OF MERGER (THE "CERTIFICATE OF MERGER") IN SUCH FORM AS MAY BE AGREED BY THE
PARTIES HERETO AND AS REQUIRED BY THE RELEVANT PROVISIONS OF THE CGCL (THE TIME
OF SUCH FILING WITH THE SECRETARY OF STATE OF THE STATE OF CALIFORNIA, OR SUCH
LATER TIME AS MAY BE AGREED IN WRITING BY COMPANY AND PARENT AND SPECIFIED IN
THE CERTIFICATE OF MERGER, BEING THE "EFFECTIVE TIME") AS SOON AS PRACTICABLE ON
OR AFTER THE CLOSING DATE (AS HEREIN DEFINED).
THE TERM "AGREEMENT" AS USED
HEREIN REFERS TO THIS AGREEMENT AND PLAN OF MERGER, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, AND ALL SCHEDULES HERETO (INCLUDING THE COMPANY SCHEDULE AND
THE PARENT SCHEDULE, AS DEFINED IN THE PREAMBLES TO ARTICLES II AND III HEREOF,
RESPECTIVELY).
UNLESS THIS AGREEMENT SHALL HAVE BEEN TERMINATED PURSUANT TO
SECTION 8.1, THE CLOSING OF THE MERGER (THE "CLOSING") SHALL TAKE PLACE AT THE
OFFICES OF MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. ("MINTZ LEVIN"),
COUNSEL TO PARENT, AT 666 THIRD AVENUE, NEW YORK, NEW YORK 10017, AT A TIME AND
DATE TO BE SPECIFIED BY THE PARTIES, WHICH SHALL BE NO LATER THAN THE SECOND
BUSINESS DAY AFTER THE SATISFACTION OR WAIVER OF THE CONDITIONS SET FORTH IN
ARTICLE VI, OR AT SUCH OTHER TIME, DATE AND LOCATION AS THE PARTIES HERETO AGREE
IN WRITING (THE "CLOSING DATE").
CLOSING SIGNATURES MAY BE TRANSMITTED BY
FACSIMILE.
1.3
EFFECT OF THE MERGER.
AT THE EFFECTIVE TIME, THE EFFECT OF THE
MERGER SHALL BE AS PROVIDED IN THIS AGREEMENT AND THE APPLICABLE PROVISIONS OF
THE CGCL, AS APPLICABLE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND
SUBJECT THERETO, AT THE EFFECTIVE TIME ALL THE PROPERTY, RIGHTS, PRIVILEGES,
POWERS AND FRANCHISES OF THE COMPANY AND MERGER SUB SHALL VEST IN THE SURVIVING
CORPORATION, AND ALL DEBTS, LIABILITIES AND DUTIES OF THE COMPANY AND MERGER SUB
SHALL BECOME THE DEBTS, LIABILITIES AND DUTIES OF THE SURVIVING CORPORATION.
1.4
CERTIFICATE OF INCORPORATION; BYLAWS.
(A)
AT THE EFFECTIVE TIME,
THE CERTIFICATE OF INCORPORATION OF THE MERGER SUB SHALL BE THE CERTIFICATE OF
INCORPORATION OF THE SURVIVING CORPORATION.
(B)
ALSO AT THE EFFECTIVE TIME, THE BYLAWS OF THE MERGER SUB SHALL BE
THE BYLAWS OF THE SURVIVING CORPORATION.
1.5
EFFECT ON CAPITAL STOCK.
SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, AT THE EFFECTIVE TIME, BY VIRTUE OF THE MERGER AND THIS
AGREEMENT AND WITHOUT ANY ACTION ON THE PART OF MERGER SUB, THE COMPANY OR THE
HOLDERS OF ANY OF THE FOLLOWING SECURITIES, THE FOLLOWING SHALL OCCUR:
(A)
CONVERSION OF COMPANY CAPITAL STOCK.
EACH SHARE OF COMPANY COMMON
STOCK, EACH SHARE OF COMPANY PREFERRED STOCK (COLLECTIVELY, THE "COMPANY CAPITAL
STOCK") AND EACH VESTED COMPANY OPTION (SUBJECT TO THE PROVISIONS OF SECTION
5.18) ISSUED AND OUTSTANDING IMMEDIATELY PRIOR TO THE EFFECTIVE TIME (EXCLUDING
SHARES TO BE CANCELED PURSUANT TO SECTION 1.5(B) AND DISSENTING SHARES PURSUANT
TO SECTION 1.13) WILL AS OF THE CLOSING DATE BE AUTOMATICALLY CONVERTED INTO THE
RIGHT TO RECEIVE THAT AMOUNT OF CASH DETERMINED BY