Common use of Exchange of Certificates Representing Shares of Common Stock Clause in Contracts

Exchange of Certificates Representing Shares of Common Stock. (a) Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust company, which shall be reasonably satisfactory to the Company, to act as paying agent hereunder (the "Paying Agent") for payment of the Merger ------------ Consideration upon surrender of a certificate or certificates (each, a "Certificate") representing shares of Common Stock. Prior to or concurrently ----------- with the Effective Time, Purchaser shall cause Merger Sub or the Surviving Corporation, as the case may be, to deposit, in trust for the benefit of the holders of Certificates, with the Paying Agent cash in an amount necessary to pay for all the shares of Common Stock pursuant to Section 5.2(b). Such amounts -------------- shall hereinafter be referred to as the "Exchange Fund." ------------- (b) Promptly after the Effective Time, Purchaser shall cause the Paying Agent to mail to each holder of record of shares of Common Stock (i) a letter of transmittal that shall specify that delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, which letter shall be in such form and have such other provisions as Purchaser may reasonably specify and (ii) instructions for effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall promptly receive in exchange therefor the amount of cash into which shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 5.2, and the shares represented by the Certificate so surrendered ----------- shall forthwith be canceled. No interest will be paid or will accrue on the cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment may be made with respect to such Common Stock to such a transferee if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. (c) As of the Effective Time, all shares of Common Stock (other than shares of Common Stock to be canceled and retired in accordance with Section ------- 5.2 (a) and any shares of Dissenting Common Stock) issued and outstanding ------ immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto or arising therefrom (including, without limitation, the right to vote), except the right to receive the Merger Consideration, without interest, upon surrender of the Certificate representing such shares in accordance with Section 5.3(b), and -------------- until so surrendered, the Certificate representing such shares shall represent for all purposes only the right to receive the Merger Consideration, without interest. The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Section 5.3 shall be deemed to ----------- have been paid in full satisfaction of all rights pertaining to the shares of Common Stock theretofore represented by such Certificates. (d) At or after the Effective Time, there shall be no transfers recorded on the stock transfer books of the Company of the shares of Common Stock that were outstanding immediately prior to the Effective Time (other than transfers, consistent with standard settlement procedures, to reflect transactions in shares of Common Stock that occurred in the open market prior to the Effective Time). If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 5. --------- (e) The Paying Agent shall invest the Exchange Fund as directed by Purchaser. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Purchaser as and when requested by Purchaser; provided, however, that any such investment or any such payment of earnings may -------- ------- not delay the receipt by holders of Certificates of any Merger Consideration. (f) Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of all such funds) that remains unclaimed by the former stockholders of the Company 180 days after the Effective Time shall be delivered to the Surviving Corporation. Any holder of Certificates who has not theretofore complied with this Article 5 shall thereafter look only to the Surviving --------- Corporation for payment of any Merger Consideration that may be payable in respect of each share of Common Stock such stockholder holds as determined pursuant to this Agreement, without any interest thereon. (g) None of Purchaser, the Company, the Surviving Corporation, the Paying Agent or any other person shall be liable to any former holder of shares of Common Stock for any amount of the Exchange Fund properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. (h) If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (i) Except as otherwise provided herein or in the letter of transmittal referred to in Section 5.3(b), Purchaser shall pay all charges and expenses (but -------------- excluding income and withholding taxes), including those of the Paying Agent, in connection with the exchange of the Merger Consideration for Certificates. (j) Purchaser shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Common Stock, Options (as defined below) or Warrants such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of applicable state, local or foreign tax ---- law. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made.

