OF THE EFFECTIVE TIME BUT PRIOR TO
THE ISSUANCE OF THE RESPECTIVE PARENT COMMON STOCK AND (II) A PAYMENT DATE
SUBSEQUENT
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TO THE ISSUANCE OF THE RESPECTIVE PARENT COMMON STOCK, AT THE APPROPRIATE
PAYMENT DATE FOR SUCH DIVIDEND OR OTHER DISTRIBUTION, LESS THE AMOUNT OF ANY
WITHHOLDING TAXES WHICH MAY BE REQUIRED THEREON.
(H)
AFFILIATES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
CERTIFICATES SURRENDERED FOR EXCHANGE BY ANY "AFFILIATE" (AS DETERMINED PURSUANT
TO SECTION 6.8) OF THE COMPANY SHALL NOT BE EXCHANGED UNTIL PARENT HAS RECEIVED
A WRITTEN AGREEMENT FROM SUCH PERSON AS PROVIDED IN SECTION 6.8 HEREOF.
4.3.
DISSENTERS' RIGHTS.
IN ACCORDANCE WITH SECTION 262 OF THE DGCL,
NO APPRAISAL RIGHTS SHALL BE AVAILABLE TO HOLDERS OF SHARES IN CONNECTION WITH
THE MERGER.
4.4.
ADJUSTMENTS TO PREVENT DILUTION.
IN THE EVENT THAT THE COMPANY
CHANGES THE NUMBER OF SHARES OR SECURITIES CONVERTIBLE OR EXCHANGEABLE INTO OR
EXERCISABLE FOR SHARES, OR PARENT CHANGES THE NUMBER OF SHARES OF PARENT COMMON
STOCK OR SECURITIES CONVERTIBLE OR EXCHANGEABLE INTO OR EXERCISABLE FOR SHARES
OF PARENT COMMON STOCK, ISSUED AND OUTSTANDING PRIOR TO THE EFFECTIVE TIME AS A
RESULT OF A RECLASSIFICATION, STOCK SPLIT (INCLUDING A REVERSE SPLIT), STOCK
DIVIDEND OR DISTRIBUTION, RECAPITALIZATION, MERGER, SUBDIVISION, ISSUER TENDER
OR EXCHANGE OFFER, OR OTHER SIMILAR TRANSACTION, THE EXCHANGE RATIO SHALL BE
EQUITABLY ADJUSTED AS PARENT AND THE COMPANY SHALL MUTUALLY AGREE (SUCH
AGREEMENT NOT TO BE UNREASONABLY WITHHELD OR DELAYED) SO AS TO PRESERVE THE
ECONOMIC BENEFITS THAT PARENT AND THE COMPANY REASONABLY EXPECTED ON THE DATE OF
THIS AGREEMENT TO RECEIVE AS A RESULT OF THE CONSUMMATION OF THE MERGER AND THE
OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
EXCEPT AS SET
FORTH IN THE DISCLOSURE LETTER DELIVERED TO PARENT BY THE COMPANY THAT IS
ATTACHED TO THIS AGREEMENT (THE "COMPANY DISCLOSURE LETTER") (ANY MATTER
DISCLOSED IN A SECTION OR SUBSECTION OF THE COMPANY DISCLOSURE LETTER SHALL
QUALIFY THE CORRESPONDINGLY NUMBERED REPRESENTATION, WARRANTY AND COVENANT OF
THIS AGREEMENT AND ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY IN THIS AGREEMENT REGARDLESS OF WHETHER SUCH MATTER IS SPECIFICALLY
CROSS REFERENCED IN SUCH SECTION OR SUBSECTION SO LONG AS THE DISCLOSURE OF SUCH
MATTER IS SUFFICIENT AS TO MAKE ITS RELEVANCE TO SUCH OTHER REPRESENTATION,
WARRANTY AND COVENANT READILY APPARENT), THE COMPANY HEREBY REPRESENTS AND
WARRANTS TO PARENT AND MERGER SUB THAT:
(A)
ORGANIZATION, GOOD STANDING AND QUALIFICATION.
EACH OF THE
COMPANY AND ITS SUBSIDIARIES HAS BEEN DULY INCORPORATED AND IS VALIDLY EXISTING
AS A CORPORATION IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION IN WHICH IT
IS CHARTERED OR ORGANIZED WITH FULL CORPORATE POWER AND AUTHORITY TO OWN OR
LEASE, AS THE CASE MAY BE, AND TO OPERATE ITS PROPERTIES AND CONDUCT ITS
BUSINESS AS PRESENTLY CONDUCTED, AND IS DULY
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QUALIFIED TO DO BUSINESS AS A FOREIGN CORPORATION AND IS IN GOOD STANDING UNDER
THE LAWS OF EACH JURISDICTION WHICH REQUIRES SUCH QUALIFICATION EXCEPT WHERE
FAILURE TO SO QUALIFY