EXHIBIT 5
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`
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`EFiled: Feb 25 2011 6:22PM EST
`Transaction ID 36149112
`Case No. 6124-VCN
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`

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`Agreement and Plan of Merger
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`EX-2.1 2 dex21.htm AGREEMENT AND PLAN OF MERGER
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`Page 1 of 85
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`Exhibit 2.1
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`AGREEMENT AND PLAN OF MERGER
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`Among
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`QUALCOMM INCORPORATED,
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`T MERGER SUB, INC.
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`and
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`ATHEROS COMMUNICATIONS, INC.
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`Dated as of January 5, 2011
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`Agreement and Plan of Merger
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`Page 2 of 85
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`TABLE OF CONTENTS
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`ARTICLE I
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`The Merger
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`SECTION 1.01. The Merger
`SECTION 1.02. Closing
`SECTION 1.03. Effective Time of the Merger
`SECTION 1.04. Effects of the Merger
`SECTION 1.05. Certificate of Incorporation and Bylaws
`SECTION 1.06. Directors
`SECTION 1.07. Officers
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`SECTION 2.01. Conversion of Capital Stock
`SECTION 2.02. Equity Awards
`SECTION 2.03. Warrants
`SECTION 2.04. Appraisal Rights
`SECTION 2.05. Exchange of Certificates
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`ARTICLE II
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`Conversion of Securities
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`ARTICLE III
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`Representations and Warranties
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`SECTION 3.01. Representations and Warranties of the Company
`SECTION 3.02. Representations and Warranties of Parent and Sub
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`ARTICLE IV
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`Covenants Relating to Conduct of Business
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`SECTION 4.01. Conduct of Business
`SECTION 4.02. No Solicitation
`SECTION 4.03. Conduct by Parent
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`i
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`Page
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`1
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`2
`2
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`3
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`5
`6
`7
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`42
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`Agreement and Plan of Merger
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`ARTICLE V
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`Additional Agreements
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`SECTION 5.01. Preparation of the Proxy Statement; Stockholders Meeting
`SECTION 5.02. Access to Information; Confidentiality
`SECTION 5.03. Commercially Reasonable Efforts; Consultation and Notice
`SECTION 5.04. Indemnification, Exculpation and Insurance
`SECTION 5.05. Fees and Expenses
`SECTION 5.06. Public Announcements
`SECTION 5.07. Resignation of Subsidiary Directors
`SECTION 5.08. Sub Compliance
`SECTION 5.09. Company Employees
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`ARTICLE VI
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`Conditions Precedent
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`SECTION 6.01. Conditions to Each Party’s Obligation to Effect the Merger
`SECTION 6.02. Conditions to Obligations of Parent and Sub
`SECTION 6.03. Conditions to Obligation of the Company
`SECTION 6.04. Frustration of Closing Conditions
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`SECTION 7.01. Termination
`SECTION 7.02. Effect of Termination
`SECTION 7.03. Amendment
`SECTION 7.04. Extension; Waiver
