Common use of Surrender and Payment Clause in Contracts

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably satisfactory to the Company (the “EXCHANGE AGENT”) for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of Shares immediately prior to the Effective Time a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent). (b) Each holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates formerly representing such Shares, together with a properly completed letter of transmittal covering such Shares, will be entitled to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Merger Consideration. No interest will be paid or will accrue on such Merger Consideration. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate or certificates, it shall be a condition to such payment that the certificate or certificates 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 Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Shares or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. For purposes of this Agreement, “PERSON” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4)Effective Time, Parent shall appoint an agent a bank or trust reasonably satisfactory acceptable to the Company (the “EXCHANGE AGENTPaying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares for(the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”), and distributing to holders Parent or one of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or its Affiliates shall cause Merger Sub to, make available to the Exchange Paying Agent, for the benefit of the holders of Shares, cash in immediately available dollar-denominated funds in the amounts and at the times necessary for the Paying Agent to make the payments contemplated by ‎Section 2.02(a) (such cash, the “Exchange Fund”). The Paying Agent shall invest the Exchange Fund as soon dictated by Parent; provided that such investment shall only be made 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 Mxxxx’x Investor Services, Inc. or Standard and Poor’s Rating Services, or (iv) money market funds investing solely in a combination of the foregoing. Any interest or income earned on the Exchange Fund, and any amounts in the Exchange Fund in excess of the amounts payable under ‎Section 2.02(a), shall be promptly paid to Parent or as reasonably practicable as of or Parent otherwise directs. (b) Promptly (and in any event within three Business Days) after the Effective Time, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will shall cause the Exchange Paying Agent to send, to each holder of Shares immediately prior to at the Effective Time a letter of transmittal for use in such exchange and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent). (b) for use in such exchange. Each holder of Shares that have been converted into a the right to receive the Merger ConsiderationConsideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a certificate or certificates formerly representing such SharesCertificate, together with a properly completed letter of transmittal covering transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, will be entitled to receive the aggregate Merger Consideration payable in respect of such Sharesfor each Share represented by a Certificate or for each Uncertificated Share. Until so surrendered and except or transferred, as otherwise set forth in Section 2.3the case may be, each such certificate shall, Certificate or Uncertificated Share shall represent after the Effective Time, represent Time for all purposes, purposes only the right to receive such Merger Consideration. No interest will be paid or will accrue on such the Merger Consideration. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate Person in whose name the surrendered Certificate or certificatesthe transferred Uncertificated Share is registered, it shall be a condition to such payment that the certificate or certificates so surrendered (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and that (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Shares Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not payable. For purposes . (d) The Merger Consideration paid in accordance with the terms of this Agreement‎ARTICLE 2 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by the applicable Certificates or Uncertificated Shares. After the Effective Time, “PERSON” means an individualthere shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this ‎ARTICLE 2. (e) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 12 months after the Effective Time shall be returned to Parent or one of its Affiliates, upon demand, and any such holder who has not exchanged its Shares for the Merger Consideration in accordance with this ‎Section 2.03 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration in respect of such Shares without any interest thereon. Any amounts remaining unclaimed by holders of Shares two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by Applicable Law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto. None of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Paying Agent shall be liable to any person for any Merger Consideration delivered to a corporationpublic official pursuant to any abandoned property, a limited liability company, a partnership, an association, a trust escheat or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereofsimilar Applicable Law.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4)Effective Time, Parent shall appoint enter into an agreement (in a form reasonably acceptable to the Company) with an agent selected by Parent (that is reasonably satisfactory to the Company Company) (the “EXCHANGE AGENTPaying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares for, and distributing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). At or prior to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, Parent shall deposit (ior cause to be deposited) except as set forth in cash with the next sentence of this Section 2.2(a), certificates representing Paying Agent the Merger Consideration issuable to be paid in respect of all shares of Company Stock issued and outstanding prior to the Effective Time (other than Owned Shares and Dissenting Shares) entitled to payment pursuant to Section 2.1(c2.02(b) in exchange for outstanding Shares(collectively, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant“Aggregate Merger Consideration”). For the avoidance of doubt, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds such amounts on deposit with the Paying Agent shall not be used by the Exchange Agent for any purpose other purposethan to fund payments due pursuant to Section 2.02(b). Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be The Aggregate Merger Consideration deposited with the Exchange Paying Agent but shall, pending its disbursement to such holders, be invested by the Paying Agent as directed by Parent; provided that such investments shall instead be deposited in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment grade granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Escrow Paying Agent (will be payable to Parent or as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Sharesotherwise directs. Promptly after the Effective Time and in any event not later than the third Business Day following the Effective Time, the Surviving Corporation will Parent shall send, or will shall cause the Exchange Paying Agent to send, to each holder of shares of Company Stock (other than Owned Shares immediately prior to and Dissenting Shares) at the Effective Time a letter of transmittal for use in such exchange customary form and instructions (which shall specify that the delivery shall be effected, and risk of loss and title with respect to any Certificates shall pass, only upon proper delivery of the certificates representing Shares Certificates to the Exchange Paying Agent)) for use in such exchange. (b) Each holder of shares of Company Stock (other than Owned Shares and Dissenting Shares) that have been converted into a the right to receive the Merger ConsiderationConsideration shall be entitled to receive, (i) upon surrender to the Exchange Paying Agent of a certificate or certificates formerly representing such SharesCertificate, together with a properly completed letter of transmittal covering or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, will be entitled the Merger Consideration payable for each share of Company Stock (other than Owned Shares and Dissenting Shares) represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in thereof pursuant to Section 2.3, each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Merger Consideration. No interest will be paid or will accrue on such Merger Consideration2.02. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate Person in whose name the surrendered Certificate or certificatesthe transferred Uncertificated Share is registered, it shall be a condition to such payment that the certificate or certificates so surrendered (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and that (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Shares Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not payable. (d) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. For purposes If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article 2. (e) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Company Stock one year after the Effective Time shall be returned to the Surviving Corporation, and any such holder who has not exchanged such shares of Company Stock for the Merger Consideration in accordance with this AgreementSection 2.03 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration in respect of such shares without any interest thereon. Notwithstanding the foregoing, “PERSON” means an individualParent shall not be liable to any holder of shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, a corporationescheat or similar laws. Any amounts remaining unclaimed by holders of shares of Company Stock immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, a limited liability companyto the extent permitted by Applicable Law, a partnershipthe property of the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto. (f) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.03(a) to pay for Dissenting Shares for which appraisal rights have been perfected shall be returned to the Surviving Corporation, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereofupon demand.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4)Effective Time, Parent shall appoint an agent a bank or trust reasonably satisfactory acceptable to the Company (the “EXCHANGE AGENTPaying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares for(the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”), and distributing to holders Parent or one of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or its Affiliates shall cause Merger Sub to, make available to the Exchange Paying Agent, for the benefit of the holders of Shares, cash in immediately available dollar-denominated funds in the amounts and at the times necessary for the Paying Agent to make the payments contemplated by Section 2.02(a) (such cash, the “Exchange Fund”). The Paying Agent shall invest the Exchange Fund as soon dictated by Parent; provided that such investment shall only be made 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 Investor Services, Inc. or Standard and Poor’s Rating Services, or (iv) money market funds investing solely in a combination of the foregoing. Any interest or income earned on the Exchange Fund, and any amounts in the Exchange Fund in excess of the amounts payable under Section 2.02(a), shall be promptly paid to Parent or as reasonably practicable as of or Parent otherwise directs. (b) Promptly (and in any event within three Business Days) after the Effective Time, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will shall cause the Exchange Paying Agent to send, to each holder of Shares immediately prior to at the Effective Time a letter of transmittal for use in such exchange and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent). (b) for use in such exchange. Each holder of Shares that have been converted into a the right to receive the Merger ConsiderationConsideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a certificate or certificates formerly representing such SharesCertificate, together with a properly completed letter of transmittal covering transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, will be entitled to receive the aggregate Merger Consideration payable in respect of such Sharesfor each Share represented by a Certificate or for each Uncertificated Share. Until so surrendered and except or transferred, as otherwise set forth in Section 2.3the case may be, each such certificate shall, Certificate or Uncertificated Share shall represent after the Effective Time, represent Time for all purposes, purposes only the right to receive such Merger Consideration. No interest will be paid or will accrue on such the Merger Consideration. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate Person in whose name the surrendered Certificate or certificatesthe transferred Uncertificated Share is registered, it shall be a condition to such payment that the certificate or certificates so surrendered (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and that (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Shares Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not payable. For purposes . (d) The Merger Consideration paid in accordance with the terms of this AgreementARTICLE 2 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by the applicable Certificates or Uncertificated Shares. After the Effective Time, “PERSON” means an individualthere shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this ARTICLE 2. (e) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 12 months after the Effective Time shall be returned to Parent or one of its Affiliates, upon demand, and any such holder who has not exchanged its Shares for the Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration in respect of such Shares without any interest thereon. Any amounts remaining unclaimed by holders of Shares two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by Applicable Law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto. None of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Paying Agent shall be liable to any person for any Merger Consideration delivered to a corporationpublic official pursuant to any abandoned property, a limited liability company, a partnership, an association, a trust escheat or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereofsimilar Applicable Law.

