IMMEDIATELY PRIOR TO THE EFFECTIVE TIME DIVIDED BY (Z) THE
EXCHANGE RATIO.
AT OR PRIOR TO THE EFFECTIVE TIME, PARENT SHALL TAKE ALL
CORPORATE ACTION NECESSARY TO RESERVE FOR ISSUANCE A SUFFICIENT NUMBER OF SHARES
OF PARENT COMMON STOCK FOR DELIVERY UPON EXERCISE OF COMPANY WARRANTS ASSUMED BY
IT IN ACCORDANCE WITH THIS SECTION.
(IV)
THE BOARD OF DIRECTORS OF THE COMPANY AND PARENT SHALL, PRIOR TO
THE EFFECTIVE TIME, TAKE ALL SUCH ACTIONS AS MAY BE NECESSARY OR APPROPRIATE
PURSUANT TO RULE 16B-3(D) AND RULE 16B-3(E) TO EXEMPT (I) THE CONVERSION OF
SHARES AND COMPANY OPTIONS INTO PARENT COMMON STOCK OR OPTIONS TO PURCHASE
PARENT COMMON STOCK, AS THE CASE MAY BE, AND (II) THE ACQUISITION OF PARENT
COMMON STOCK OR OPTIONS TO PURCHASE PARENT COMMON STOCK, AS THE CASE MAY BE,
PURSUANT TO THE TERMS OF THIS AGREEMENT BY OFFICERS AND DIRECTORS OF THE COMPANY
SUBJECT TO THE REPORTING REQUIREMENTS OF SECTION 16(A) OF THE EXCHANGE ACT OR BY
EMPLOYEES OF THE COMPANY WHO MAY BECOME AN OFFICER OR DIRECTOR OF PARENT SUBJECT
TO THE REPORTING REQUIREMENTS OF SECTION 16(A) OF THE EXCHANGE ACT.
(B)
BENEFIT PLANS.
(I) SUBJECT TO ANY NECESSARY TRANSITION PERIODS
(DURING WHICH PARENT WILL CAUSE THE COMPANY TO MAINTAIN ITS APPLICABLE EXISTING
WELFARE PLANS), FROM AND AFTER THE EFFECTIVE TIME, PARENT SHALL (X) PROVIDE
EMPLOYEES OF THE COMPANY WHO BECOME EMPLOYEES OF PARENT OR ANY OF ITS
SUBSIDIARIES OR REMAIN EMPLOYEES OF THE COMPANY WITH EMPLOYEE WELFARE AND
PENSION BENEFITS NO LESS FAVORABLE IN THE AGGREGATE THAN THOSE PROVIDED TO
SIMILARLY SITUATED EMPLOYEES OF PARENT AND ITS SUBSIDIARIES, AND (Y) CAUSE EACH
EMPLOYEE WELFARE AND PENSION BENEFIT PLAN, PROGRAM,
-37-
POLICY OR ARRANGEMENT OF PARENT IN WHICH EMPLOYEES OF THE COMPANY BECOME
ELIGIBLE TO PARTICIPATE TO TAKE INTO ACCOUNT FOR PURPOSES OF ELIGIBILITY AND
VESTING THEREUNDER THE SERVICE OF SUCH EMPLOYEES WITH THE COMPANY TO THE SAME
EXTENT AS SUCH SERVICE WAS CREDITED FOR SUCH PURPOSE BY THE COMPANY.
NOTHING
HEREIN SHALL LIMIT THE ABILITY OF PARENT TO AMEND OR TERMINATE ANY OF ITS
WELFARE AND PENSION BENEFIT PLANS IN ACCORDANCE WITH THEIR TERMS AT ANY TIME.
(II)
WHEN EMPLOYEES OF THE COMPANY BECOME ELIGIBLE TO PARTICIPATE IN A
MEDICAL, DENTAL OR HEALTH PLAN OF PARENT, TO THE EXTENT PERMISSIBLE UNDER THE
APPLICABLE BENEFIT PLAN, PARENT SHALL CAUSE EACH SUCH PLAN TO (X) WAIVE ANY
PREEXISTING CONDITION LIMITATIONS TO THE EXTENT SUCH CONDITIONS WERE COVERED
UNDER THE APPLICABLE MEDICAL, HEALTH OR DENTAL PLANS OF THE COMPANY AND (Y)
WAIVE ANY WAITING PERIOD LIMITATION OR EVIDENCE OF INSURABILITY REQUIREMENT
WHICH WOULD OTHERWISE BE APPLICABLE TO SUCH EMPLOYEE ON OR AFTER THE EFFECTIVE
TIME TO THE EXTENT SUCH EMPLOYEE HAD SATISFIED ANY SIMILAR LIMITATION OR
REQUIREMENT UNDER AN ANALOGOUS COMPANY PLAN PRIOR TO THE EFFECTIVE TIME.
(C)
2001 ESPP AND COMPANY 401-K.
THE COMPANY SHALL TAKE ALL ACTIONS
NECESSARY TO CAUSE THE 2001 ESPP AND THE COMPANY'S 401(K) PLAN TO TERMINATE
PRIOR TO THE EFFECTIVE TIME AND TO (I) CAUSE EACH COMPANY EMPLOYEE'S 2001 ESPP