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`ARTICLE VII
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`Termination, Amendment and Waiver
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`ARTICLE VIII
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`General Provisions
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`SECTION 8.01. Nonsurvival of Representations and Warranties
`SECTION 8.02. Notices
`SECTION 8.03. Definitions
`SECTION 8.04. Exhibits; Interpretation
`SECTION 8.05. Counterparts
`SECTION 8.06. Entire Agreement; No Third-Party Beneficiaries
`SECTION 8.07. Governing Law
`SECTION 8.08. Assignment
`SECTION 8.09. Consent to Jurisdiction; Service of Process; Venue
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`ii
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`56
`58
`59
`60
`61
`61
`61
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`62
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`64
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`66
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`SECTION 8.10. WAIVER OF JURY TRIAL
`SECTION 8.11. Enforcement
`SECTION 8.12. Consents and Approvals
`SECTION 8.13. Severability
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`75
`75
`75
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`EXHIBIT A Form of Amended and Restated Certificate of Incorporation of the Surviving Corporation
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`Agreement and Plan of Merger
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`GLOSSARY
`
`Term
`1998 Plan
`2004 Plan
`2009 Plan
`Acquisition Agreement
`Adverse Recommendation Change
`Adverse Recommendation Change Notice
`affiliate
`Agreement
`Appraisal Shares
`Assumed Shares
`Benefit Agreements
`Benefit Plans
`Certificate
`Certificate of Merger
`Closing
`Closing Date
`Code
`Commonly Controlled Entity
`Company
`Company Bylaws
`Company Certificate
`Company Common Stock
`Company Letter
`Company Personnel
`Company Preferred Stock
`Company Stock Plans
`Confidentiality Agreement
`Contract
`Copyrights
`DGCL
`Effect
`Effective Time
`Environmental Claims
`Environmental Law
`Environmental Permits
`Equity Equivalents
`ERISA
`ESPP
`Exchange Act
`Exchange Fund
`Exchange Ratio
`FCPA
`Filed SEC Document
`
`iv
`
`Section
`3.01(c)(i)
`3.01(c)(i)
`3.01(c)(i)
`4.02(b)
`4.02(b)
`4.02(b)
`8.03(a)
`Preamble
`2.04
`2.02(a)(iv)
`3.01(g)
`3.01(k)(i)
`2.01(c)
`1.03
`1.02
`1.02
`2.05(f)
`3.01(k)(i)
`Preamble
`3.01(a)
`3.01(a)
`2.01
`3.01
`3.01(g)
`3.01(c)(i)
`3.01(c)(i)
`4.02(a)
`8.03(b)
`8.03(c)
`1.01
`8.03(i)
`1.03
`3.01(l)
`3.01(l)
`3.01(l)(ii)
`3.01(c)(iv)
`3.01(m)(i)
`3.01(c)(i)
`3.01(d)
`2.05(a)
`8.03(d)
`3.01(r)
`3.01
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`Foreign Benefit Plans
`GAAP
`GATX
`Governmental Entity
`Grant Date
`Hazardous Materials
`HSR Act
`Indebtedness
`Intellectual Property
`Intellon 2000 Plan
`Intellon 2007 Plan
`Intervening Event
`IRS
`Issued Patents
`Judgment
`knowledge
`Law
`Leased Real Property
`Legal Restraints
`Liens
`Major Customer
`Major Customer Contract
`Major Supplier
`Major Supplier Contract
`Material Adverse Effect
`Material Contract
`Merger
`Merger Consideration
`NASDAQ
`Notice of Superior Proposal
`Off-the-Shelf Software
`Open License Terms
`Parent
`Parent Common Stock
`Parent’s Plan
`Parties
`Patent Applications
`Patents
`Paying Agent
`Pension Plan
`Permits
`Permitted Liens
`person
`Post-Signing Returns
`Product(s)
`Proxy Statement
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`v
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`3.01(m)(xi)
`3.01(e)(i)
`3.01(c)(vii)
`3.01(d)
`3.01(c)(iii)
`3.01(l)
`3.01(d)
`3.01(c)(v)
`8.03(e)
`3.01(c)(i)
`3.01(c)(i)
`4.02(b)
`3.01(m)(ii)
`8.03(f)
`3.01(d)
`8.03(g)
`3.01(d)
`3.01(o)(iii)
`6.01(c)
`8.03(h)
`3.01(i)(O)
`3.01(i)(O)
`3.01(i)(P)
`3.01(i)(P)
`8.03(i)
`3.01(i)
`Recitals
`2.01(c)
`3.01(c)(iii)
`4.02(b)
`8.03(j)
`8.03(o)
`Preamble
`2.02(a)(i)
`5.09(a)
`Preamble
`8.03(k)
`8.03(l)
`2.05(a)
`3.01(m)(i)
`3.01(j)
`3.01(i)(F)
`8.03(m)
`4.01(d)
`8.03(n)
`3.01(d)
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`Public Software
`Registered Copyrights
`Related Software
`Release
`Residual Shares
`RSU Agreements
`RSUs
`SEC
`SEC Documents
`Section 262
`Securities Act
`Source Code
`SOX
`Specified Contracts
`Specified Quarter End Date
`Stock Option Agreements
`Stock Options
`Stockholder Approval
`Stockholders Meeting
`Sub
`Subsidiary
`Superior Proposal
`Surviving Corporation