Surrender and Payment. (a) Prior to the mailing Effective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the “Disbursing Agent”) for the payment of Per-Share Merger Consideration upon surrender of certificates representing the Proxy Statement (Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as defined in the Disbursing Agent requires funds to make the payments pursuant to Section 4.42.7(b), Parent shall appoint an agent reasonably satisfactory deposit or cause to the Company (the “EXCHANGE AGENT”) for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Disbursing Agent but shall instead be deposited with cash in an aggregate amount necessary to make the Escrow Agent (as defined in payments pursuant to Section 2.52.7(b) and (y) the shares to holders of Parent Common Stock comprising the Option Tax Shares (such amounts being hereinafter referred to as defined in Section 2.6(b) shall not be deposited with the “Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)Fund”). For purposes of determining the aggregate Merger Consideration amount to be made available to the Exchange Agentso deposited, Parent shall assume that no holder stockholder of the Company will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (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, or (iii) commercial paper rated the highest quality by either Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares will perfect appraisal rights with respect pursuant to Section 2.7(b). Any interest and other income resulting from such Sharesinvestment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 2.7(b) shall be promptly paid to Parent. Promptly Parent shall promptly replenish the Exchange Fund to the extent of any investment losses. The Exchange Fund shall not be used for any other purpose. (b) Parent and the Surviving Corporation shall instruct the Disbursing Agent to mail promptly after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, Time to each Person who was a record holder as of Shares the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the “Certificates”) or non-certificated Shares represented by book-entry (“Book-Entry Shares”), and whose Shares were converted into the right to receive Per-Share Merger Consideration pursuant to Section 2.7(b), a form of letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the certificates representing Certificates or Book-Entry Shares to the Exchange Disbursing Agent). (b) Each holder and instructions for use in effecting the surrender of the Certificates or Book-Entry Shares that have been converted into a right to receive in exchange for payment of the Per-Share Merger Consideration, upon . Upon surrender of a Certificate or transfer of a Book-Entry Share to the Exchange Disbursing Agent of a certificate or certificates formerly representing such Sharesfor cancellation, together with a properly completed such letter of transmittal covering duly executed and such Sharesother documents as may be reasonably required by the Disbursing Agent, will the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the aggregate Per-Share Merger Consideration payable in respect of that Certificate or Book-Entry Share, less any required withholding of Taxes, and such Shares. Until Certificate or Book-Entry Share so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Merger Considerationshall forthwith be canceled. No interest will be paid or will accrue accrued on such Merger Considerationthe cash payable upon the surrender of the Certificates or Book-Entry Shares. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash If payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid made to a Person (as defined below) other than the registered holder of such certificate or certificatesPerson in whose name the Certificate surrendered is registered, it shall be a condition to such of payment that the certificate or certificates Certificate 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 Exchange Agent any transfer or other taxes Taxes required as a result by reason of such the payment to a Person other than the registered holder of such Shares the Certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax Tax has been paid or is not payableapplicable. For purposes Payment of the Per-Share Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. (d) Until surrendered in accordance with the provisions of this Section 2.8, each Certificate or Book-Entry Share (other than Certificates representing Shares or Book-Entry Shares owned by Parent, Merger Subsidiary or any other wholly-owned Subsidiary of Parent, Shares held by the Company or a wholly-owned Subsidiary of the Company and Dissenting Shares) shall represent for all purposes, from and after the Effective Time, only the right to receive the Per-Share Merger Consideration. (e) At and after the Effective Time, there shall be no registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Per-Share Merger Consideration paid upon the surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates or Book-Entry Shares, as applicable. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, such Certificates or Book-Entry Shares shall represent the right to receive the Per-Share Merger Consideration as provided in this Article II. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be closed. (f) Any portion of the Per-Share Merger Consideration made available to the Disbursing Agent to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand by Parent. At any time more than twelve (12) months after the Effective Time, the Disbursing Agent shall upon demand of Parent deliver to Parent any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates or Book-Entry Shares (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of Certificates or Book-Entry Shares shall look only to the Surviving Corporation (subject to the terms of this Agreement, “PERSON” means an individualabandoned property, escheat and other similar Laws) as general creditors thereof with respect to any Per-Share Merger Consideration that may be payable, without interest, upon due surrender of the Certificates or Book-Entry Shares held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of any governmental unit or agency, shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a corporationCertificate or a Book-Entry Share for any Per-Share Merger Consideration delivered in respect of such Certificate or Book-Entry Share to a public official pursuant to any abandoned property, a limited liability company, a partnership, an association, a trust escheat or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereofsimilar Law.

