Common use of Effect of the Merger on Company Securities Clause in Contracts

Effect of the Merger on Company Securities. (a) As of the Effective Time, by virtue of the Merger and without any action on the part of any holder of Common Stock, each share of Common Stock issued and outstanding immediately prior to the Effective Time that is owned by the Company or any Subsidiary of the Company or by Purchaser, Merger Sub or any other Subsidiary of Purchaser shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor. (b) As of the Effective Time, by virtue of the Merger and without any action on the part of any holder of Common Stock, each share of Common Stock issued and outstanding immediately prior to the Effective Time other than any shares of Common Stock to be canceled pursuant to Section 4.2(a) and shares of Dissenting Common Stock (as hereinafter defined), shall be canceled, retired and shall cease to exist and shall be converted automatically into the right to receive an amount equal to $24.85 in cash, without interest (the “Merger Consideration”), payable to the holder thereof upon surrender of the certificate formerly representing such share of Common Stock in the manner provided in Section 4.3, and no other consideration shall be delivered or deliverable on or in exchange therefor. (c) Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders of such shares of Common Stock who have not voted in favor of the adoption of this Agreement or consented thereto in writing and who have properly exercised appraisal rights with respect thereto in accordance with, and who have complied with, Section 262 of the DGCL (the “Dissenting Common Stock”) will not be exchangeable for the right to receive the Merger Consideration, and holders of such shares of Dissenting Common Stock will be entitled to receive payment of the appraised value of such shares of Common Stock in accordance with the provisions of such Section 262 unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such shares of Common Stock will thereupon be treated as if they had been converted into and have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration, without any interest thereon. At the Effective Time, any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the rights provided in Section 262 of the DGCL and as provided in the previous sentence. The Company will give Purchaser (i) notice of any demands received by the Company for appraisals of shares of Common Stock and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such notices and demands. The Company shall not, except with the prior written consent of Purchaser, make any payment with respect to any demands for appraisal or settle any such demands. (d) At or immediately prior to the Effective Time, all options to purchase shares of Common Stock under any plan, program or arrangement of the Company (collectively, the “Stock Option Plans”) (true and correct copies of which have been made available by the Company to Purchaser), whether or not then exercisable (individually, an “Option” and collectively, the “Options”), shall be cancelled and in consideration of such cancellation the holder of a cancelled Option shall be entitled to receive for each share of Common Stock subject to such Option an amount in cash equal to the difference between the Merger Consideration and the per share exercise price of such Option to the extent such difference is a positive number (such amount being hereinafter referred to as the “Option Consideration”). Each outstanding Option, whether or not then vested, that has an exercise price equal to or greater than the Merger Consideration shall be cancelled immediately prior to the Effective Time and in consideration of such cancellation the holder of such cancelled Option shall be entitled to receive $0.05 per share of Class A Common Stock issuable upon exercise of such Option. All amounts payable pursuant to this Section 4.2(d) shall be reduced by any required withholding of taxes and shall be paid without interest. (e) All vested or unvested restricted shares of Common Stock shall, by virtue of this Agreement and, without further action of the Company, Purchaser, Merger Sub or the holder of such restricted shares, vest and become free of all restrictions immediately prior to the Effective Time and shall be canceled, retired and shall cease to exist and shall be converted into the right to receive the Merger Consideration. (f) Except as otherwise may be agreed to by the parties, each of the Stock Option Plans shall terminate as of the Effective Time and any other plan, program or arrangement providing for the issuance or grant of any interest in respect of the capital stock (or any interest convertible into or exchangeable for such capital stock) of the Company or any Subsidiary thereof shall be canceled as of the Effective Time.

