agreements in connection with this
Agreement.
NOW, THEREFORE, in consideration of the premises, and of the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
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ARTICLE I
THE MERGER; CLOSING; EFFECTIVE TIME
1.1.
THE MERGER.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS SET
FORTH IN THIS AGREEMENT, AT THE EFFECTIVE TIME (AS DEFINED IN SECTION 1.3),
MERGER SUB SHALL BE MERGED WITH AND INTO THE COMPANY AND THE SEPARATE CORPORATE
EXISTENCE OF MERGER SUB SHALL THEREUPON CEASE.
THE COMPANY SHALL BE THE
SURVIVING CORPORATION IN THE MERGER (SOMETIMES HEREINAFTER REFERRED TO AS THE
"SURVIVING CORPORATION"), AND THE SEPARATE CORPORATE EXISTENCE OF THE COMPANY
WITH ALL ITS RIGHTS, PRIVILEGES, IMMUNITIES, POWERS AND FRANCHISES SHALL
CONTINUE UNAFFECTED BY THE MERGER, EXCEPT AS SET FORTH IN ARTICLE II.
THE
MERGER SHALL HAVE THE EFFECTS SPECIFIED IN THE DELAWARE GENERAL CORPORATION LAW,
AS AMENDED (THE "DGCL").
1.2.
CLOSING.
THE CLOSING OF THE MERGER (THE "CLOSING") SHALL TAKE
PLACE (I) AT THE OFFICES OF SULLIVAN & CROMWELL, 1870 EMBARCADERO ROAD, PALO
ALTO, AS PROMPTLY AS PRACTICABLE (BUT IN NO EVENT LATER THAN THE FIFTH BUSINESS
DAY) AFTER THE LAST TO BE FULFILLED OR WAIVED OF THE CONDITIONS SET FORTH IN
ARTICLE VII (OTHER THAN THOSE CONDITIONS THAT BY THEIR NATURE ARE TO BE
SATISFIED AT THE CLOSING, BUT SUBJECT TO THE FULFILLMENT OR WAIVER OF THOSE
CONDITIONS) SHALL BE SATISFIED OR WAIVED IN ACCORDANCE WITH THIS AGREEMENT OR
(II) AT SUCH OTHER PLACE AND TIME AND/OR ON SUCH OTHER DATE AS THE COMPANY AND
PARENT MAY AGREE IN WRITING (THE "CLOSING DATE").
1.3.
EFFECTIVE TIME.
AS OF THE CLOSING DATE, THE COMPANY AND PARENT
WILL CAUSE A CERTIFICATE OF MERGER (THE "DELAWARE CERTIFICATE OF MERGER") TO BE
EXECUTED, ACKNOWLEDGED AND FILED WITH THE SECRETARY OF STATE OF DELAWARE AS
PROVIDED IN SECTION 251 OF THE DGCL.
THE MERGER SHALL BECOME EFFECTIVE AT THE
TIME WHEN THE DELAWARE CERTIFICATE OF MERGER HAS BEEN DULY FILED WITH AND
ACCEPTED BY THE SECRETARY OF STATE OF DELAWARE (THE "EFFECTIVE TIME").
ARTICLE II
CERTIFICATE OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION
2.1.
THE CERTIFICATE OF INCORPORATION.
THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF THE COMPANY AS IN EFFECT IMMEDIATELY PRIOR TO
THE EFFECTIVE TIME SHALL BE THE CERTIFICATE OF INCORPORATION OF THE SURVIVING
CORPORATION (THE "CHARTER"), UNTIL DULY AMENDED AS PROVIDED THEREIN OR BY
APPLICABLE LAW, EXCEPT THAT ARTICLE IV OF THE CHARTER SHALL BE AMENDED TO READ
IN ITS ENTIRETY AS FOLLOWS:
"THE AGGREGATE NUMBER OF SHARES THAT THE
CORPORATION SHALL HAVE THE AUTHORITY TO ISSUE IS 1,000 SHARES OF COMMON STOCK,
PAR VALUE $1.00 PER SHARE."
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2.2.
THE BY-LAWS.
THE BY-LAWS OF THE COMPANY IN EFFECT AT THE
EFFECTIVE TIME SHALL BE THE BY-LAWS OF THE SURVIVING CORPORATION (THE
"BY-LAWS"), UNTIL THEREAFTER AMENDED AS PROVIDED THEREIN OR BY APPLICABLE LAW.
ARTICLE III
OFFICERS AND DIRECTORS
OF THE SURVIVING CORPORATION
3.1.
DIRECTORS.
THE DIRECTORS OF MERGER SUB AT THE EFFECTIVE TIME
SHALL, FROM AND AFTER THE EFFECTIVE