Surrender and Payment. (a) The Parties agree that American Stock Transfer and Trust Company shall act as exchange agent hereunder (the “Exchange Agent”) with respect to the Merger. Back to Contents (b) Prior to the mailing Effective Time, the Company shall appoint the Exchange Agent to effect the issuance of the Proxy Statement (as defined Merger Shares in Section 4.4), Parent shall appoint an agent reasonably satisfactory exchange for the certificates that immediately prior to the Company Effective Time represented outstanding PolyMedix Common Stock or PolyMedix Preferred Stock (the “EXCHANGE AGENTStock Certificates”) for ). On the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the WarrantClosing Date, the Merger Consideration. Parent shall, or Company shall cause Merger Sub to, make available deliver to the Exchange Agent, as soon as reasonably practicable as in trust for the benefit of or after holders of the Effective TimeStock Certificates, a stock certificate (i) except as set forth issued in the next sentence name of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (xor its nominee) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect issuable to such Sharesholders pursuant to Sections 3.1(b) and 3.5. Promptly after the Effective Time, the Surviving Corporation will sendbut in any event not later than five (5) business days thereafter, or will cause the Exchange Agent to send, shall send to each holder of a Stock Certificate a letter of transmittal and instructions for use in effecting the exchange of the Stock Certificate(s) for stock certificate(s) representing the applicable Merger Shares issuable to such holder pursuant to Sections 3.1(b) and 3.5. Provision also shall be made for holders of the Stock Certificates to procure in person immediately prior to after the Effective Time a letter of transmittal and instructions and to deliver in person immediately after the Effective Time such letter of transmittal and Stock Certificates in exchange for use in such exchange the applicable Merger Shares. (which c) After the Effective Time, the Stock Certificates shall specify that represent the delivery shall be effectedright, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Shares surrender thereof to the Exchange Agent). (b) Each holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates formerly representing such Shares, together with a duly executed and properly completed letter of transmittal covering such Sharesrelating thereto, will be entitled to receive in exchange therefor the aggregate applicable Merger Consideration payable in respect of such SharesShares subject to any required Tax withholding, and the Stock Certificates so surrendered shall be canceled. Until so surrendered and except as otherwise set forth in Section 2.3surrendered, each such certificate Stock Certificate (other than Dissenting Shares) shall, after the Effective Time, represent for all purposes, purposes only the right to receive such the applicable Merger ConsiderationShares. No interest will Notwithstanding the foregoing, upon surrender of a Stock Certificate, the holder thereof shall be paid entitled to any dividends or will accrue on such Merger Consideration. (c) No certificate or scrip representing fractional shares other distributions that are payable to the holders of Parent record of Company Common Stock as of a date on or after the Effective Time and the time of such surrender; provided, that, no such Person shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by any interest on such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) dividends or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole centother distributions. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent If any shares of Company Common Stock with a record date after the Effective Time shall be paid are to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate or certificatesthe Stock Certificate surrendered in exchange therefore, it shall be a condition to such issuance or payment that the certificate or certificates so Stock Certificate surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment issuance shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment issuance to a Person other than the registered holder of such Shares or establish to the satisfaction of the Exchange Agent that such tax Tax has been paid or is not payableapplicable. (e) Any Merger Shares that remains unclaimed by the holders of PolyMedix Common Stock or PolyMedix Preferred Stock one (1) year after the Effective Time shall be returned to the Company, upon demand, and any such holder who has not exchanged such holder’s Stock Certificates in accordance with this Section 3.3 prior to that time shall thereafter look only to the Company, as a general creditor thereof, to exchange such Stock Certificates or to pay amounts to which such holder is entitled pursuant to this Article III. For purposes If Stock Certificates are not surrendered prior to six (6) years after the Effective Time (or, in any particular case, prior to such earlier date on which any Merger Shares issuable or payable in respect of such Stock Certificates would otherwise escheat to or become the property of any governmental unit or agency), the Merger Shares issuable or payable in respect of such Stock Certificates shall, to the extent permitted by applicable law, become the property of the Company, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of the Parties hereto shall be liable to any holder of Stock Certificates for any amount paid, or Merger Shares delivered, to a public official pursuant to applicable abandoned property, escheat or similar laws. Back to Contents (f) If any Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Stock Certificate to be lost, stolen or destroyed and, if required by the Company, the posting by such Person of a bond in such reasonable amount as the Company may direct as indemnity against any claim that may be made against it with respect to such Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Stock Certificate the Merger Shares in respect thereof pursuant to this Agreement, “PERSON” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably satisfactory to the Company (the “EXCHANGE AGENT”"Exchange Agent") for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of Shares immediately prior to the Effective Time a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent). (b) Each holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates formerly representing such Shares, together with a properly completed letter of transmittal covering such Shares, will be entitled to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Merger Consideration. No interest will be paid or will accrue on such Merger Consideration. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“"NASDAQ”") (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate or certificates, it shall be a condition to such payment that the certificate or certificates 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 Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Shares or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. For purposes of this Agreement, “PERSON” "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4)Effective Time, Parent shall appoint an agent reasonably satisfactory acceptable to the Company (the “EXCHANGE AGENTExchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares forshares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). At or immediately following the Effective Time, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing Agent the Merger Consideration issuable pursuant to Section 2.1(c) be paid in exchange for outstanding respect of the Certificates and the Uncertificated Shares; provided, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds that Parent shall not be used required to make available to the Exchange Agent any Merger Consideration for Dissenting Shares or to the extent that the Company has made available any amounts in accordance with Section 8.03(i). Such funds may be invested by the Exchange Agent for as directed by Parent; provided, that (i) no such investment or losses thereon shall affect the Merger Consideration payable hereunder and following any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of such losses Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with promptly provide additional funds to the Exchange Agent but shall instead be deposited with for the Escrow Agent (as defined benefit of the stockholders of the Company in Section 2.5) the amount of any such losses and (yii) such investments shall only be in short-term obligations of the shares United States of Parent Common Stock comprising America with maturities of no more than thirty (30) days or guaranteed by the Option Tax Shares (as defined United States of America and backed by the full faith and credit of the United States of America or in Section 2.6(b) shall not commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest or income produced by such investments will be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available payable to the Exchange AgentSurviving Corporation or Parent, as Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Sharesdirects. Promptly after the Effective TimeTime (but not later than three (3) Business Days thereafter), the Surviving Corporation will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of Shares immediately prior to shares of Company Stock at the Effective Time a letter of transmittal for use in such exchange and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Certificates or transfer of the Uncertificated Shares to the Exchange Agent)) for use in such exchange. (b) Each holder of Shares that have been converted into a Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration, Consideration upon (i) surrender to the Exchange Agent of a certificate or certificates formerly representing such SharesCertificate, together with a properly completed letter of transmittal covering transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, will be entitled to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Merger Consideration. No interest will be paid Company Stock represented by a Certificate or will accrue on such Merger ConsiderationUncertificated Share. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate Person in whose name the surrendered Certificate or certificatesthe transferred Uncertificated Share is registered, it shall be a condition to such payment that the certificate or certificates so surrendered (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and that (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Shares Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax Tax has been paid or is not payable. (d) After the closing of business on the day on which the Effective Time occurs, there shall be no further registration of transfers of shares of Company Stock. For purposes If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2. (e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Company Stock nine (9) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this AgreementSection 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such shares without any interest thereon. (f) Notwithstanding the foregoing, “PERSON” means an individualnone of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Stock for any amounts paid to a corporationpublic official pursuant to applicable abandoned property, a limited liability companyescheat or similar laws. If any Certificates shall not have been surrendered prior to four (4) years after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority), a partnershipany shares of Company Stock represented by such Certificates shall, an associationto the extent permitted by Applicable Law, a trust become the property of Parent, free and clear of all claims or interest of any other entity or organization, including a government or political subdivision or any agency or instrumentality thereofPerson previously entitled thereto.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4)Effective Time, Parent shall will appoint an agent a bank or trust company reasonably satisfactory acceptable to the Company (the “EXCHANGE AGENT”"Exchange Agent") for the -------------- purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger ConsiderationCommon Stock Certificates. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after Immediately following the Effective Time, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds Parent shall not be used by deposit with the Exchange Agent for any other purpose. Notwithstanding the second sentence benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Section 2.2(a)Article III, (x) through the ----------- Exchange Agent, certificates representing the shares of Parent Common Stock comprising issuable pursuant to Article III in exchange for outstanding shares of Company ----------- Common Stock together with amounts sufficient in the Escrow Amount (as defined in Section 2.5) shall not be deposited with aggregate to provide all funds necessary for the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined to make payments in lieu of fractional shares pursuant to Section 2.53.2(e) and any dividend payments pursuant to Section ------- 3.2(d) (y) the such shares of Parent Common Stock comprising and funds, together with any ------ dividends or distributions with respect thereto with a record date after the Option Tax Shares (Effective Time, being hereinafter referred to as defined in Section 2.6(b) shall not be deposited with the "Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)Fund"). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly ------------- (b) As soon as reasonably practicable after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, shall mail to each holder of Shares record of Common Stock Certificates(s) which immediately prior to the Effective Time represented outstanding shares of Company Common Stock, other than shares to be canceled or retired in accordance with Section 3.1(e), (i) a letter of transmittal for use in such exchange (which ------ shall specify that the delivery shall be effected, and risk of loss and title to the Common Stock Certificates shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent). (b) Each holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender Common Stock Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of the Common Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a certificate Common Stock Certificate for cancellation to the Exchange Agent or certificates formerly representing to such Sharesother agent or agents as may be appointed by Parent, together with a properly completed such letter of transmittal covering transmittal, duly executed, and such Sharesother documents as may reasonably be required by the Exchange Agent, will the holder of such Common Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock which such holder has the aggregate Merger Consideration payable right to receive pursuant to the provisions of this Article III, and the Common ----------- Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Common Stock which is not registered in respect the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a Person other than the Person in whose name the Common Stock