Exchange of Certificates Representing Shares of Common Stock. (a) Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust companycompany having net capital of not less than $200 million, which shall be reasonably satisfactory to the Company, to act as paying agent hereunder (the "Paying Agent") for payment of the Merger ------------ Consideration upon surrender of a ------------ certificate or certificates (each, a "Certificate") representing such shares of ----------- Common Stock. Prior to or concurrently ----------- with the Effective Time, Purchaser shall cause Merger Sub or the Surviving Corporation, as the case may be, to deposit, in trust for the benefit of the holders of Certificates, with provide the Paying Agent with cash in an amount amounts necessary to pay for all the shares of Common Stock pursuant to Section 5.2(b). Such amounts -------------- shall hereinafter be -------------- referred to as the "Exchange Fund." ------------- (b) Promptly after the Effective Time, Purchaser shall cause the Paying Agent to mail to each holder of record of shares of Common Stock (i) a letter of transmittal that shall specify that delivery shall be effected, and risk of loss and title to such Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, Agent and which letter shall be in such form and have such other provisions as Purchaser may reasonably specify and (ii) instructions for effecting the surrender of the such Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall promptly receive in exchange therefor the amount of cash into which shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 5.2, and the shares represented by the Certificate so surrendered ----------- shall forthwith be canceled. No interest will be paid or will accrue on the cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment may be made with respect to such Common Stock to such a transferee if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. (c) As of the Effective Time, all shares of Common Stock (other than shares of Common Stock to be canceled and retired in accordance with Section ------- 5.2 (a5.2(a) and -------------- any shares of Dissenting Common Stock) issued and outstanding ------ immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto or arising therefrom (including, without limitation, the right to vote), except the right to receive the Merger Consideration, without interest, upon surrender of the Certificate representing such shares in accordance with Section 5.3(b), and -------------- until so -------------- surrendered, the Certificate representing such shares shall represent for all purposes only the right to receive the Merger Consideration, without interest. The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Section 5.3 shall be deemed to ----------- have been paid ----------- in full satisfaction of all rights pertaining to the shares of Common Stock theretofore represented by such Certificates. (d) At or after the Effective Time, there shall be no transfers recorded on the stock transfer books of the Company of the shares of Common Stock that were outstanding immediately prior to the Effective Time (other than transfers, consistent with standard settlement procedures, to reflect transactions in shares of Common Stock that occurred in the open market prior to the Effective Time). If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 5. --------- (e) The Paying Agent shall invest the Exchange Fund Fund, as directed by Purchaser, in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper rated the highest quality by either Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation or (iv) certificates of deposit, bank repurchase agreements or bankers' acceptances of commercial banks with capital exceeding $500 million. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Purchaser as and when requested by Purchaser; provided, however, that any such investment or any such payment of -------- ------- earnings may -------- ------- not delay the receipt by holders of Certificates of any Merger Consideration. (f) Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of all such funds) that remains unclaimed by the former stockholders of the Company 180 days one year after the Effective Time shall be delivered to the Surviving Corporation. Any holder former stockholders of Certificates the Company who has have not theretofore complied with this Article 5 shall thereafter look only to the Surviving --------- Corporation for payment of --------- any Merger Consideration that may be payable in respect of each share of Common Stock such stockholder holds as determined pursuant to this Agreement, without any interest thereon. (g) None of Purchaser, the Company, the Surviving Corporation, the Paying Agent or any other person shall be liable to any former holder of shares of Common Stock for any amount of the Exchange Fund properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. (h) If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (i) Except as otherwise provided herein or in the letter of transmittal referred to in Section 5.3(b), Purchaser shall pay all charges and expenses (but -------------- excluding income and withholding taxes), including those of the Paying Agent, in connection with the exchange of the Merger Consideration for Certificates. (j) Purchaser shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Common Stock, Stock or Options (as defined below) or Warrants such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of applicable state, local or ---- foreign tax ---- law. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made.