`Takeover Proposal
`tax return
`taxes
`taxing authority
`Termination Date
`Termination Fee
`Trade Secrets
`Trademarks
`Transferred Employee
`Warrant Cancelation Payments
`Warrants
`Welfare Plan
`Work
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`vi
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`8.03(o)
`8.03(p)
`8.03(o)
`3.01(l)
`2.02(a)(iv)
`3.01(c)(vi)
`3.01(c)(i)
`3.01(d)
`3.01(e)(i)
`2.04
`3.01(e)(i)
`8.03(q)
`3.01(e)(ii)
`3.01(i)
`8.03(r)
`3.01(c)(vi)
`3.01(c)(i)
`3.01(d)
`5.01(b)
`Preamble
`8.03(s)
`4.02(a)
`1.01
`4.02(a)
`3.01(n)(xix)
`3.01(n)(xix)
`3.01(n)(xix)
`7.01(b)(i)
`5.05(b)
`8.03(t)
`8.03(u)
`5.09(a)
`2.03(a)
`3.01(c)(i)
`3.01(m)(iv)
`8.03(o)
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`Agreement and Plan of Merger
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`AGREEMENT AND PLAN OF MERGER dated as of January 5, 2011 (this “Agreement”), by and among
`QUALCOMM INCORPORATED, a Delaware corporation (“Parent”), T MERGER SUB, INC., a Delaware
`corporation and a wholly owned subsidiary of Parent (“Sub”), and ATHEROS COMMUNICATIONS, INC., a
`Delaware corporation (the “Company” and, together with Parent and Sub, collectively, the “Parties”).
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`WHEREAS, Parent desires to acquire the Company on the terms and subject to the conditions set forth in this Agreement;
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`WHEREAS, the Board of Directors of each of the Company and Sub unanimously deems it in the best interests of their
`respective stockholders to consummate the merger (the “Merger”), on the terms and subject to the conditions set forth in this
`Agreement, of Sub with and into the Company in which the Company would become a wholly owned subsidiary of Parent, and such
`Boards of Directors have unanimously approved this Agreement, declared its advisability and recommended that this Agreement be
`adopted by the stockholders of the Company or Sub, as the case may be; and
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`WHEREAS, Parent, Sub and the Company desire to make certain representations, warranties, covenants and agreements in
`connection with the Merger and also to prescribe various conditions to the Merger.
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`NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and
`agreements set forth herein, the Parties agree as follows:
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`ARTICLE I
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`THE MERGER
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`SECTION 1.01. The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance
`with the General Corporation Law of the State of Delaware (the “DGCL”), Sub shall be merged with and into the Company at the
`Effective Time. At the Effective Time, the separate corporate existence of Sub shall cease and the Company shall continue as the
`surviving corporation (the “Surviving Corporation”).
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`SECTION 1.02. Closing. The closing of the Merger (the “Closing”) will take place at 10:00 a.m., California time, on a date
`to be specified by the Parties, which shall be not later than the third business day after satisfaction or (to the extent permitted by Law)
`waiver of the conditions set forth in Article VI (other than those conditions that by their terms are to be satisfied or waived at the
`Closing, it being understood that the occurrence of the Closing shall remain subject to the satisfaction or waiver of such conditions at
`Closing), at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019, unless another time, date
`or place is agreed to in
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`Agreement and Plan of Merger
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`writing by Parent and the Company; provided, however, that if, but for this proviso, the Closing would have occurred on a Specified
`Quarter End Date, then the Closing shall take place on the first business day that is in the subsequent fiscal quarter of Parent or on
`such other date to be specified by the Parties (it being understood that the occurrence of the Closing shall remain subject to the
`satisfaction or (to the extent permitted by Law) waiver of the conditions set forth in Article VI at the Closing). The date on which the
`Closing occurs is referred to in this Agreement as the “Closing Date”.
