HERETO AS EXHIBIT 9.2(M) (THE "FORMER COMPANY STOCKHOLDERS
INDEMNIFICATION AGREEMENT").
SECTION 9.3.
ADDITIONAL CONDITIONS TO
OBLIGATIONS OF THE COMPANY.
THE OBLIGATION OF THE COMPANY TO EFFECT THE MERGER
IS SUBJECT TO THE SATISFACTION OF EACH OF THE FOLLOWING CONDITIONS, ANY OF WHICH
MAY BE WAIVED, IN WRITING, EXCLUSIVELY BY THE COMPANY:
(A)
PERFORMANCE OF OBLIGATIONS OF PARENT AND
MERGER SUB.
PARENT AND MERGER SUB SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS
ALL OBLIGATIONS REQUIRED TO BE PERFORMED BY THEM UNDER THIS AGREEMENT AT OR
PRIOR TO THE CLOSING DATE; AND THE COMPANY SHALL HAVE RECEIVED A CERTIFICATE
SIGNED ON BEHALF OF PARENT BY THE CHIEF EXECUTIVE OFFICER OF PARENT TO SUCH
EFFECT.
(B)
REPRESENTATIONS AND WARRANTIES.
PARENT AND
MERGER SUB'S REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT MUST BE TRUE AND
CORRECT IN ALL MATERIAL
RESPECTS (EXCEPT REPRESENTATIONS WHICH, AS WRITTEN, ARE
ALREADY QUALIFIED BY MATERIALITY, IN WHICH CASE SUCH REPRESENTATIONS AND
WARRANTIES SHALL BE TRUE AND CORRECT IN ALL RESPECTS) AS OF
46
THE DATE OF THIS AGREEMENT, AND, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES SPEAK AS OF AN EARLIER DATE, AS OF THE EFFECTIVE TIME AS IF MADE AT
THE EFFECTIVE TIME.
(C)
MERGER CONSIDERATION.
PARENT SHALL HAVE
WIRED THE MERGER CONSIDERATION (LESS THE ESCROW AMOUNT AND THE WORKING CAPITAL
ESCROW AMOUNT AND THE PORTION OF THE MERGER CONSIDERATION ALLOCABLE TO THE
ROLLOVER SHARES) TO THE PAYING AGENT, AND THE ESCROW AMOUNT AND THE WORKING
CAPITAL ESCROW AMOUNT TO THE ESCROW AGENT.
(D)
OPINION OF PARENT'S COUNSEL.
THE COMPANY
SHALL HAVE RECEIVED AN OPINION DATED THE CLOSING DATE OF ROPES & GRAY LLP,
COUNSEL TO PARENT AND MERGER SUB, AS TO THE MATTERS SET FORTH IN THE FORM
ATTACHED HERETO AS EXHIBIT 9.3(D).
(E)
CERTIFICATE OF MERGER.
PARENT AND MERGER
SUB SHALL HAVE EXECUTED AND DELIVERED THE CERTIFICATE OF MERGER.
(F)
ESCROW AGREEMENT.
PARENT AND THE ESCROW
AGENT SHALL HAVE EXECUTED AND DELIVERED THE ESCROW AGREEMENT AND THE WORKING
CAPITAL ESCROW AGREEMENT.
(G)
GENERAL.
ALL CORPORATE AND OTHER
PROCEEDINGS OF PARENT AND MERGER SUB IN CONNECTION WITH THE MERGER AND THE OTHER
TRANSACTIONS CONTEMPLATED HEREBY AND ALL DOCUMENTS INCIDENT THERETO SHALL BE
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY AND ITS COUNSEL,
AND THEY SHALL HAVE RECEIVED ALL SUCH COUNTERPART ORIGINAL AND CERTIFIED OR
OTHER COPIES OF SUCH DOCUMENTS AS THEY MAY REASONABLY REQUEST.
ARTICLE X.
TERMINATION AND AMENDMENT
SECTION 10.1.
TERMINATION.
THIS AGREEMENT MAY BE
TERMINATED AT ANY TIME PRIOR TO THE EFFECTIVE TIME:
(A)
BY MUTUAL WRITTEN CONSENT OF PARENT AND THE
COMPANY;
(B)
BY EITHER PARENT OR THE COMPANY, BY GIVING
WRITTEN NOTICE TO THE OTHER PARTY, IF (I) A COURT OF COMPETENT JURISDICTION OR
OTHER GOVERNMENTAL ENTITY SHALL HAVE ISSUED A NONAPPEALABLE FINAL ORDER, DECREE
OR RULING HAVING THE EFFECT OF PERMANENTLY RESTRAINING, ENJOINING OR OTHERWISE
PROHIBITING THE MERGER OR (II) THERE BE ANY STATUTE, LAW, RULE, REGULATION OR
ORDER ENACTED, ENFORCED OR DEEMED APPLICABLE TO THE MERGER WHICH MAKES THE
CONSUMMATION OF THE MERGER ILLEGAL;
(C)
BY PARENT, BY