THE MERGER CONSIDERATION MADE AVAILABLE TO THE
PAYING AGENT PURSUANT TO SECTION 3.5(A) THAT REMAINS UNCLAIMED SIX MONTHS AFTER
THE EFFECTIVE TIME SHALL BE RETURNED TO PARENT, UPON DEMAND, AND ANY HOLDER WHO
HAS NOT SURRENDERED CERTIFICATES OR COMPANY WARRANTS FOR THE APPLICABLE PER
SHARE MERGER CONSIDERATION OR WARRANT CONSIDERATION IN ACCORDANCE WITH THIS
SECTION 3.5 PRIOR TO THAT TIME SHALL THEREAFTER LOOK ONLY TO PARENT FOR PAYMENT
OF SUCH APPLICABLE CONSIDERATION, WITHOUT ANY INTEREST THEREON.
NOTWITHSTANDING
THE FOREGOING, NONE OF PARENT, MERGER SUB, THE COMPANY, THE SURVIVING
CORPORATION OR THE PAYING AGENT SHALL BE LIABLE TO ANY SUCH HOLDER FOR ANY
AMOUNTS PAID TO A GOVERNMENTAL ENTITY PURSUANT TO APPLICABLE LAW RELATING TO
ABANDONED PROPERTY, ESCHEAT OR SIMILAR LAWS.
ANY AMOUNTS REMAINING UNCLAIMED BY
HOLDERS TWO YEARS AFTER THE EFFECTIVE TIME (OR SUCH EARLIER DATE, IMMEDIATELY
PRIOR TO SUCH TIME WHEN THE AMOUNTS WOULD OTHERWISE ESCHEAT TO OR BECOME THE
PROPERTY OF ANY GOVERNMENTAL ENTITY)
17
SHALL BECOME, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROPERTY OF PARENT,
FREE AND CLEAR OF ANY LIENS OF ANY PERSON PREVIOUSLY ENTITLED THERETO.
ANY
PORTION OF THE MERGER CONSIDERATION MADE AVAILABLE TO THE PAYING AGENT PURSUANT
TO SECTION 3.5(A) TO PAY FOR SHARES OF COMPANY COMMON STOCK FOR WHICH APPRAISAL
RIGHTS HAVE BEEN PERFECTED SHALL BE RETURNED TO PARENT UPON DEMAND.
(I)
EACH OF THE SURVIVING CORPORATION, PARENT AND THE PAYING AGENT
SHALL BE ENTITLED TO DEDUCT AND WITHHOLD FROM THE CONSIDERATION OTHERWISE
PAYABLE TO ANY PERSON PURSUANT TO THIS ARTICLE III SUCH AMOUNTS AS IT IS
REQUIRED TO DEDUCT AND WITHHOLD WITH RESPECT TO THE MAKING OF SUCH PAYMENT UNDER
ANY PROVISION OF FEDERAL, STATE, LOCAL OR FOREIGN TAX LAW.
IF THE SURVIVING
CORPORATION, PARENT OR THE PAYING AGENT SO WITHHOLDS AMOUNTS, SUCH AMOUNTS SHALL
BE TREATED FOR ALL PURPOSES OF THIS AGREEMENT AS HAVING BEEN PAID TO THE HOLDER
OF SHARES OF COMPANY COMMON STOCK, COMPANY OPTIONS OR COMPANY WARRANTS, AS THE
CASE MAY BE, IN RESPECT OF WHICH THE SURVIVING CORPORATION, PARENT OR THE PAYING
AGENT MADE SUCH DEDUCTION OR WITHHOLDING.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub as follows:
SECTION 4.1.
ORGANIZATION OF COMPANY.
THE COMPANY IS A CORPORATION
DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
STATE OF DELAWARE, HAS ALL REQUISITE CORPORATE POWER TO OWN, LEASE AND OPERATE
ITS PROPERTY AND TO CARRY ON ITS BUSINESS AS NOW BEING CONDUCTED, AND IS DULY
QUALIFIED OR LICENSED TO DO BUSINESS AND IS IN GOOD STANDING AS A FOREIGN
CORPORATION IN EACH JURISDICTION IN WHICH THE NATURE OF ITS BUSINESS OR
OWNERSHIP OR LEASING OF PROPERTIES MAKES SUCH QUALIFICATION OR LICENSING
NECESSARY AND WHERE THE FAILURE TO BE SO QUALIFIED OR LICENSED WOULD REASONABLY
BE EXPECTED TO RESULT IN A COMPANY MATERIAL ADVERSE EFFECT.
FOR PURPOSES OF
THIS AGREEMENT, "COMPANY MATERIAL ADVERSE EFFECT" SHALL MEAN A MATERIAL ADVERSE
EFFECT ON THE BUSINESS, ASSETS, LIABILITIES, CONDITION (FINANCIAL OR OTHERWISE),
PROPERTY OR