Effect of the Merger on Company Securities. (a) As of the Effective Time, by virtue of the Merger and without any action on the part of any holder of Company Common Stock, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time that is owned by the Company or any Subsidiary of the Company or by Purchaser, Merger Sub or any other Subsidiary of Purchaser or is held in the treasury of the Company shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor. (b) As of the Effective Time, by virtue of the Merger and without any action on the part of any holder of Company Common Stock, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time other than any shares of Company Common Stock to be canceled pursuant to Section 4.2(a) and and, except as provided in Section 4.2(c), shares of Dissenting Common Stock (as hereinafter defined)Stock, automatically shall be canceled, retired and shall cease to exist and shall be converted automatically into the right to receive an amount equal receive, subject to paragraphs (i) and (ii) below of this Section 4.2(b), (x) $24.85 7.34 in cash, without interest (the “Cash Merger Consideration”), (y) 0.4087 shares of common stock, par value $0.0001 per share (“Purchaser Common Stock”) of Purchaser, together with the applicable preferred stock purchase right under the Rights Agreement (the “Rights Agreement”), dated as of November 15, 2001, as amended as of April 29, 2003, and as it may be further amended or modified from time to time, by and between Purchaser and Computershare Trust Company, N.A. (successor in interest to U.S. Stock Transfer Corporation), as rights agent (the “Stock Merger Consideration”) and (z) $3.31 principal amount of 13% senior secured notes due 2013 of Purchaser (the “Purchaser Notes”) to be issued under and governed by an indenture (the “New Indenture”) to be entered into by and among Purchaser, the Subsidiaries of Purchaser that are guarantors of the Purchaser Notes and a trustee selected by Purchaser and reasonably acceptable to the Company (the “Notes Trustee”) which shall include the terms and provisions set forth in the Description of Notes (the “Description of Notes”) annexed as Exhibit C hereto (the “Notes Merger Consideration, and together with the Stock Merger Consideration and Cash Merger Consideration, the “Merger Consideration”), payable to the holder thereof upon surrender of the certificate formerly representing such share of Company Common Stock (or, in the case of uncertificated shares, evidence of such share of Company Common Stock in book-entry form) in the manner provided in Section 4.3, and no other consideration shall be delivered or deliverable on or in exchange therefor. Notwithstanding the foregoing: (i) At any one time prior to the earlier of (a) the date the definitive Proxy/Prospectus is mailed to the stockholders of the Company and (b) the 105th day after the date hereof, upon written notice to the Company (a “Substitution Notice”), Purchaser shall have the right in its sole discretion to increase the Cash Merger Consideration by $2.81 (and pay related fees and expenses) (i.e., such that the total Cash Merger Consideration equals $10.15), which increase shall be effective upon the Company’s receipt of a Substitution Notice from Purchaser, in full substitution of the Notes Merger Consideration (in which case, references to “Cash Merger Consideration” shall be deemed to be the Cash Merger Consideration as increased pursuant to this Section 4.2(b), and “Notes Merger Consideration” shall be deemed to be zero), provided that at the time Purchaser delivers a Substitution Notice to the Company, Purchaser or Merger Sub has entered into binding commitment letters (the “Additional Financing Letters”) pursuant to which it has received commitments from one or more lenders of financing in an amount (when combined with cash on hand at Purchaser agreed to be used as Cash Merger Consideration) sufficient to increase the Cash Merger Consideration by $2.81 (i.e., such that the total Cash Merger Consideration equals $10.15) in full substitution of all of the Notes Merger Consideration (the “Additional Financing”) on terms and conditions that (x) are not less favorable, in the aggregate, to Purchaser and Merger Sub with respect to conditionality (measured against the Financing Letters (it being understood that conditions contained in the Additional Financing that relate to Purchaser and are substantially identical to conditions in the Financing Letters that relate to the Company shall not be considered when determining the conditionality of the Additional Financing)) as determined in the reasonable judgment of Purchaser and Merger Sub; provided, however, that the inclusion in such Additional Financing Letters of the non-occurrence of a material adverse effect on Purchaser (an “Additional Financing Material Adverse Effect”) as a condition to the obligation of such lender or lenders to consummate the Additional Financing shall not be deemed to violate the provisions of this clause (x) so long as such Additional Financing Material Adverse Effect is not less favorable, in the aggregate, to Purchaser and Merger Sub than the definition of Purchaser Material Adverse Effect contained in this Agreement, and (y) would not reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement past the End Date. The Purchaser shall have the right in its sole discretion, on or prior to the delivery of a Substitution Notice, to deliver the Additional Financing Letters to the Company for its written approval (which approval shall be granted or denied by the Company in its sole discretion consistent with the Board’s fiduciary duties within five business days after the Company’s receipt of the Substitution Notice). In the event that the Company approves any Additional Financing Letters in accordance with the prior sentence, the Additional Financing contemplated by such approved Additional Financing Letters shall be considered an “Approved Additional Financing” for purposes of Section 8.3. The Substitution Notice (and corresponding increase in the Cash Merger Consideration in full substitution of the Notes Merger Consideration) pursuant to this Section 4.2(b)(i) shall remain in effect for so long as an Additional Financing Termination has not occurred. For the avoidance of doubt, upon the occurrence of an Additional Financing Termination (if any), subject to Section 4.2(b)(ii), the Cash Merger Consideration shall be $7.34 in cash, without interest, and the Notes Merger Consideration shall be $3.31 principal amount