{"id":43162,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-yahoo-inc-and-hotjobs-com-ltd.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-yahoo-inc-and-hotjobs-com-ltd","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-yahoo-inc-and-hotjobs-com-ltd.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Yahoo! Inc. and HotJobs.com Ltd."},"content":{"rendered":"<pre>     =====================================================================\n\n\n\n\n\n\n                          Agreement and Plan of Merger\n\n                          Dated as of December 27, 2001\n\n                                      among\n\n                                   YAHOO! INC.\n\n                              HJ ACQUISITION CORP.\n\n                                       and\n\n                                HOTJOBS.COM, LTD.\n\n\n\n\n\n\n\n\n\n     =====================================================================\n\n\n\n\n\n                                      \n                                TABLE OF CONTENTS\n\n                                                                            Page\n                                                                            ----\n\nARTICLE I THE OFFER AND THE MERGER...........................................2\n   Section 1.1 The Offer.....................................................2\n   Section 1.2 Company Actions...............................................5\n   Section 1.3 Directors.....................................................6\n   Section 1.4 The Merger....................................................7\n   Section 1.5 Closing.......................................................8\n   Section 1.6 Effective Time................................................8\n   Section 1.7 Certificate of Incorporation and Bylaws.......................8\n   Section 1.8 Directors and Officers of the Surviving Corporation...........8\n   Section 1.9 Effects of the Merger.........................................8\n   Section 1.10 Subsequent Actions...........................................9\nARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT\nCORPORATIONS; EXCHANGE OF CERTIFICATES.......................................9\n   Section 2.1 Effect on Capital Stock.......................................9\n   Section 2.2 Exchange of Certificates.....................................10\n   Section 2.3 Dissenting Shares............................................13\nARTICLE III REPRESENTATIONS AND WARRANTIES..................................14\n   Section 3.1 Representations and Warranties of the Company................14\n   Section 3.2 Representations and Warranties of Parent and Sub.............28\nARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS........................33\n   Section 4.1 Conduct of Business..........................................33\n   Section 4.2 No Solicitation..............................................36\nARTICLE V ADDITIONAL AGREEMENTS.............................................38\n   Section 5.1 Preparation of the Proxy Statement; Stockholders Meetings....38\n   Section 5.2 Letters of the Company's Accountants.........................39\n   Section 5.3 [RESERVED]...................................................40\n   Section 5.4 Access to Information; Confidentiality.......................40\n   Section 5.5 Reasonable Best Efforts......................................40\n   Section 5.6 Stock Options; Employee Benefits.............................42\n   Section 5.7 Indemnification, Exculpation and Insurance...................44\n   Section 5.8 Fees and Expenses............................................46\n   Section 5.9 Public Announcements.........................................47\n   Section 5.10 Affiliates..................................................47\n   Section 5.11 Nasdaq Listing..............................................48\n   Section 5.12 Tax Treatment...............................................48\n   Section 5.13 Notices of Certain Events...................................48\n   Section 5.14 Conveyance Taxes............................................49\n   Section 5.15 Stockholder Agreements......................................49\n   Section 5.16 Matters.....................................................49\n   Section 5.17 Antitrust Notice............................................49\nARTICLE VI CONDITIONS PRECEDENT.............................................50\n\n                                       -i-\n\n\n\n\n\n   Section 6.1 Conditions to Each Party's Obligation to Effect the Merger...50\n   Section 6.2 Frustration of Closing Conditions............................50\nARTICLE VII TERMINATION, AMENDMENT AND WAIVER...............................50\n   Section 7.1 Termination..................................................50\n   Section 7.2 Effect of Termination........................................52\n   Section 7.3 Amendment....................................................53\n   Section 7.4 Extension; Waiver............................................53\nARTICLE VIII GENERAL PROVISIONS.............................................53\n   Section 8.1 Nonsurvival of Representations and Warranties................53\n   Section 8.2 Notices......................................................53\n   Section 8.3 Definitions..................................................54\n   Section 8.4 Interpretation...............................................56\n   Section 8.5 Counterparts.................................................56\n   Section 8.6 Entire Agreement; Third-Party Beneficiaries..................56\n   Section 8.7 Governing Law................................................56\n   Section 8.8 Assignment...................................................57\n   Section 8.9 Enforcement..................................................57\n   Section 8.10 Severability................................................57\n\nExhibit 5.10......      