Exchange of Certificates Representing Shares of Common Stock. (a) Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust companycompany having net capital of not less than $200 million, which shall be reasonably satisfactory to the Company, to act as paying agent hereunder (the "“Paying Agent"”) for payment the purpose of the Merger ------------ Consideration upon surrender of a certificate or exchanging certificates representing Company Stock (each, a "“Certificate"”) representing shares of Common Stockfor the Merger Consideration in accordance with this Article IV. Prior to or concurrently ----------- with the Effective Time, Purchaser shall cause Merger Sub or the Surviving Corporation, as the case may be, Corporation to deposit, in trust for the benefit of the holders of Certificates, with provide the Paying Agent with cash in an amount amounts necessary to pay for all the shares of Common Stock pursuant to Section 5.2(b4.2(b) (other than shares of Dissenting Common Stock, if any) and to pay the aggregate Option Consideration pursuant to Section 4.2(d). Such amounts -------------- shall hereinafter be referred to as the "“Exchange Fund." -------------” (b) Promptly after the Effective Time, Purchaser the Surviving Corporation shall cause the Paying Agent to mail to each holder of record (other than the Company, any Subsidiary of the Company, Purchaser, Merger Sub or any other Subsidiary of Purchaser) of shares of Common Stock (i) a letter of transmittal that shall specify that delivery shall be effected, and risk of loss and title to such Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, Agent and which letter shall be in such form and have such other provisions as Purchaser may reasonably specify are reasonable and customary in transactions such as the Merger and (ii) instructions for effecting the surrender of the such Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall promptly receive in exchange therefor the amount of cash into which shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 5.24.2, and the shares represented by the Certificate so surrendered ----------- shall forthwith be canceled. No interest will be paid or will accrue on the cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment may be made with respect to such Common Stock to such a transferee if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. (c) As of the Effective Time, all shares of Common Stock (other than shares of Common Stock to be canceled and retired in accordance with Section ------- 5.2 (a4.2(a) and any shares of Dissenting Common Stock) issued and outstanding ------ immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto or arising therefrom (including, without limitation, the right to vote), except the right to receive the Merger Consideration, without interest, upon surrender of the Certificate representing such shares in accordance with Section 5.3(b4.3(b), and -------------- until so surrendered, each the Certificate representing such shares shall represent for all purposes only the right to receive the Merger Consideration, without interest. The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Section 5.3 4.3 shall be deemed to ----------- have been paid in full satisfaction of all rights pertaining to the shares of Common Stock theretofore represented by such Certificates. (d) At or after the Effective Time, there shall be no transfers recorded on the stock transfer books of the Company of the shares of Common Stock that were outstanding immediately prior to the Effective Time (other than transfers, consistent with standard settlement procedures, to reflect transactions in shares of Common Stock transfers that occurred in the open market prior to the Effective Time). If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 5. ---------IV. (e) The Paying Agent shall invest the Exchange Fund Fund, as directed by Purchaser, in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper rated the highest quality by either Xxxxx’x Investors Services, Inc. or Standard & Poor’s Rating Group, a division of The McGraw Hill Companies, Inc., or (iv) certificates of deposit, bank repurchase agreements or bankers’ acceptances of commercial banks with capital exceeding $500 million. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Purchaser as and when requested by Purchaser; provided, however, that any such investment or any such payment of earnings may -------- ------- not delay the receipt by holders of Certificates of any Merger Consideration. (f) Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of all such funds) that remains unclaimed by the former stockholders of the Company 180 days one year after the Effective Time shall be delivered to the Surviving Corporation. Any holder former stockholders of Certificates the Company who has have not theretofore complied with this Article 5 IV shall thereafter look only to the Surviving --------- Corporation for payment of any Merger Consideration that may be payable in respect of each share of Common Stock such stockholder holds as determined pursuant to this Agreement, without any interest thereon. (g) None of Purchaser, the Company, the Surviving Corporation, the Paying Agent or any other person Person shall be liable to any former holder of shares of Common Stock for any amount of the Exchange Fund properly delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. (h) If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person Person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (i) Except as otherwise provided herein or in the letter of transmittal referred to in Section 5.3(b)herein, Purchaser shall pay all charges and expenses (but -------------- excluding income and withholding taxes)expenses, including those of the Paying Agent, in connection with the exchange of the Merger Consideration for Certificates. (j) Purchaser The Surviving Corporation and, to the extent permitted by applicable Law the Merger Sub, shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Common Stock, Stock or Options (as defined below) or Warrants such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "“Code"”), or any provision of applicable state, local or foreign tax ---- lawLaw. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made.