of the Purchaser Notes, as if a Substitution Notice had never been delivered; and (ii) In the event that a CMC IPO (as defined in the Description of Notes) is consummated prior to the date the definitive Proxy/Prospectus is mailed to the stockholders of the Company and a Substitution Notice is not in effect in accordance with Section 4.2(b)(i), Purchaser shall increase the Cash Merger Consideration by an amount equal to either, at the election of Purchaser, (x) $2.81 or (y) $1.405, in substitution of (i) in the case of clause (x) above, the full amount of the Notes Merger Consideration, or (ii) in the case of clause (y) above, in substitution of a principal amount of the Notes Merger Consideration equal to $1.655 (in either which case, subject to Section 4.2(b)(i), references to “Cash Merger Consideration” shall be deemed to be the Cash Merger Consideration as increased pursuant to this Section 4.2(b)(ii) and “Notes Merger Consideration” shall be deemed to be the Notes Merger Consideration as decreased pursuant to this Section 4.2(b)(ii)). (c) Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders any holder of such shares of Company Common Stock who have not voted in favor of the adoption of this Agreement or consented thereto in writing is entitled to demand and who have has properly exercised perfected appraisal rights with respect thereto in accordance with, and who have has complied with, Section 262 of the DGCL (the “Dissenting Common Stock”) will not be exchangeable for converted into the right to receive the Merger ConsiderationConsideration as provided in Section 4.2(b), and holders but instead such holder of such shares of Dissenting Common Stock will be entitled to receive payment of the appraised value of such shares of Company Common Stock in accordance with the provisions of such Section 262 unless and until such holders fail holder fails to perfect or effectively withdraw withdraws or lose their loses its rights to appraisal and payment under the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such shares of Company Common Stock will thereupon be treated as if they had been converted into and have become exchangeable forbecome, at the Effective Time, the right to receive the Merger Considerationreceive, without any interest thereon, the Merger Consideration pursuant to Section 4.2(b), any cash in lieu of fractional shares payable pursuant to Section 4.3(e), any cash in lieu of Fractional Purchaser Notes payable pursuant to Section 4.3(f) and any dividends or other distributions or payments payable pursuant to Section 4.3(d). At the Effective Time, shares of Dissenting Common Stock shall automatically be canceled, retired and shall cease to exist, and any holder of Dissenting Shares Common Stock shall cease to have any rights with respect thereto, except the rights provided in Section 262 of the DGCL and as provided in the previous immediately preceding sentence. The Company will shall give Purchaser (i) prompt notice of any demands received by the Company for appraisals of shares of Company Common Stock and any withdrawals of such demands and any other instruments served pursuant to Section 262 of the DGCL received by the Company and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such notices and demands. The Company shall not, except with the prior written consent of Purchaser, make any payment with respect to any demands for appraisal or settle any such demandsdemands or agree to do any of the foregoing. (d) At or immediately prior to the Effective Time, all options each unexercised and outstanding option to purchase shares of Company Common Stock (individually an “Option”, and collectively, the “Options”) under any plan, program or arrangement of the Company (collectively, the “Stock Option Plans”) (true and correct copies of which have been made available by the Company to Purchaser), whether or not that is then exercisable outstanding as of immediately prior to the Effective Time, if vested (individually, an “Option” and collectively, such vested options being collectively referred to as the “Vested Options”), shall be cancelled and canceled and, in consideration of such cancellation cancellation, the holder of a cancelled canceled Option shall be entitled to receive for each share of Common Stock subject to such Option an amount in cash equal to the difference between the Merger Consideration and the per share exercise price of such Option to the extent such difference is a positive number (such amount being hereinafter referred to as the “Option Consideration”). Each outstanding Option, whether or not then vested, that has an exercise price equal to or greater than the Merger Consideration shall be cancelled immediately prior to the Effective Time and in consideration of such cancellation the holder of such cancelled Option shall be entitled to receive $0.05 per share of Class A Common Stock issuable upon exercise of such Option. All amounts payable pursuant to this Section 4.2(d) shall be reduced by any required withholding of taxes and shall be paid without interest. (e) All vested or unvested restricted shares of Common Stock shall, by virtue of this Agreement and, without further action of the Company, Purchaser, Merger Sub or the holder of such restricted shares, vest and become free of all restrictions immediately prior to the Effective Time and shall be canceled, retired and shall cease to exist and shall be converted into the right to receive the Merger Consideration. (f) Except as otherwise may be agreed to by the parties, each of the Stock Option Plans shall terminate as of the Effective Time and any other plan, program or arrangement providing for the issuance or grant of any interest in respect of the capital stock (or any interest convertible into or exchangeable for such capital stock) of the Company or any Subsidiary thereof shall be canceled as of the Effective Time, be entitled to receive the Option Consideration. (i) For purposes of this Agreement, “Option Consideration” means (x) an amount of cash equal to the positive difference, if any, between the Total Option Cash Consideration, less the Total Cash Exercise Price; (y) the number of shares of Purchaser Common Stock equal to the positive difference, if any, between the Total Option Stock Consideration less the Total Company Stock Exercise Price; and, if applicable, (z) the principal amount of the Purchaser Notes equal to the positive difference, if any, between the Total Option Notes Consideration less the Total Notes Exercise Price.

