OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE
PARENT MAY, IN ITS SOLE DISCRETION AND AS A CONDITION PRECEDENT TO THE ISSUANCE
THEREOF, REQUIRE THE OWNER OF SUCH LOST, STOLEN OR DESTROYED COMPANY WARRANT TO
DELIVER AN AGREEMENT OF INDEMNIFICATION (BUT WITHOUT HAVING TO POST A BOND), IN
FORM REASONABLY SATISFACTORY TO THE PARENT, AGAINST ANY CLAIM THAT MAY BE MADE
AGAINST THE PARENT, THE SURVIVING CORPORATION OR THE PAYING AGENT WITH RESPECT
TO THE WARRANT CERTIFICATE ALLEGED TO HAVE BEEN LOST, STOLEN OR DESTROYED.
(G)
IF ANY PORTION OF THE PER SHARE MERGER CONSIDERATION OR WARRANT
CONSIDERATION IS TO BE PAID TO A PERSON (OTHER THAN THE ESCROW AGENT) OTHER THAN
THE PERSON IN WHOSE NAME THE APPLICABLE CERTIFICATE OR COMPANY WARRANT, AS THE
CASE MAY BE, IS REGISTERED, IT SHALL BE A
27
CONDITION TO SUCH PAYMENT THAT THE CERTIFICATE OR COMPANY WARRANT SO SURRENDERED
SHALL BE PROPERLY ENDORSED OR OTHERWISE BE IN PROPER FORM FOR TRANSFER AND THAT
THE PERSON REQUESTING SUCH PAYMENT SHALL PAY TO THE PAYING AGENT ANY TRANSFER OR
OTHER TAXES REQUIRED AS A RESULT OF SUCH PAYMENT TO A PERSON OTHER THAN THE
REGISTERED HOLDER OF SUCH CERTIFICATE OR COMPANY WARRANT OR ESTABLISH TO THE
SATISFACTION OF THE PAYING AGENT THAT SUCH TAX HAS BEEN PAID OR IS NOT PAYABLE.
(H)
ANY PORTION OF 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 THE 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 THE PARENT FOR
PAYMENT OF SUCH APPLICABLE CONSIDERATION, WITHOUT ANY INTEREST THEREON.
NOTWITHSTANDING THE FOREGOING, NONE OF PARENT, MERGER SUB, THE COMPANY, THE
SURVIVING CORPORATION NOR 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) SHALL BECOME, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE PROPERTY OF THE 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 THE 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