`
`SECTION 1.03. Effective Time of the Merger. Upon the terms and subject to the conditions set forth in this Agreement, on
`the Closing Date, the Parties shall properly file with the Secretary of State of the State of Delaware a certificate of merger (the
`“Certificate of Merger”) in such form as is required by, and executed and acknowledged in accordance with, the relevant provisions of
`the DGCL. The Merger shall become effective at such date and time as the Certificate of Merger is duly filed with the Secretary of
`State of the State of Delaware or, to the extent permitted by applicable Law, at such subsequent date and time as Parent and the
`Company shall agree and specify in the Certificate of Merger. The date and time at which the Merger becomes effective is referred to
`in this Agreement as the “Effective Time”.
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`SECTION 1.04. Effects of the Merger. The Merger shall have the effects set forth in the applicable provisions of the
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`DGCL.
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`SECTION 1.05. Certificate of Incorporation and Bylaws. (a) The Certificate of Incorporation of the Company as in effect
`immediately prior to the Effective Time shall be amended by virtue of the Merger at the Effective Time to read in the form of
`Exhibit A hereto and, as so amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or
`amended as provided therein or by applicable Law.
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`(b) The bylaws of Sub as in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation
`until thereafter changed or amended as provided therein or by applicable Law.
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`SECTION 1.06. Directors. The directors of Sub immediately prior to the Effective Time shall be the directors of the
`Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and
`qualified, as the case may be.
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`SECTION 1.07. Officers. The officers of Sub immediately prior to the Effective Time shall be the officers of the Surviving
`Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the
`case may be.
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`ARTICLE II
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`CONVERSION OF SECURITIES
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`SECTION 2.01. Conversion of Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the
`part of the holder of any shares of Common Stock, par value $0.0005 per share, of the Company (the “Company Common Stock”), or
`the holder of any shares of capital stock of Sub:
`
`(a) Capital Stock of Sub. Each issued and outstanding share of common stock of Sub, par value $0.01 per share, shall be
`converted into and become one fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving
`Corporation.
`
`(b) Cancelation of Treasury Stock and Parent-Owned Stock. All shares of Company Common Stock that are owned as
`treasury stock by the Company or owned by Parent or Sub immediately prior to the Effective Time shall automatically be
`canceled and shall cease to exist, and no consideration shall be delivered or deliverable in exchange therefor.
`
`(c) Conversion of Company Common Stock. Each share of Company Common Stock issued and outstanding immediately
`prior to the Effective Time (other than (i) shares to be canceled in accordance with Section 2.01(b) and (ii) except as provided in
`Section 2.04, the Appraisal Shares) shall be converted into the right to receive $45.00 in cash and without interest (the “Merger
`Consideration”). At the Effective Time such shares shall no longer be outstanding and shall automatically be canceled and shall
`cease to exist, and each holder of a certificate or evidence of shares in book-entry form that immediately prior to the Effective
`Time represented any such shares (a “Certificate”) shall cease to have any rights with respect thereto, except the right to receive
`the Merger Consideration in accordance with the terms of this Agreement. The right of any holder of any share of Company
`Common Stock to receive the Merger Consideration shall be subject to and reduced by the amount of any withholding that is
`required under applicable tax Law, such withholding to be pursuant to the terms of Section 2.05(f) and any applicable tax Law.
