OR PRIOR TO THE EFFECTIVE DATE.
(C)
DELIVERY OF CLOSING DOCUMENTS.
AT OR PRIOR
TO THE EFFECTIVE TIME, THE PARENT SHALL HAVE DELIVERED TO THE COMPANY A
CERTIFICATE OF THE PRESIDENT AND THE CHIEF FINANCIAL OFFICER OF PARENT, DATED AS
OF THE EFFECTIVE DATE, STATING THAT THE CONDITIONS PRECEDENT SET FORTH IN
SECTIONS 6.3(A) AND (B) HEREOF HAVE BEEN SATISFIED AND SUCH RELATED ASSURANCES
AS COMPANY MAY REASONABLY REQUEST.
(D)
TAX OPINION.
THE COMPANY SHALL HAVE
RECEIVED AN OPINION FROM DAVIS WRIGHT & TREMAINE LLP, COUNSEL TO THE COMPANY,
DATED AS OF THE EFFECTIVE TIME, SUBSTANTIALLY TO THE EFFECT THAT, ON THE BASIS
OF THE FACTS, REPRESENTATIONS AND ASSUMPTIONS SET FORTH IN SUCH OPINION WHICH
ARE CONSISTENT WITH THE STATE OF FACTS EXISTING AT THE EFFECTIVE TIME, THE
MERGER WILL BE TREATED FOR FEDERAL INCOME TAX PURPOSES AS A REORGANIZATION
WITHIN THE MEANING OF SECTION 368(A) OF THE CODE AND THAT ACCORDINGLY:
(I)
NO GAIN OR LOSS WILL BE RECOGNIZED BY
THE COMPANY AS A RESULT OF THE MERGER;
(II)
NO GAIN OR LOSS WILL BE RECOGNIZED BY THE
STOCKHOLDERS OF THE COMPANY WHO EXCHANGE COMPANY COMMON STOCK FOR PARENT COMMON
STOCK PURSUANT TO THE MERGER (EXCEPT WITH RESPECT TO THE CASH COMPONENT AND ANY
CASH RECEIVED IN LIEU OF FRACTIONAL SHARES);
(III)
THE TAX BASIS OF THE PARENT COMMON STOCK
RECEIVED BY THE STOCKHOLDERS WHO EXCHANGE ALL OF THEIR COMPANY COMMON STOCK IN
THE MERGER WILL BE THE SAME AS THE TAX BASIS OF THE COMPANY STOCK SURRENDERED IN
EXCHANGE THEREFOR; AND
(IV)
THE HOLDING PERIOD OF THE PARENT COMMON STOCK
RECEIVED BY A STOCKHOLDER OF THE COMPANY PURSUANT TO THE MERGER WILL INCLUDE THE
PERIOD DURING WHICH THE COMPANY COMMON STOCK SURRENDERED THEREFOR WAS HELD,
PROVIDED THE COMPANY COMMON STOCK IS A CAPITAL ASSET IN THE HANDS OF THE
STOCKHOLDER OF THE COMPANY AT THE TIME OF THE MERGER.
Parent and the Company shall each provide reasonable cooperation, including
making reasonable representations, to Davis Wright & Tremaine LLP, to enable
them to render such opinion.
ARTICLE VII
TERMINATION
7.1.
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED
AT ANY TIME PRIOR TO THE EFFECTIVE TIME, WHETHER BEFORE OR AFTER APPROVAL OF THE
MERGER BY THE COMPANY'S STOCKHOLDERS OR THE PARENT'S STOCKHOLDERS:
37
(A)
BY MUTUAL WRITTEN CONSENT OF THE COMPANY
AND PARENT (ON BEHALF OF PARENT AND MERGER SUB);
(B)
BY EITHER THE COMPANY OR PARENT (ON BEHALF
OF PARENT AND MERGER SUB):
(I)
IF THE MERGER SHALL NOT HAVE BEEN
COMPLETED BY JUNE 30, 2006; PROVIDED, HOWEVER, THAT THE RIGHT TO TERMINATE THIS
AGREEMENT PURSUANT TO THIS SECTION 7.1(B)(I) SHALL NOT BE AVAILABLE TO ANY PARTY
WHOSE FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT RESULTS IN
THE FAILURE OF THE MERGER TO BE CONSUMMATED BY SUCH TIME;
(II)
IF STOCKHOLDER APPROVAL SHALL NOT HAVE
BEEN OBTAINED AT THE COMPANY STOCKHOLDERS MEETING DULY CONVENED THEREFOR OR AT
ANY ADJOURNMENT OR POSTPONEMENT THEREOF; PROVIDED, HOWEVER, THAT THE RIGHT TO
TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 7.1(B)(II)