Form of Company Affiliate Agreement\nExhibit 5.15......      Form of Stockholder Agreement\n\n\n                                      -ii-\n\n\n\n\n                                      \n                             INDEX OF DEFINED TERMS\n\n                                                                       Defined\n                                                                        Term\n                                                                       Section\n                                                                       -------\n\nAdjusted Option.....................................................   5.6(a)\nAffiliate...........................................................   8.3(a)\nAgreement...........................................................   Preamble\nAppointment Time....................................................   1.3(c)\nBenefit Plan........................................................   3.1(l)(i)\nBenefit Plans.......................................................   3.1(l)(i)\nBusiness Day........................................................   8.3(b)\nCertificate of Merger...............................................   1.6\nCertificates........................................................   2.2(b)\nClosing.............................................................   1.5\nClosing Date........................................................   1.5\nCode................................................................   Preamble\nCommonly Controlled Entity..........................................   3.1(l)(i)\nCompany.............................................................   Preamble\nCompany Common Stock................................................   Preamble\nCompany Disclosure Memorandum.......................................   3.1\nCompany Preferred Stock.............................................   3.1(c)\nCompany SEC Documents...............................................   3.1(e)\nCompany Stock Plans.................................................   5.6(a)\nCompany Stockholder Approval........................................   3.1(r)\nCompany Stockholders Meeting........................................   5.1(b)\nConfidentiality Agreement...........................................   5.4\nDGCL................................................................   1.4\nDissenting Shares...................................................   2.3(a)\nDOJ.................................................................   5.5(c)\nDow Jones News Release..............................................   3.1(e)\nEffective Time......................................................   1.6\nEmployees...........................................................   5.6(e)\nEnvironmental Laws..................................................   3.1(j)\nERISA...............................................................   3.1(l)(i)\nESPP................................................................   5.6(f)\nExchange Act........................................................   1.1(a)\nExchange Agent......................................................   2.2(a)\nExchange Fund.......................................................   2.2(a)\nExchange Offer Consideration........................................   1.1(a)\nExchange Ratio......................................................   1.1(a)\nExpenses............................................................   5.8(b)\nFiled Company SEC Document..........................................   3.1(e)\nFiled Parent SEC Document...........................................   3.2(d)\nForm S-4............................................................   3.1(f)\n\n                                     -iii-\n\n\n\n\n\n                                                                       Defined\n                                                                        Term\n                                                                       Section\n                                                                       -------\n\nForward Merger......................................................   Preamble\nFTC.................................................................   5.5(c)\nFully Diluted Basis.................................................   1.1(b)\nGAAP................................................................   3.1(e)\nGovernmental Entity.................................................   