`
`SECTION 2.02. Equity Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of
`the Company (or, if appropriate, any committee administering the Company Stock Plans) shall adopt such resolutions or take such
`other actions (including obtaining any required consents) as may be required to effect the following:
`
`(i) each Stock Option shall be converted at the Effective Time into an option to acquire, on substantially the same terms and
`conditions as were applicable under such Stock Option (other than with respect to exercisability prior to vesting), the number of
`shares of Parent common stock, par value $0.0001 per share (“Parent Common Stock”) (rounded down to the nearest
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`Agreement and Plan of Merger
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`whole share), determined by multiplying the number of shares of Company Common Stock subject to such Stock Option
`immediately prior to the Effective Time by the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded
`up to the nearest whole cent) equal to (A) the exercise price per share of Company Common Stock otherwise purchasable
`pursuant to such Stock Option divided by (B) the Exchange Ratio; provided, however, that each outstanding vested Stock Option
`held by a current or former non-employee director of the Company immediately prior to the Effective Time, including those the
`vesting of which accelerates upon the effectiveness of the Merger, shall be canceled and converted into the right to receive, as
`soon as administratively practicable after the Effective Time, an amount in cash equal to the product of (x) the total number of
`shares of Company Common Stock subject to such Stock Option immediately prior to the Effective Time (as accelerated) and
`(y) the excess, if any, of the Merger Consideration over the exercise price per share of Company Common Stock otherwise
`purchasable pursuant to such Stock Option;
`
`(ii) each award of RSUs shall be converted at the Effective Time into a restricted stock unit award, subject to substantially
`the same terms and conditions as were applicable under such RSU award, with respect to a number of shares of Parent Common
`Stock determined by multiplying the number of shares of Company Common Stock subject to such RSU award immediately
`prior to the Effective Time by the Exchange Ratio (rounded down to the nearest whole share); provided, that with respect to each
`RSU award consisting of RSUs with performance-based vesting or delivery requirements for which the performance period is
`scheduled to end following the Effective Time, the service-based vesting period applicable to such RSU awards shall be three
`years from the grant date, with one-third of such RSUs under each such award vesting on each of the first three anniversaries of
`the grant date;
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`(iii) subject to Section 2.02(a)(iv), each provision in each Benefit Plan and Benefit Agreement providing for the issuance,
`transfer or grant of any shares of Company Common Stock or any Stock Options, RSUs or any other interests in respect of any
`capital stock (including any phantom stock or stock appreciation rights) of the Company shall be deleted prior to the Effective
`Time, and the Company shall ensure prior to the Effective Time that, following the Effective Time, there shall be no rights to
`acquire shares of Company Common Stock, Stock Options, RSUs or any other interests in respect of any capital stock (including
`any phantom stock or stock appreciation rights) of the Company or the Surviving Corporation; and
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`(iv) any shares of Company Common Stock that remain available for issuance pursuant to any Company Stock Plan as of
`the Effective Time (the “Residual Shares”) shall be converted at the Effective Time into the number of shares of Parent Common
`Stock equal to the product of the number of such Residual Shares and the Exchange Ratio (such shares of Parent Common Stock,
`the “Assumed Shares”).
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`(b) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (or, if appropriate,
`any committee administering the ESPP) shall adopt such resolutions or take such other actions as may be required so that
`(i) participation in the ESPP shall be limited to those employees who are participants on the date of this Agreement, (ii) except to the
`extent necessary to maintain the status of the ESPP as an “employee stock purchase plan” within the meaning of Section 423 of the
`Code and the Treasury Regulations thereunder, participants may not increase their payroll deduction elections or rate of contributions
`from those in effect on the date of this Agreement, (iii) no contribution period shall be commenced after the date of this Agreement,
`(iv) the ESPP shall terminate, effective upon the earlier of the first purchase date following the date of this Agreement and the last
`business day before the Effective Time, but subsequent to the exercise of purchase rights on such purchase date (in accordance with
`the terms of the ESPP) or such last business day (as provided for in the following clause (v)), as applicable, and (v) if the ESPP
`remains in effect on the last business day before the Effective Time, each purchase right under the ESPP outstanding on such day shall
`be automatically exercised by applying the payroll deductions of each then current participant in the ESPP for the then current
`contribution period in effect under the ESPP to the purchase of whole shares of Company Common Stock (subject to the provisions of
`the ESPP regarding the maximum number and value of shares purchasable per participant) at the applicable price determined under
`the terms of the ESPP for such contribution period, using such day as the purchase date for such contribution period.