Exchange of Certificates Representing Shares of Common Stock. (a) Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust company, which shall be reasonably satisfactory to the Company, to act as paying agent hereunder (the "Paying Agent") for payment the purpose of the Merger ------------ Consideration upon surrender of a certificate or exchanging certificates representing Common Stock (each, a "Certificate") representing shares of Common Stockfor the Merger Consideration in accordance with this Article IV. Prior On or prior to or concurrently ----------- with the Effective Time, Purchaser shall, or shall cause Merger Sub or the Surviving CorporationCorporation to, as the case may be, to deposit, in trust for the benefit of the holders of Certificates, with provide the Paying Agent with cash in an amount amounts necessary to pay for the aggregate Merger Consideration in respect of all the shares of Common Stock pursuant to Section 5.2(b4.2(b) (other than shares of Dissenting Common Stock, if any). Such amounts -------------- shall hereinafter be referred to as the "Exchange Fund." -------------" (b) Promptly after the Effective Time, Purchaser the Surviving Corporation shall cause the Paying Agent to mail to each holder of record (other than the Company, any Subsidiary of the Company, Purchaser, Merger Sub or any Subsidiary of Purchaser) of shares of Common Stock (i) a letter of transmittal that shall specify that delivery shall be effected, and risk of loss and title to such Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, Agent and which letter shall be in such form and have such other provisions as Purchaser may reasonably specify are reasonable and customary in transactions such as the Merger and (ii) instructions for effecting the surrender of the such Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall promptly receive in exchange therefor the amount of cash into which shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 5.24.2, and the shares represented by the Certificate so surrendered ----------- shall forthwith be canceled. No interest will be paid or will accrue on the cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment may be made with respect to such Common Stock to such a transferee if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. (c) As of At the Effective Time, all shares of Common Stock (other than shares of Common Stock to be canceled and retired in accordance with Section ------- 5.2 (a4.2(a) and any shares of Dissenting Common Stock) issued and outstanding ------ immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto or arising therefrom (including, without limitation, including the right to vote), except the right to receive the Merger Consideration, without interest, upon surrender of the Certificate representing such shares in accordance with Section 5.3(b4.3(b), and -------------- until so surrendered, the each Certificate representing such shares shall represent for all purposes only the right to receive the Merger Consideration, without interest. The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Section 5.3 4.3 shall be deemed to ----------- have been paid in full satisfaction of all rights pertaining to the shares of Common Stock theretofore represented by such Certificates. (d) At or after the Effective Time, there shall be no transfers recorded on the stock transfer books of the Company of the shares of Common Stock that were outstanding immediately prior to the Effective Time (other than transfers, consistent with standard settlement procedures, to reflect transactions in shares of Common Stock transfers that occurred in the open market prior to the Effective Time). If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 5. ---------IV. (e) The Paying Agent shall invest the Exchange Fund as directed by Purchaser. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Purchaser as and when requested by Purchaser; provided, however, that any such investment or any such payment of earnings may -------- ------- not delay the receipt by holders of Certificates of any Merger Consideration. (f) Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of all such funds) that remains unclaimed by the former stockholders of the Company 180 270 days after the Effective Time shall be delivered to the Surviving Corporation. Any holder former stockholders of Certificates the Company who has have not theretofore complied with this Article 5 IV shall thereafter look only to the Surviving --------- Corporation for payment of any Merger Consideration that may be payable in respect of each share of Common Stock such stockholder holds as determined pursuant to this Agreement, without any interest thereon. (gf) None of Purchaser, the Company, the Surviving Corporation, the Paying Agent or any other person Person shall be liable to any former holder of shares of Common Stock for any amount of the Exchange Fund properly delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. (hg) If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person Person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (ih) Except as otherwise provided herein or in the letter of transmittal referred to in Section 5.3(b), Purchaser shall pay all charges and expenses (but -------------- excluding income and withholding taxes)expenses, including those of the Paying Agent, in connection with the exchange of the Merger Consideration for Certificates. (ji) Purchaser The Surviving Corporation and, to the extent permitted by applicable Law the Merger Sub, shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Common Stock, Options (as defined below) or Warrants Stock such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of applicable state, local or foreign tax ---- lawLaw. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made.

