisable if (A) the number of Company Common Shares issuable upon exercise of such Top-Up Option would exceed the number of authorized but unissued Company Common Shares or (B) if any provision of applicable Laws or any judgment, injunction, order or decree of any Governmental Authority would prohibit, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority or the Company’s stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. The aggregate purchase price payable for the Company Common Shares being purchased by MergerSub pursuant to the Top-Up Option shall be determined by multiplying the number of such shares by the Offer Price and shall be paid in cash.

(c) In the event MergerSub wishes to exercise the Top-Up Option, MergerSub shall deliver to the Company a notice (the “ Top-Up Notice ”) setting forth (i) the number of Top-Up Shares that MergerSub intends to purchase pursuant to the Top-Up Option, (ii) the manner in which MergerSub intends to pay the applicable exercise price and (iii) the place and time at which the closing of the purchase of such Top-Up Shares by MergerSub is to take place. The Top-Up Notice shall also include an undertaking signed by Parent and MergerSub that, as promptly as practicable following such exercise of the Top-Up Option, MergerSub intends to (and MergerSub shall, as promptly as practicable after such exercise) consummate the Merger in accordance with the MGCL as contemplated by Section 7.02. At the closing of the purchase of the Top-Up Shares, Parent and MergerSub shall cause to be delivered to the Company the consideration required to be delivered in exchange for the Top-Up Shares, and the Company shall cause to be issued to MergerSub, a certificate representing the Top-Up Shares. The parties hereto agree to use their reasonable best efforts to cause the closing of the purchase of the Top-Up Shares to occur on the same day that the Top-Up Notice is deemed received by the Company pursuant to ‎Section 10.02, and if not so consummated on such day, as promptly thereafter as possible. The parties further agree to use their reasonable best efforts to cause the Merger to be consummated in accordance with the MGCL as contemplated by ‎Section 7.02 as close in time as possible to (including, to the extent possible, on the same day as) the issuance of the Top-Up Shares.

Parent and MergerSub understand that the Top-Up Shares will not be registered under the Securities Act and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. MergerSub represents, warrants and agrees that the

Top-Up Option is being, and the Top-Up Shares will be, acquired by MergerSub for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act. Any certificates representing Top-Up Shares may include any legends required by applicable securities laws.

Section 2.05 Mergers .

(a) Subject to the terms and conditions of this Agreement, and in accordance with the MGCL, at the Effective Time, MergerSub and the Company shall consummate the Merger pursuant to which (i) MergerSub shall be merged with and into the Company and the separate existence of MergerSub shall thereupon cease and (ii) the Company shall be the surviving corporation in the Merger (the “ Surviving Corporation ”). The Merger shall have the effects specified in the MGCL.

(b) Subject to the terms and conditions of this Agreement, and in accordance with the DRULPA and the DLLCA, at the DownREIT Merger Effective Time, Super REIT MergerSub and DownREIT Partnership shall consummate the DownREIT Merger pursuant to which (i) Super REIT MergerSub shall be merged with and into DownREIT Partnership and the separate existence of Super REIT MergerSub shall thereupon cease, and (ii) the DownREIT Partnership shall be the surviving limited partnership in the DownREIT Merger (the “ Surviving Partnership ”). The DownREIT Merger shall have the effects specified in Section 17-211 of the DRULPA. The sole general partner of the Surviving Partnership shall be DRP Trust.

Section 2.06 Tax Characterization . Parent, MergerSub and the Company intend that, for U.S. federal and state income tax purposes, (i) the Offer and the Merger shall, in the case of each holder of Company Common Shares that receives the Offer Price or the Company Common Shares Cash Merger Consideration in exchange for such holder’s Company Common Shares, be treated as a taxable purchase of Company Common Shares, and (ii) the Liquidation shall be treated as a distribution of all of the assets of the Company in complete liquidation of the Company described in Sections 331, 336 and 562 of the Code.

Section 2.07 Organizational Documents .