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`(c) The adjustments provided in Section 2.02(a)(i) with respect to Stock Options, whether or not such Stock Options are
`“incentive stock options” (as defined in Section 422 of the Code), are intended to be effected in a manner that is consistent with
`Section 424(a) of the Code.
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`(d) All amounts payable pursuant to this Section 2.02 shall be subject to any required withholding of taxes and shall be paid
`without interest.
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`(e) The Company shall take all reasonable steps as may be required to cause the transactions contemplated by this
`Section 2.02 and any other dispositions of Company equity securities (including derivative securities) in connection with this
`Agreement by each individual who is a director or officer of the Company subject to Section 16 of the Exchange Act to be exempt
`under Rule 16b-3 promulgated under the Exchange Act.
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`(f) At the Effective Time, by virtue of the Merger and without the need of any further corporate action, Parent shall assume
`the Company Stock Plans, with the result that Parent may issue the Assumed Shares after the Effective Time pursuant to the exercise
`of options or other equity awards granted under the Company Stock Plans or any other plan of Parent or any its Affiliates.
`
`SECTION 2.03. Warrants. (a) Each Warrant outstanding immediately prior to the Closing shall be canceled in exchange for
`a lump-sum cash payment equal to (i) the product of (x) the number of shares of Company Common Stock subject to such
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`Warrant and (y) the Merger Consideration, minus (ii) the product of (x) the number of shares of Company Common Stock subject to
`such Warrant and (y) the per share exercise price of such Warrant. The payments specified above in this Section 2.03(a) are referred to
`herein as the “Warrant Cancelation Payments”. Parent shall cause Sub or the Surviving Corporation to make such Warrant
`Cancelation Payments at or promptly following the Closing upon receipt by Parent of the applicable Warrant and such other
`documents as Parent may reasonably request.
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`(b) The Company shall take all such actions (including obtaining any required consents) as may be required to ensure that
`(i) effective as of the Closing, all Warrants may be canceled solely in exchange for a Warrant Cancelation Payment to the extent
`required by Section 2.03(a) and (ii) following the Closing, no holder of a Warrant (or former holder of a Warrant) shall have any right
`thereunder (x) to acquire any capital stock of the Company, Parent or any of their respective Subsidiaries or any other equity or voting
`interest therein or (y) to put all or any portion of the Warrants to the Company, Parent or any of their Subsidiaries. Promptly after the
`date of this Agreement, the Company shall give to each holder of Warrants the notice, if any, required by Section 10.1 of the
`Warrants.
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`(c) All amounts payable pursuant to this Section 2.03 shall be subject to any required withholding of taxes and shall be paid
`without interest.
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`SECTION 2.04. Appraisal Rights. Notwithstanding anything in this Agreement to the contrary, shares (the “Appraisal
`Shares”) of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who
`is entitled to demand and properly demands appraisal of such shares pursuant to, and who complies in all respects with, the provisions
`of Section 262 of the DGCL (“Section 262”) shall not be converted into the right to receive the Merger Consideration as provided in
`Section 2.01(c), but instead such holder shall be entitled to payment of the fair value of such shares in accordance with the provisions
`of Section 262. At the Effective Time, the Appraisal Shares shall no longer be outstanding and shall automatically be canceled and
`shall cease to exist, and each holder of a certificate or evidence of shares in book-entry form that immediately prior to the Effective
`Time represented Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such
`shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or
`otherwise shall waive, withdraw or lose the right to appraisal under Section 262 or a court of competent jurisdiction shall determine
`that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such
`holder’s Appraisal Shares under Section 262 shall cease and such Appraisal Shares shall be deemed to have been converted at the
`Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.01(c). The
`Company shall serve prompt notice to Parent of any demands for appraisal of any shares of Company Common Stock, withdrawals of
`any such demands and any other related instruments served pursuant to the DGCL received by the Company, and Parent shall have the
`right to participate in and direct all negotiations and proceedings with respect to such demands. The Company shall not, without the
`prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands, or agree to do or
`commit to do any of the foregoing.