Exchange of Certificates Representing Shares of Common Stock. (a) Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust company, which shall be reasonably satisfactory to the Company, to act as paying agent hereunder (the "Paying Agent") for payment of the Merger ------------ Consideration upon surrender of a certificate or certificates (each, a "Certificate") representing shares of Common Stock. Prior to or concurrently ----------- with the Effective Time, Purchaser shall cause Merger Sub or the Surviving Corporation, as the case may be, to deposit, in trust for the benefit of the holders of Certificates, with provide the Paying Agent with cash in an amount amounts necessary to pay for all the shares of Common Stock pursuant to Section 5.2(b). Such amounts -------------- shall hereinafter be referred to as the "Exchange Fund." -------------" (b) Promptly after the Effective Time, Purchaser shall cause the Paying Agent to mail to each holder of record of shares of Common Stock (i) a letter of transmittal that shall specify that delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, which letter shall be in such form and have such other provisions as Purchaser may reasonably specify and (ii) instructions for effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall promptly receive in exchange therefor the amount of cash into which shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 5.2, and the shares represented by the Certificate so surrendered ----------- shall forthwith be canceled. No interest will be paid or will accrue on the cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment may be made with respect to such Common Stock to such a transferee if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. (c) As of the Effective Time, all shares of Common Stock (other than shares of Common Stock to be canceled and retired in accordance with Section ------- 5.2 (a5.2(a) and any shares of Dissenting Common Stock) issued and outstanding ------ immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto or arising therefrom (including, without limitation, the right to vote), except the right to receive the Merger Consideration, without interest, upon surrender of the Certificate representing such shares in accordance with Section 5.3(b), and -------------- until so surrendered, the Certificate representing such shares shall represent for all purposes only the right to receive the Merger Consideration, without interest. The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Section 5.3 shall be deemed to ----------- have been paid in full satisfaction of all rights pertaining to the shares of Common Stock theretofore represented by such Certificates. (d) At or after the Effective Time, there shall be no transfers recorded on the stock transfer books of the Company of the shares of Common Stock that were outstanding immediately prior to the Effective Time (other than transfers, consistent with standard settlement procedures, to reflect transactions in shares of Common Stock that occurred in the open market prior to the Effective Time). If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 5. ---------. (e) The Paying Agent shall invest the Exchange Fund Fund, as directed by Purchaser. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Purchaser as and when requested by Purchaser; provided, however, that any such investment or any such payment of earnings may -------- ------- not delay the receipt by holders of Certificates of any Merger Consideration. (f) Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of all such funds) that remains unclaimed by the former stockholders of the Company 180 days after the Effective Time shall be delivered to the Surviving Corporation. Any holder of Certificates who has not theretofore complied with this Article 5 shall thereafter look only to the Surviving --------- Corporation for payment of any Merger Consideration that may be payable in respect of each share of Common Stock such stockholder holds as determined pursuant to this Agreement, without any interest thereon. (g) None of Purchaser, the Company, the Surviving Corporation, the Paying Agent or any other person shall be liable to any former holder of shares of Common Stock for any amount of the Exchange Fund properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. (h) If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (i) Except as otherwise provided herein or in the letter of transmittal referred to in Section 5.3(b), Purchaser shall pay all charges and expenses (but -------------- excluding income and withholding taxes), including those direct obligations of the Paying AgentUnited States of America, in connection with (ii) obligations for which the exchange full faith and credit of the Merger Consideration United States of America is pledged to provide for Certificates. the payment of principal and interest, (jiii) Purchaser shall be entitled to deduct and withholdcommercial paper rated the highest quality by either Moodx'x Xxxestors Services, Inc. or cause to be deducted Standard & Poor's Corporation or withheld(iv) certificates of deposit, from the consideration otherwise payable pursuant to this Agreement to any holder bank repurchase agreements or bankers' acceptances of shares of Common Stock, Options (as defined below) or Warrants such amounts as are required to be deducted and withheld commercial banks with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of applicable state, local or foreign tax ---- lawcapital exceeding $500 million. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made.Any net