Effect of the Merger on Company Securities. (a) As of At the Effective Time, by virtue of the Merger and without any action on the part of any holder of Common Stock, each share of Common Stock issued and outstanding immediately prior to the Effective Time that is owned by the Company or any wholly owned Subsidiary of the Company or by Purchaser, Merger Sub or any other wholly owned Subsidiary of Purchaser shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor. (b) As of At the Effective Time, by virtue of the Merger and without any action on the part of any holder of Common Stock, each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares of Common Stock to be canceled pursuant to Section 4.2(a) and shares of Dissenting Common Stock (as hereinafter defined), ) shall automatically be canceled, retired canceled and shall cease to exist and shall be converted automatically into the right to receive an amount equal to $24.85 7.10 in cash, without interest (the “"Merger Consideration”"), payable to the holder thereof upon surrender of the certificate formerly representing such share of Common Stock in the manner provided in Section 4.3, and no other consideration shall be delivered or deliverable on or in exchange therefor. (c) Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, shares of Common Stock (including restricted Common Stock) that are issued and outstanding immediately prior to the Effective Time and that are held by holders of such shares of Common Stock who have not voted in favor of the adoption of this Agreement or consented thereto in writing and who have properly exercised appraisal rights with respect thereto in accordance with, and who have complied with, Section 262 of the DGCL (the “"Dissenting Common Stock”") will not be exchangeable for converted into the right to receive the Merger Consideration, and holders of such shares of Dissenting Common Stock will be entitled to receive payment of the appraised value of such shares of Common Stock in accordance with the provisions of such Section 262 unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively waives, withdraws or loses such right, such shares of Common Stock will thereupon be treated as if they had been converted into and have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration, without any interest thereon. At the Effective Time, any holder of shares of Dissenting Shares Common Stock shall cease to have any rights with respect thereto, except the rights provided in Section 262 of the DGCL and as provided in the previous sentence. The Company will give Purchaser (i) notice of any demands received by the Company for appraisals of shares of Common Stock and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such notices and demands. The Company shall not, except with the prior written consent of Purchaser, make any payment with respect to any demands for appraisal or settle or offer to settle any such demands. (d) At , or immediately prior agree to the Effective Time, all options to purchase shares of Common Stock under do any plan, program or arrangement of the Company (collectively, the “Stock Option Plans”) (true and correct copies of which have been made available by the Company to Purchaser), whether or not then exercisable (individually, an “Option” and collectively, the “Options”), shall be cancelled and in consideration of such cancellation the holder of a cancelled Option shall be entitled to receive for each share of Common Stock subject to such Option an amount in cash equal to the difference between the Merger Consideration and the per share exercise price of such Option to the extent such difference is a positive number (such amount being hereinafter referred to as the “Option Consideration”). Each outstanding Option, whether or not then vested, that has an exercise price equal to or greater than the Merger Consideration shall be cancelled immediately prior to the Effective Time and in consideration of such cancellation the holder of such cancelled Option shall be entitled to receive $0.05 per share of Class A Common Stock issuable upon exercise of such Option. All amounts payable pursuant to this Section 4.2(d) shall be reduced by any required withholding of taxes and shall be paid without interestforegoing. (e) All vested or unvested restricted shares of Common Stock shall, by virtue of this Agreement and, without further action of the Company, Purchaser, Merger Sub or the holder of such restricted shares, vest and become free of all restrictions immediately prior to the Effective Time and shall be canceled, retired and shall cease to exist and shall be converted into the right to receive the Merger Consideration. (f) Except as otherwise may be agreed to by the parties, each of the Stock Option Plans shall terminate as of the Effective Time and any other plan, program or arrangement providing for the issuance or grant of any interest in respect of the capital stock (or any interest convertible into or exchangeable for such capital stock) of the Company or any Subsidiary thereof shall be canceled as of the Effective Time.