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`SECTION 2.05. Exchange of Certificates. (a) Paying Agent. Prior to the Effective Time, Parent shall designate, at its
`option, U.S. Bank National Association or another bank or trust company reasonably acceptable to the Company to act as agent for the
`payment of the Merger Consideration upon surrender of Certificates (the “Paying Agent”). At or prior to the Effective Time, Parent
`shall deliver, or cause to be delivered, to the Paying Agent, for the benefit of the holders of Company Common Stock immediately
`prior to the Effective Time (other than (i) shares to be canceled in accordance with Section 2.01(b) and (ii) the Appraisal Shares),
`funds in the amount necessary for the payment of the Merger Consideration pursuant to Section 2.01(c) upon surrender of Certificates.
`Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as
`directed by Parent (such funds being referred to herein as the “Exchange Fund”), and any and all interest and other income or net
`profits resulting from such investments shall be paid to Parent. To the extent that there are any losses with respect to any investments
`of the Exchange Fund, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to pay the
`Merger Consideration pursuant to Section 2.01(c), upon demand by the Paying Agent, Parent shall promptly reimburse, or shall cause
`the prompt reimbursement of, any such loss so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for
`the Paying Agent to pay the Merger Consideration pursuant to Section 2.01(c).
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`(b) Exchange Procedure. As soon as reasonably practicable after the Effective Time, the Surviving Corporation or Parent
`shall cause the Paying Agent to mail to each holder of record of a Certificate (i) a form of letter of transmittal (which shall include an
`accompanying substitute IRS Form W-9 or the applicable IRS Form W-8, shall specify that delivery shall be effected, and risk of loss
`and title to the Certificates held by such person shall pass, only upon proper delivery of the Certificates to the Paying Agent and shall
`be in a form and have such other provisions (including customary provisions regarding delivery of an “agent’s message” with respect
`to shares held in book-entry form) as Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of the
`Certificates in exchange for the Merger Consideration, and Parent will instruct the Paying Agent to so mail such form of letter of
`transmittal and instructions no more than two business days after the Effective Time. Upon surrender of a Certificate for cancelation to
`the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly
`completed and validly executed, and such other documents as may reasonably be required by the Paying Agent, the holder of such
`Certificate shall be entitled to receive in exchange therefor the amount of cash equal to the Merger Consideration that such holder has
`the right to receive pursuant to Section 2.01(c), and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer
`of ownership of Company Common Stock that is not registered in the stock transfer books of the Company, payment of the Merger
`Consideration in exchange therefor may be made to a person other than the person in whose name the Certificate so surrendered is
`registered if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the person requesting
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`such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of
`such Certificate or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. No
`interest shall be paid or shall accrue on the cash payable upon surrender of any Certificate.
`
`(c) No Further Ownership Rights in Company Common Stock. All cash paid upon the surrender of a Certificate 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
`of Company Common Stock formerly represented by such Certificate. At the close of business on the day on which the Effective Time
`occurs, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock
`transfer books of the Surviving Corporation of the shares that were outstanding immediately prior to the Effective Time. If, after the
`close of business on the day on which the Effective Time occurs, Certificates are presented to the Surviving Corporation or the Paying
`Agent for transfer or any other reason, they shall be canceled and exchanged as provided in this Article II.
`
`(d) No Liability. None of Parent, Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any
`person in respect of any cash that would otherwise have been payable in respect of any Certificate which is delivered to a public
`official in accordance with any applicable abandoned property, escheat or similar Law. If any Certificates shall not have been
`surrendered prior to the date on which any Merger Consideration would otherwise escheat to or become the property of any
`Governmental Entity), any Merger Consideration payable in accordance with this Article II in respect thereof 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.
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`(e) Lost Certificates. If any Certificate shall have been lost, stolen, defaced or destroyed, upon the making of an affidavit of
`that fact by the person claiming such Certificate to be lost, stolen, defaced or destroyed and, if required by the Surviving Corporation,
`the posting by such person of a bond in such amount as the Surviving Corporation may reasonably direct as indemnity against any
`claim that may be made against it with respect to such Certificate, the Paying Agent or the Surviving Corporation, as the case may be