Exchange of Certificates Representing Shares of Common Stock. (a) Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust company, which shall be reasonably satisfactory to the Company, to act as paying agent hereunder (the "Paying AgentPAYING AGENT") for payment of the Merger ------------ Consideration upon surrender of a certificate or certificates (each, a "CertificateCERTIFICATE") representing shares of Common Stock. Prior to or concurrently ----------- with the Effective Time, Purchaser shall cause Merger Sub or the Surviving Corporation, as the case may be, to deposit, in trust for the benefit of the holders of Certificates, with provide the Paying Agent with cash in an amount necessary to pay for all the shares of Common Stock pursuant to Section SECTION 5.2(b). Such amounts -------------- shall hereinafter be referred to as the "Exchange FundEXCHANGE FUND." -------------" (b) Promptly after the Effective Time, Purchaser shall cause the Paying Agent to mail to each holder of record of shares of Common Stock (i) a letter of transmittal that shall specify that delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, which letter shall be in such form and have such other provisions as Purchaser may reasonably specify and (ii) instructions for effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall promptly receive in exchange therefor the amount of cash into which shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section SECTION 5.2, and the shares represented by the Certificate so surrendered ----------- shall forthwith be canceled. No interest will be paid or will accrue on the cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment may be made with respect to such Common Stock to such a transferee if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. (c) As of the Effective Time, all shares of Common Stock (other than shares of Common Stock to be canceled and retired in accordance with Section ------- 5.2 (aSECTION 5.2(a) and any shares of Dissenting Common Stock) issued and outstanding ------ immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto or arising therefrom (including, without limitation, the right to vote), except the right to receive the Merger Consideration, without interest, upon surrender of the Certificate representing such shares in accordance with Section SECTION 5.3(b), and -------------- until so surrendered, the Certificate representing such shares shall represent for all purposes only the right to receive the Merger Consideration, without interest. The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Section SECTION 5.3 shall be deemed to ----------- have been paid in full satisfaction of all rights pertaining to the shares of Common Stock theretofore represented by such Certificates. (d) At or after the Effective Time, there shall be no transfers recorded on the stock transfer books of the Company of the shares of Common Stock that were outstanding immediately prior to the Effective Time (other than transfers, consistent with standard settlement procedures, to reflect transactions in shares of Common Stock that occurred in the open market prior to the Effective Time). If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article ARTICLE 5. ---------. (e) The Paying Agent shall invest the Exchange Fund Fund, as directed by Purchaser, in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper rated the highest quality by either Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation or (iv) certificates of deposit, bank repurchase agreements or bankers' acceptances of commercial banks with capital exceeding $500 million. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Purchaser as and when requested by Purchaser; providedPROVIDED, howeverHOWEVER, that any such investment or any such payment of earnings may -------- ------- not delay the receipt by holders of Certificates of any Merger Consideration. (f) Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of all such funds) that remains unclaimed by the former stockholders of the Company 180 days one year after the Effective Time shall be delivered to the Surviving Corporation. Any holder holders of Certificates who has have not theretofore complied with this Article ARTICLE 5 shall thereafter look only to the Surviving --------- Corporation for payment of any Merger Consideration that may be payable in respect of each share of Common Stock such stockholder holds as determined pursuant to this Agreement, without any interest thereon. (g) None of Purchaser, the Company, the Surviving Corporation, the Paying Agent or any other person shall be liable to any former holder of shares of Common Stock for any amount of the Exchange Fund properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. (h) If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (i) Except as otherwise provided herein or in the letter of transmittal referred to in Section SECTION 5.3(b), Purchaser shall pay all charges and expenses (but -------------- excluding income income, withholding and withholding any stock transfer taxes), including those of the Paying Agent, in connection with the exchange of the Merger Consideration for Certificates. (j) Purchaser shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Common Stock, Stock or Options (as defined below) or Warrants such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "CodeCODE"), or any provision of applicable state, local or foreign tax ---- law. To the 11 extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made.