Certificate so surrendered is registered, if such Common Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or other taxes required by reason of the issuance of shares of Parent Common Stock to a Person other than the registered holder of such SharesCommon Stock Certificate or establish to the satisfaction of Parent that such tax has been paid or is not applicable. Until so surrendered and except as otherwise set forth in contemplated by this Section 2.3------- 3.2(b), each such certificate shall, Common Stock Certificate shall be deemed at any time after the ------ Effective Time, Time to represent for all purposes, only the right to receive upon such Merger Considerationsurrender the certificate representing the appropriate number of whole shares of Parent Common Stock, cash in lieu of any fractional shares of Parent Common Stock and any dividends to the extent provided in Section 3.2(d) as contemplated by this -------------- Section 3.2(b). No interest will be paid or will accrue on such Merger Consideration. (c) No certificate or scrip representing any cash payable in -------------- lieu of any fractional shares of Parent Common Stock shall be or any dividend to the extent provided in Section 3.2(d). -------------- (c) All shares of Parent Common Stock issued upon the surrender for exchange of certificates formerly representing SharesCommon Stock Certificates in accordance with the terms of this Article III (including any cash issued in lieu of fractional shares) shall be ----------- deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Common Stock Certificates. At and after the Effective Time, or in exchange for In-The-Money Options or upon conversion the stock transfer books of the Warrant (as defined below)Company will be closed, and such fractional share interests shall not entitle there will be no further registration of transfers of shares of the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Company Common Stock pursuant or the Series "A" Preferred Stock outstanding prior to this Agreement (the Effective Time. If, at or after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby)Effective Time, (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down Certificates are presented to the nearest whole cent.Surviving Corporation, they will be canceled and exchanged in accordance with this Article III. ----------- (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares Common Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c3.2(e) until the holder of record -------------- surrender of such certificate shall surrender such certificateCommon Stock Certificate in accordance with this Article III. ----------- Subject to the effect of applicable laws, following surrender of any such certificateCommon Stock Certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and therefor, without interest, (Bi) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c3.2(e) and the amount of dividends or -------------- other distributions with a record date after the Effective Time previously theretofore paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having with a record date after the Effective Time time but prior to such surrender and a payment date subsequent to such surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of the Common Stock Certificates. Each holder of Company Common Stock issued and outstanding at the Effective Time which would otherwise be entitled to receive a fractional share of Parent Common Stock upon surrender of the Common Stock Certificates for exchange pursuant to this Article III (after taking into account all shares of ----------- Company Common Stock then held by such holder) shall receive, in lieu thereof, cash in an amount equal to the value of such fractional share, which shall be equal to the fraction of a share of Parent Common Stock that would otherwise be issued multiplied by the Average Price. (f) Any portion of the aggregate Merger Consideration payable Exchange Fund which remains undistributed to the holders of Common Stock Certificates for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of Common Stock Certificates who have not theretofore complied with this Article III shall ----------- thereafter look only to Parent (as unsecured general creditors thereof) for payment of their claim for Parent Common Stock, any cash in lieu of fractional shares of Parent Common Stock and any dividends or distributions with respect to Parent Common Stock. (g) None of Parent, Magellan, the Company or the Exchange Agent shall be liable to any Person in respect of any shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a certificate public official pursuant to any applicable abandoned property, escheat or certificates formerly representing Shares is to similar law. (h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to a Person Parent. (as defined belowi) other than Surviving Corporation shall be entitled to deduct and withhold from the registered Common Stock Merger Consideration otherwise payable pursuant to this Agreement to any holder of the Common Stock Certificates such certificate amounts as it is required by regulations to deduct and withhold with respect to the making of such payment under the Code, or certificatesany provision of state, it local or foreign law. To the extent that amounts are so withheld by Surviving Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made. (j) If any Common Stock Certificate is lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Common Stock Certificate to be lost, stolen, or destroyed and, if required by Parent, the posting by such Person of a condition bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against it with respect to such payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to Common Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Common Stock Certificate the Parent Common Stock, and any transfer cash in lieu of fractional shares and any unpaid dividends or other taxes required as a result of such payment to a Person other than the registered holder of such Shares or establish distributions with respect to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. For purposes of this AgreementParent Common Stock, “PERSON” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereofto which they are entitled pursuant hereto.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4)First Effective Time, Parent and Bidco shall appoint an agent a commercial bank or trust company reasonably satisfactory acceptable to the Company (the “EXCHANGE AGENTExchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging certificates representing (i) Certificates or (ii) Uncertificated Shares forfor the Merger Consideration payable in respect of the shares of Company Common Stock. As of the First Effective Time, in consideration of and distributing in exchange for the issuance to holders Parent by Bidco of Inninety-The-Money Options five (95) shares of common stock of Bidco and the WarrantCancellation, Parent shall (i) allot American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the Merger ConsiderationParent ADSs issuable pursuant to Section 2.03(a), (ii) pay the cash amount payable pursuant to Section 2.03(a) in accordance with the terms of Section 2.03(a) and the following provisions of this Section 2.06(a) and (iii) cause the payment of any Vested Option Consideration or Vested Award Consideration (as applicable) in accordance with the terms of Section 2.08. As of the First Effective Time, Parent shall, shall deposit or shall cause Merger Sub to, make available to be deposited with the Exchange Agent, as soon as reasonably practicable as for the benefit of or after the Effective Timeholders