3.1(d)\nHazardous Materials.................................................   3.1(j)\nHSR Act.............................................................   3.1(d)\nIndemnified Party...................................................   5.7(a)\nIndependent Directors...............................................   1.3(b)\nInitial Expiration Date.............................................   1.1(b)\nIntellectual Property Rights........................................   3.1(q)\nIRS.................................................................   3.1(l)(i)\nKnowledge...........................................................   8.3(c)\nLaw.................................................................   1.1(b)\nLegal Provisions....................................................   3.1(j)\nLiens...............................................................   3.1(d)\nMaterial Adverse Effect.............................................   8.3(d)\nMaterial Contracts..................................................   3.1(i)\nMerger..............................................................   1.4\nMerger Consideration................................................   2.1(c)\nMinimum Consideration...............................................   1.1(b)\nOffer...............................................................   Preamble\nOffer Documents.....................................................   1.1(c)\nOffer Registration Statement........................................   1.1(c)\nOffer to Purchase...................................................   1.1(b)\nOption Exchange Ratio...............................................   5.6(a)\nParent..............................................................   Preamble\nParent Common Stock.................................................   Preamble\nParent Disclosure Memorandum........................................   3.2\nParent Preferred Stock..............................................   3.2(b)\nParent Market Price.................................................   1.1(a)\nParent SEC Documents................................................   3.2(d)\nParent Stock Plans..................................................   3.2(b)\nPension Plans.......................................................   3.1(l)(i)\nPer Share Cash Consideration........................................   1.1(a)\nPermits.............................................................   3.1(j)\nPerson..............................................................   8.3(e)\nPreliminary Prospectus..............................................   1.1(c)\nProxy Statement.....................................................   3.1(d)\nRecommendations.....................................................   1.2(c)\nRegulation M-A......................................................   1.1(c)\nRegulatory Law......................................................   5.5(b)\n\n                                      -iv-\n\n\n\n\n                                                                       Defined\n                                                                        Term\n                                                                       Section\n                                                                       -------\nRelease.............................................................   3.1(j)\nRestraints..........................................................   6.1(b)\nReverse Merger......................................................   Preamble\nSchedule 14D-9......................................................   1.2(a)\nSchedule TO.........................................................   1.1(c)\nSEC.................................................................   1.1(b)\nShares..............................................................   Preamble\nSignificant Subsidiary..............................................   8.3(f)\nSecurities Act......................................................   3.1(e)\nStockholder.........................................................   Preamble\nStockholder Agreement...............................................   5.15\nStock Option........................................................   5.6(a)\nSub.................................................................   Preamble\nSubsidiary..........................................................   8.3(g)\nSuperior Proposal...................................................   8.3(h)\nSurviving Corporation...............................................   1.4\nTakeover Proposal...................................................   4.2(a)\nTax Opinion.........................................................   5.12\nTax Returns.........................................................   3.1(n)\nTaxes...............................................................   3.1(n)\nTermination Fee.....................................................   5.8(b)\nTMP.................................................................   Preamble\nTMP Agreement.......................................................   Preamble\nTransaction.........................................................   