Exchange of Certificates Representing Shares of Common Stock. (a) Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust company, which shall be reasonably satisfactory to the Company, to act as paying agent hereunder (the "Paying Agent") for payment of the Merger ------------ Consideration upon surrender of a certificate or certificates (each, a "Certificate") representing shares of Common Stock. Prior to or concurrently ----------- with the Effective Time, Purchaser shall cause Merger Sub or the Surviving Corporation, as the case may be, to deposit, in trust for the benefit of the holders of Certificates, with provide the Paying Agent with cash in an amount necessary to pay for all the shares of Common Stock pursuant to Section 5.2(b). Such amounts -------------- shall hereinafter be referred to as the "Exchange Fund." -------------" (b) Promptly after the Effective Time, Purchaser shall cause the Paying Agent to mail to each holder of record of shares of Common Stock (i) a letter of transmittal that shall specify that delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, which letter shall be in such form and have such other provisions as Purchaser may reasonably specify and (ii) instructions for effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall promptly receive in exchange therefor the amount of cash into which shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 5.2, and the shares represented by the Certificate so surrendered ----------- shall forthwith be canceled. No interest will be paid or will accrue on the cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment may be made with respect to such Common Stock to such a transferee if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. (c) As of the Effective Time, all shares of Common Stock (other than shares of Common Stock to be canceled and retired in accordance with Section ------- 5.2 (a5.2(a) and any shares of Dissenting Common Stock) issued and outstanding ------ immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto or arising therefrom (including, without limitation, the right to vote), except the right to receive the Merger Consideration, without interest, upon surrender of the Certificate representing such shares in accordance with Section 5.3(b), and -------------- until so surrendered, the Certificate representing such shares shall represent for all purposes only the right to receive the Merger Consideration, without interest. The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Section 5.3 shall be deemed to ----------- have been paid in full satisfaction of all rights pertaining to the shares of Common Stock theretofore represented by such Certificates. (d) At or after the Effective Time, there shall be no transfers recorded on the stock transfer books of the Company of the shares of Common Stock that were outstanding immediately prior to the Effective Time (other than transfers, consistent with standard settlement procedures, to reflect transactions in shares of Common Stock that occurred in the open market prior to the Effective Time). If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 5. ---------. (e) The Paying Agent shall invest the Exchange Fund Fund, as directed by Purchaser, in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper rated the highest quality by either Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation or (iv) certificates of deposit, bank repurchase agreements or bankers' acceptances of commercial banks with capital exceeding $500 million. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Purchaser as and when requested by Purchaser; provided, however, that any such investment or any such payment of earnings may -------- ------- not delay the receipt by holders of Certificates of any Merger Consideration. (f) Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of all such funds) that remains unclaimed by the former stockholders of the Company 180 days one year after the Effective Time shall be delivered to the Surviving Corporation. Any holder holders of Certificates who has have not theretofore complied with this Article 5 shall thereafter look only to the Surviving --------- Corporation for payment of any Merger Consideration that may be payable in respect of each share of Common Stock such stockholder holds as determined pursuant to this Agreement, without any interest thereon. (g) None of Purchaser, the Company, the Surviving Corporation, the Paying Agent or any other person shall be liable to any former holder of shares of Common Stock for any amount of the Exchange Fund properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. (h) If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (i) Except as otherwise provided herein or in the letter of transmittal referred to in Section 5.3(b), Purchaser shall pay all charges and expenses (but -------------- excluding income income, withholding and withholding any stock transfer taxes), including those of the Paying Agent, in connection with the exchange of the Merger Consideration for Certificates. (j) Purchaser shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Common Stock, Stock or Options (as defined below) or Warrants such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of applicable state, local or foreign tax ---- law. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made.