of shares of Company Common Stock, for exchange in accordance with this Section 2.06 through the Exchange Agent, (ix) except as set forth American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the next sentence of this Section 2.2(a), certificates representing the Merger Consideration Parent ADSs issuable pursuant to Section 2.1(c2.03(a) in exchange for outstanding Shares, shares of Company Common Stock and (y) cash sufficient to pay the aggregate cash amount payable pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant 2.03(a). Parent agrees to Section 2.4(b) in exchange for make available, directly or indirectly, to the Warrant, (ii) Exchange Agent from time to time as needed additional cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) pay any dividends or other distributions to which such holders of certificates may be are entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.52.06(f) and (y) the shares cash in lieu of any fractional Parent Common Stock comprising the Option Tax Shares (ADSs to which such holder is entitled pursuant to Section 2.10, as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Sharesapplicable. Promptly after the First Effective TimeTime (and in no event more than two Business Days following the Closing Date), the Surviving Corporation will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of Shares shares of Company Common Stock as of immediately prior to the First Effective Time a letter of transmittal for use and instructions (which shall be in such exchange (a form reasonably acceptable to the Company and substantially finalized prior to the First Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon on proper delivery of the certificates representing Certificates or transfer of the Uncertificated Shares to the Exchange Agent)) for use in such exchange. All certificates (or evidence of Parent ADSs in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be referred to in this Agreement as the “Exchange Fund”. Parent shall cause, or shall procure that Bidco cause, the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent or Bidco; provided, that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests and, to the extent necessary to pay the Merger Consideration, Parent shall promptly cause, or shall procure that Bidco cause, to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent on termination of the Exchange Fund. (b) Each holder of Shares shares of Company Common Stock that have been converted into a the right to receive the Merger ConsiderationConsideration shall be entitled to receive, upon on (i) surrender to the Exchange Agent of a certificate or certificates formerly representing such SharesCertificate, together with a properly completed and duly executed letter of transmittal covering transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, will be entitled to receive (A) the aggregate Merger Consideration payable in respect of each share of the Company Common Stock represented by such SharesCertificate or Uncertificated Share and (B) cash in lieu of any fractional Parent ADSs and any dividends and distributions as contemplated by Section 2.06(f) and Section 2.10, as applicable. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after The Parent ADSs constituting any of the Effective Time, represent for all purposes, only the right to receive such Merger Consideration. No interest will , at Parent’s option, shall be paid or will accrue on in uncertificated book-entry form, unless a physical American depository receipt evidencing such Merger ConsiderationParent ADSs is required under Applicable Law. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate (or certificates formerly representing Shares cash in lieu of any fractional Parent ADSs or any dividends and distributions as contemplated by Section 2.06(f) and Section 2.10, as applicable) is to be paid to a Person (as defined below) other than the registered holder of such certificate Person in whose name the surrendered Certificate or certificatesthe transferred Uncertificated Share is registered, it shall be a condition to such payment that the certificate or certificates so surrendered (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and that (ii) the Person requesting such payment shall pay to the Exchange Agent any stamp duty, stamp duty reserve tax, transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Shares Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax has stamp duty, stamp duty reserve tax, transfer or similar Taxes have been paid or is are not payable. (d) From and after the First Effective Time, there shall be no further registration of transfers of shares of Company Common Stock thereafter on the records of the Company. For purposes If, after the First Effective Time, Certificates or Uncertificated Shares are presented to Parent, the First Surviving Corporation, the Surviving Company or the Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration (and cash in lieu of any fractional Parent ADSs and any dividends and distributions as contemplated by Section 2.06(f) and Section 2.10, as applicable) with respect thereto in accordance with the procedures set forth in, or as otherwise contemplated by, this AgreementArticle II (including this Section 2.06). (e) Any portion of the Exchange Fund that remains unclaimed by the holders of shares of Company Common Stock 12 months following the Closing Date shall be delivered to Parent or as otherwise instructed by Parent, “PERSON” means an individualand any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.05 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration (and cash in lieu of any fractional Parent ADSs and any dividends and distributions as contemplated by Section 2.06(f) and Section 2.10, as applicable), without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including Bidco, the Surviving Company and its Subsidiaries) shall not be liable to any holder of shares of Company Common Stock for any amounts properly paid to a corporationpublic official in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto. (f) Following the surrender of any Certificates, along with the delivery of a limited liability companyproperly completed and duly executed letter of transmittal, or the transfer of any Uncertificated Shares, in each case as provided in this Section 2.06, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the Parent ADSs constituting all or part of the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, (x) the amount of any cash payable in lieu of fractional amounts of Parent ADSs to which such Person is entitled pursuant to Section 2.10, and (y) the aggregate amount of all dividends or other distributions payable with respect to such Parent ADSs, with a partnershiprecord date on or after the First Effective Time that were paid prior to the time of such surrender or transfer, an associationand (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole Parent ADSs constituting all or part of the Merger Consideration with a trust record date on or after the First Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to Parent ADSs constituting all or part of the Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.10, shall be paid to the holder of any other entity Certificates not surrendered or organizationof any Uncertificated Shares not transferred until such Certificates are surrendered and the holder thereof delivers a properly completed and duly executed letter of transmittal or such Uncertificated Shares are transferred, including a government or political subdivision or any agency or instrumentality thereofas the case may be, as provided in this Section 2.06.