Preamble\nTrading Day.........................................................   8.3(i)\nValuation Period....................................................   1.1(a)\nWelfare Plans.......................................................   3.1(l)(i)\n\n                                      -v-\n\n\n\n\n\n                         AGREEMENT AND PLAN OF MERGER\n\n            AGREEMENT AND PLAN OF MERGER (this \"AGREEMENT\"), dated as of\nDecember 27, 2001, by and among Yahoo! Inc., a Delaware corporation\n(\"PARENT\"), HJ Acquisition Corp., a Delaware corporation and a newly formed,\ndirect, wholly-owned subsidiary of Parent (\"SUB\"), and HotJobs.com, Ltd., a\nDelaware corporation (the \"COMPANY\").\n\n            WHEREAS, the respective Boards of Directors of Parent, Sub and the\nCompany have approved and declared advisable this Agreement, the Offer and the\nMerger (as defined herein).\n\n            WHEREAS, it is intended that the acquisition be accomplished by Sub\ncommencing an offer (as it may be amended from time to time as permitted by this\nAgreement, the \"OFFER\") in which each of the issued and outstanding shares of\ncommon stock, par value $0.01, of the Company (the \"SHARES\" or \"COMPANY COMMON\nSTOCK\"), upon the terms and subject to the conditions set forth in this\nAgreement, may be exchanged for the right to receive from Parent (A) a fraction\nof a share of common stock, par value $0.001 per share, of Parent together with\nthe associated rights to purchase shares of Series A Junior Participating\nPreferred Stock, par value $.001 per share, of Parent issued and issuable\npursuant to the Rights Agreement dated as of March 15, 2001 between Parent and\nEquiServe Trust Company, N.A., as Rights Agent (together, \"PARENT COMMON STOCK\")\nas determined in accordance with Article I hereof and (B) the Per Share Cash\nConsideration (together with any cash to be paid in lieu of fractional shares of\nParent Common Stock to be paid pursuant to Article I hereof) in cash, to be\nfollowed by a merger of the Company with and into Sub (the \"FORWARD MERGER\").\n\n            WHEREAS, subsequent to the acquisition by Sub of Shares in the\nOffer, upon the terms and subject to the conditions set forth in this Agreement,\neach issued and outstanding Share, other than Shares owned by Parent, Sub or the\nCompany, will be converted into the right to receive cash and Parent Common\nStock as set forth herein.\n\n            WHEREAS, the Company's Board of Directors has unanimously, by those\npresent at such meeting of the Board of Directors, determined that the\nconsideration to be paid for each Share in the Offer and the Merger is fair to\nthe holders of such Shares and has resolved to recommend that the holders of\neach Share accept the Offer and adopt this Agreement and each of the\ntransactions contemplated by this Agreement upon the terms and subject to the\nconditions set forth herein.\n\n            WHEREAS, the Company has validly terminated the Agreement and Plan\nof Merger (the \"TMP AGREEMENT\"), dated as of June 29, 2001, among TMP Worldwide\nInc. (\"TMP\"), TMP Tower Corp. and the Company pursuant to Section 7.1(f)\nthereof.\n\n\n                                      \n            WHEREAS, the voting agreement by and between John A. Hawkins and\nTMP dated as of June 29, 2001 was validly terminated on December 27, 2001 in\naccordance with Section 7.16 thereof.\n\n            WHEREAS, if the Tax Opinion (as defined herein) is not obtained, the\nparties desire to provide for an alternate merger structure providing for the\nmerger of Sub (or other direct or indirect wholly-owned subsidiary of Parent, as\ndetermined by Parent in its sole discretion) with and into the Company (the\n\"REVERSE MERGER\"), and the surviving corporation shall thereby become a direct\nor indirect wholly-owned subsidiary of Parent.\n\n            WHEREAS, for U.S. Federal income tax purposes, it is intended that\nthe Offer and the Forward Merger (the \"TRANSACTION\") shall be treated as an\nintegrated transaction and shall qualify as a reorganization within the meaning\nof Section 368(a) of the Internal Revenue Code of 1986, as amended, and the\nrules and regulations promulgated thereunder (the \"CODE\"), and that this\nAgreement shall be, and is hereby, adopted as a plan of reorganization for\npurposes of Sections 354 and 361 of the Code.\n\n            WHEREAS, contemporaneously with the execution and delivery of this\nAgreement, and as a condition and inducement to Parent's and Sub's willingness\nto enter into this Agreement, certain stockholders of the Company (each, a\n\"STOCKHOLDER\") are entering into a stockholders agreement in the form attached\nhereto as Exhibit 5.15, pursuant to which each such Stockholder is agreeing,\namong other things, to validly tender for exchange all Shares owned by such\nStockholder.\n\n            NOW, THEREFORE, in consideration of the representations, warranties,\ncovenants and agreements contained in this Agreement and intending to be legally\nbound hereby, the parties hereto agree as follows:\n\n                                   ARTICLE I\n\n                            THE OFFER AND THE MERGER\n\n     Section 1.1 THE OFFER.