ON THE CLOSING DATE, THE COMPANY AND ACQUIROR WILL FILE A
CERTIFICATE OF MERGER OR OTHER APPROPRIATE DOCUMENTS (THE "CERTIFICATE OF
MERGER") WITH THE DELAWARE SECRETARY OF STATE (THE "SECRETARY OF STATE") AND
MAKE ALL OTHER FILINGS OR RECORDINGS REQUIRED BY THE DGCL IN CONNECTION WITH THE
MERGER.
THE MERGER SHALL BECOME EFFECTIVE ON THE DATE AND AT THE TIME WHEN THE
CERTIFICATE OF MERGER IS DULY FILED WITH AND ACCEPTED BY THE SECRETARY OF STATE,
OR AT SUCH LATER DATE AND TIME AS IS AGREED UPON BY THE PARTIES AND SPECIFIED IN
THE CERTIFICATE OF MERGER (SUCH DATE AND TIME AS THE MERGER BECOMES EFFECTIVE IS
REFERRED TO HEREIN AS THE "EFFECTIVE TIME").
(C)
FROM AND AFTER THE EFFECTIVE TIME, THE MERGER SHALL HAVE THE
EFFECTS SET FORTH IN THE DGCL.
(D)
THE CLOSING OF THE MERGER (THE "CLOSING") SHALL BE HELD AT THE
OFFICES OF SIMPSON THACHER & BARTLETT LLP, 2550 HANOVER STREET, PALO ALTO,
CALIFORNIA 94304 (OR SUCH OTHER PLACE AS AGREED BY THE PARTIES) AT 8:00 A.M.,
PACIFIC TIME, ON THE SECOND BUSINESS DAY ON WHICH ALL OF THE CONDITIONS SET
FORTH IN ARTICLE 9 (OTHER THAN THOSE CONDITIONS THAT BY THEIR NATURE ARE TO BE
SATISFIED AT THE CLOSING) CAPABLE OF SATISFACTION PRIOR TO THE CLOSING (IT BEING
UNDERSTOOD THAT THE OCCURRENCE OF THE CLOSING SHALL REMAIN SUBJECT TO THE
SATISFACTION OR WAIVER OF THE CONDITIONS THAT BY THEIR TERMS ARE TO BE SATISFIED
AT CLOSING) ARE SATISFIED OR WAIVED BY THE PARTY OR PARTIES PERMITTED TO DO SO,
UNLESS THE PARTIES HERETO AGREE TO ANOTHER DATE AND TIME; PROVIDED, HOWEVER,
THAT PARENT AND ACQUIROR SHALL NOT BE REQUIRED TO EFFECT THE CLOSING PRIOR TO
THE LATER OF (I) THE EARLIER OF (A) A DATE DURING THE MARKETING PERIOD SPECIFIED
BY PARENT ON NO LESS THAN THREE (3) BUSINESS DAYS' PRIOR WRITTEN NOTICE TO THE
COMPANY AND (B) THE END OF THE MARKETING PERIOD AND (II) THE EARLIER OF (X) THE
FIRST DATE ON WHICH THE REQUESTED CONSENTS SHALL HAVE BEEN OBTAINED AND THE DEBT
TENDER OFFER COMPLETED OR (Y) MARCH 19, 2007.
THE DATE UPON WHICH THE CLOSING
OCCURS IS HEREINAFTER REFERRED TO AS THE "CLOSING DATE".
2.2.
Organizational Documents.
The Certificate of Merger shall provide
that at the Effective Time (a) the Company's certificate of incorporation in
effect immediately prior to
14
the Effective Time shall be the Surviving Corporation's certificate of
incorporation and (b) the Acquiror's by-laws in effect immediately prior to the
Effective Time shall be the Surviving Corporation's by-laws, in each case until
amended in accordance with applicable Law; provided, however, that any such
amendment shall not amend the certificate of incorporation or by-laws in a
manner prohibited by or inconsistent with Section 7.1.
2.3.
Directors and Officers.
From and after the Effective Time (until
such time as their successors are duly elected or appointed and qualified),
(A) Acquiror's directors at the Effective Time shall be the Surviving
Corporation's directors and (B) the Company's officers immediately prior to the