Surrender and Payment. (a) Prior to the mailing of the Proxy Statement (as defined in Section 4.4)Effective Time, Parent shall appoint appoint, with the Company’s prior approval (such approval not to be unreasonably withheld or delayed), an agent reasonably satisfactory to the Company (the “EXCHANGE AGENTExchange Agent”) for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, for the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, Consideration (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing shares of Company Stock (the Merger Consideration issuable pursuant to Section 2.1(c“Certificates”) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, or (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the uncertificated shares of Company Stock (the “Uncertificated Shares”). At or prior to the Closing, Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not deposit or cause to be deposited with the Exchange Agent but shall instead be deposited with an amount in cash in immediately available funds (the Escrow Agent (as defined in Section 2.5“Exchange Fund”) and (y) the shares of Parent Common Stock comprising the Option Tax Shares (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining equal to the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares, excluding (i) shares of Company Stock outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has demanded appraisal for such shares in accordance with Delaware Law (each such share, a “Dissenting Share”) and (ii) shares held by the Company and by Parent. If a holder of Dissenting Shares fails to perfect, withdraws or otherwise loses the right to appraisal pursuant to Section 262 of the Delaware Law with respect to any Dissenting Shares, (i) such shares of Company Stock shall cease to be Dissenting Shares and (ii) Parent shall make available or cause to be made available to the Exchange AgentAgent additional funds in an amount equal to the product of (x) the number of Dissenting Shares for which the holder thereof has failed to perfect, Parent withdrawn or otherwise lost the right to appraisal pursuant to Section 262 of the Delaware Law and (y) the Merger Consideration. The Exchange Agent shall assume invest the Exchange Fund as directed by Parent; provided that no holder such investments shall be in obligations of Shares will perfect appraisal rights or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of investment. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the aggregate amounts payable under Section 2.02(a) shall be returned to the Surviving Corporation in accordance with Section 2.03(g). To the extent that there are any losses with respect to any such Shares. investments, or the Exchange Fund diminishes for any reason below the level required for the Exchange Agent to make prompt cash payment under Section 2.02(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Exchange Agent to make such payments under Section 2.02(a). (b) Promptly after the Effective TimeTime (and in any event within five Business Days), the Surviving Corporation will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of Shares immediately prior to shares of Company Stock at the Effective Time a letter of transmittal for use in such exchange and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Certificates (or affidavits of loss in lieu thereof as provided in Section 2.08) or surrender of the Uncertificated Shares to the Exchange Agent), which letter of transmittal shall be in customary form and have such other provisions as Parent and the Company may reasonably agree) for use in such exchange. If any Dissenting Shares cease to be Dissenting Shares pursuant to Section 2.04, the Surviving Corporation shall cause the Exchange Agent promptly (and in any event within five Business Days) after the date on which such Dissenting Shares cease to be Dissenting Shares to mail to the record holder of such shares of Company Stock the letter of transmittal and instructions referred to in the immediately preceding sentence, with respect to such shares of Company Stock. (bc) Each holder of Shares shares of Company Stock that have been converted into a the right to receive the Merger ConsiderationConsideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a certificate or certificates formerly representing such SharesCertificate, together with a properly completed letter of transmittal covering transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of surrender as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, in exchange therefor a cash amount by check or wire transfer of immediately available funds to an account designated by such holder (less any required Tax withholdings as provided in Section 2.07) equal to the product of (x) the number of shares of Company Stock represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 2.08) or book-entry transfer of Uncertificated Shares and (y) the Merger Consideration. Upon such surrender or transfer, as the case may be, each such Certificate or Uncertificated Share shall forthwith be canceled. No interest will be entitled to receive paid or accrued on any amount payable upon such surrender or transfer, as the aggregate Merger Consideration payable in respect of such Sharescase may be. Until so surrendered and except or transferred, as otherwise set forth in Section 2.3the case may be, each such certificate shall, Certificate or Uncertificated Share shall represent after the Effective Time, represent Time for all purposes, purposes only the right to receive such Merger Consideration. No interest will be paid or will accrue on such Merger Consideration. (c) No certificate or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender of certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the aggregate number of Shares represented thereby), (ii) In-The-Money Options who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, if such holder would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, if the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, such exchange) on the Closing Date, rounded down to the nearest whole cent. (d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of Parent Common Stock, without interest and (ii) at the appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock. (e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be paid to a Person (as defined below) other than the registered holder of such certificate Person in whose name the surrendered Certificate or certificatesthe transferred Uncertificated Share is registered, it shall be a condition to such payment that the certificate or certificates so surrendered (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and that (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Shares Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. (e) Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Exchange Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (Eastern time) on the Closing Date, the Exchange Agent will transmit to DTC or its nominee on the Closing Date an amount in cash in immediately available funds equal to the Merger Consideration to be paid in respect of the Certificates and Uncertificated Shares held of record by DTC or such nominee immediately prior to the Effective Time (such amount, the “DTC Payment”) and (ii) if the Closing occurs after 11:30 a.m. (Eastern time) on the Closing Date, the Exchange Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment. (f) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. For purposes If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2. (g) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) that remains unclaimed by the holders of shares of Company Stock entitled thereto six months after the Effective Time shall be returned to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this AgreementSection 2.03 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration in respect of such shares without any interest thereon, upon (i) surrender to the Surviving Corporation of a Certificate, together, if requested by the Surviving Corporation, with a properly completed letter of transmittal, or (ii) receipt of an “PERSONagent’s message” means an individualby the Surviving Corporation (or such other evidence, if any, of transfer as the Surviving Corporation may reasonably request) in the case of a corporationbook-entry transfer of Uncertificated Shares. Notwithstanding the foregoing, a limited liability companynone of Parent, a partnershipthe Surviving Corporation, an association, a trust the Exchange Agent or any other entity Person shall be liable to any holder of shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or organizationsimilar laws. Any amounts remaining unclaimed by holders of shares of Company Stock two years after the Effective Time (or such earlier date, including a government immediately prior to such time when the amounts would otherwise escheat to or political subdivision become property of any Governmental Authority) shall become, to the extent permitted by Applicable Law, the property of the Surviving Corporation free and clear of any claims or interest of any agency or instrumentality thereofPerson previously entitled thereto.