Contract analysis

Section 1.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: "Acquisition Proposal" means any inquiry, proposal, or offer (other than by Parent, Merger Sub, or any of their respective Affiliates) from any Person or group of Persons relating to, in a single transaction or a series of related transactions, any (a) merger, consolidation, business combination, reca

Section 1.2 Interpretation. (a) When a reference is made in this Agreement to an Article, Section, Exhibit, or Schedule, such reference shall be to an Article, Section, Exhibit, or Schedule of or to this Agreement unless otherwise indicated. (b) The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement

Section 2.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease at the Effective Time, and the Company shall continue as the Surviving Corporation after the Merg

Section 2.2 Closing. Unless this Agreement shall have been terminated pursuant to Article VIII, and subject to the satisfaction or waiver of each of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), the closing of the Merger (the "Closing") shall take place at 10:00

Section 2.3 Effective Time. On the Closing Date, the Parties shall cause the Certificate of Merger to be duly executed, acknowledged, and filed with the Secretary of State of the State of Delaware in accordance with Section 251 of the DGCL. The Merger shall become effective at the time when the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later time as may

Section 2.4 Certificate of Incorporation and Bylaws of the Surviving Corporation. (a) At the Effective Time, the Certificate of Incorporation of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated in its entirety to read as set forth in Exhibit A hereto, and as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation until thereafter

Section 2.5 Directors and Officers of the Surviving Corporation. (a) At the Effective Time, the directors of the Surviving Corporation shall be such individuals as Parent shall designate by written notice to the Company prior to the Closing (which designation shall be made not later than two (2) Business Days prior to the anticipated Closing Date), each of whom shall hold office in accordance with the certificate of

Section 2.6 Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or the holders of any of the following securities: (a) Conversion of Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Cancelled Shares and Dissenting Shares) shall automatically be c

Section 2.7 Treatment of Company Equity Awards. (a) Company Options. At the Effective Time, each Company Option that is outstanding and unexercised immediately prior to the Effective Time, whether or not then vested or exercisable, shall be treated as follows: (i) Each Company Option with an exercise price per share that is less than the Per Share Merger Consideration (each, an "In-the-Money Option") shall, at the Ef

Section 2.8 Payment Procedures. (a) Paying Agent. Prior to the Effective Time, Parent shall appoint a bank or trust company reasonably acceptable to the Company to act as paying agent for the Merger (the "Paying Agent"). At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent the aggregate amount of cash necessary to pay the Per Share Merger Consideration to all holder

Section 2.9 Escrow. (a) At the Closing, Parent shall deposit, or cause to be deposited, the Escrow Amount of Forty Million Dollars ($40,000,000) with the Escrow Agent pursuant to and in accordance with the terms of the Escrow Agreement. The Escrow Amount represents five percent (5%) of the Aggregate Merger Consideration and is being deposited to provide a source of funds for the satisfaction of indemnification claims

Section 2.10 Dissenting Shares. (a) Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and held by any holder of such shares who has not voted in favor of or consented to the adoption of this Agreement and who is entitled to demand and has in writing appraisal rights for such shares in accordance with Secti

Section 2.11 Withholding. Each of Parent, the Surviving Corporation, and the Paying Agent shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, the Treasury Regulations, or any other applicable Tax Law. To the extent that amounts are so deducted and withheld and ti

Section 2.12 Lost Certificates. If any certificate that immediately prior to the Effective Time represented shares of Company Common Stock shall have been lost, stolen, or destroyed, then upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen, or destroyed, and if required by Parent or the Paying Agent, the posting by such Person of a bond in such reasonable and custom

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as (a) set forth in the Company Disclosure Schedules (it being understood and agreed that any information set forth in one section or subsection of the Company Disclosure Schedules shall be deemed to apply to and qualify the representation and warranty set forth in the corresponding section or subsection of this Article III and any other section or subs

Section 3.1 Organization, Good Standing, and Qualification. The Company is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware, with Delaware File Number 5918437. The registered agent of the Company in Delaware is Capitol Corporate Services, LLC, located at 800 North King Street, Suite 400, Wilmington, Delaware 19801. The Company has all requisite corporate

Section 3.2 Corporate Authority; Approval. (a) The Company has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby (subject to obtaining the Company Stockholder Approval). The execution, delivery, and performance of this Agreement by the Company, and the consummation by the Company of the transa

Section 3.3 Governmental Filings; No Violations. (a) No consent, approval, Order, or authorization of, or registration, declaration, notice, or filing with, any Governmental Authority is required by or with respect to the Company or any of its Subsidiaries in connection with the execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby, except for (i) the filin

Section 3.4 Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock, par value $0.001 per share, and 20,000,000 shares of preferred stock, par value $0.001 per share (of which no shares are issued and outstanding). As of the date of this Agreement, there are 51,200,000 shares of Company Common Stock issued and outstanding. All outstanding shares of Compan