\n\n          (a)  Provided that this Agreement shall not have been terminated in\naccordance with Section 7.1 hereof and none of the events set forth in Annex I\nhereto shall have occurred or be existing, Sub (or another direct or indirect\nwholly-owned Subsidiary of Parent in Parent's sole discretion (so long as such\nchange of entity shall not adversely affect the intended tax-free nature of the\ntransaction), in which case all references to \"Sub\" in this Agreement shall be\nto such other Subsidiary) shall commence (within the meaning of Rule 14d-2 under\nthe Securities Exchange Act of 1934, as amended (together with the rules and\nregulations promulgated thereunder, the \"EXCHANGE ACT\")) not later than ten (10)\nBusiness Days after the date hereof the Offer to exchange for each Share: (i) a\nfraction of a share of Parent Common Stock equal to the Exchange Ratio and (ii)\ncash in an amount equal to (A) Ten Dollars and Fifty Cents ($10.50) minus (B) an\namount equal to the product of (x) the Exchange Ratio multiplied by (y) the\nParent Market Price, without interest (the \"PER SHARE CASH CONSIDERATION\") as\npromptly as practicable following the date hereof (together, the \"EXCHANGE OFFER\nCONSIDERATION\"). For purposes of this \n\n\n                                       2\n\n\nAgreement, the \"EXCHANGE RATIO\" shall be equal to the result obtained by\ndividing Five Dollars and Twenty-Five Cents ($5.25) by the Parent Market Price;\nprovided if the number of shares of Parent Common Stock otherwise issuable as\npart of the Exchange Offer Consideration (assuming valid tender and no\nwithdrawal of Thirty-Nine Million Five Hundred Thousand (39,500,000) Shares)\nwould otherwise exceed Fifteen Million (15,000,000) (the \"MAXIMUM NUMBER\"), then\nthe Exchange Ratio shall be reduced to a number equal to the quotient of (i) the\nMaximum Number divided by (ii) Thirty-Nine Million Five Hundred Thousand\n(39,500,000), rounded to four decimal points. In the event that Parent declares\na stock split, stock dividend or other reclassification or exchange with respect\nto Parent Common Stock with a record or ex-dividend date occurring during the\nValuation Period or for the period between the termination of the Valuation\nPeriod and the Effective Time, there will be an appropriate adjustment made to\nthe closing sales prices during the Valuation Period and the Maximum Number for\npurposes of calculating the Exchange Ratio. The \"PARENT MARKET PRICE\" means the\naverage of the daily volume-weighted average prices, rounded to four decimal\npoints, of Parent Common Stock, as reported by Bloomberg, L.P., during each\nTrading Day in the Valuation Period. \"VALUATION PERIOD\" means the period of ten\n(10) consecutive Trading Days ending on and including the second Trading Day\nbefore and excluding the Initial Expiration Date or, if applicable, the latest\nextension of such expiration date, other than an extension relating to a\n\"subsequent offering period\" pursuant to Rule 14d-11 of the Exchange Act.\n\n          (b) The obligations of Sub to accept for payment and to pay for any\nShares validly tendered and not withdrawn prior to the expiration of the Offer\n(as it may be extended in accordance with the requirements of this Section\n1.1(b)) shall be subject only to (i) there being validly tendered and not\nwithdrawn prior to the expiration of the Offer that number of Shares which,\ntogether with the Shares then owned by Parent or Sub (without giving effect to\nShares subject to the Stockholder Agreement (as defined herein) unless such\nshares have been validly tendered and not withdrawn as of such time), represents\nat least a majority of the Shares outstanding on a Fully Diluted Basis (the\n\"MINIMUM CONDITION\"), and (ii) the other conditions set forth in Annex I hereto.\nThe Company agrees that no Shares held by the Company or any of its Subsidiaries\nwill be tendered to Parent pursuant to the Offer. As used in this Agreement,\n\"FULLY DILUTED BASIS\" shall refer to the number of Shares issued and outstanding\nat any time after taking into account all Shares issuable upon the conversion of\nthe Company's convertible securities or upon the exercise of any options,\nwarrants or rights to purchase shares of the capital stock of the Company to the\nextent that the exercise price or conversion price, as the case may be, of such\nconvertible security, option, warrant or right is less than $10.00 per share.\nSubject to the prior satisfaction or waiver by Parent or Sub of the Minimum\nCondition and the other conditions set forth in Annex I hereto, Sub shall\npromptly consummate the Offer in accordance with its terms and accept for\npayment and pay for all Shares tendered and not withdrawn promptly following the\nacceptance of Shares for payment pursuant to the Offer. The Offer shall be made\nby means of an offer to purchase (the \"OFFER TO PURCHASE\") that contains the\nterms set forth in this Agreement, the Minimum Condition and the other\nconditions set forth in Annex I hereto. Parent expressly reserves the right to\nwaive any of such conditions, to increase the Exchange Offer Consideration\npayable in the Offer and to make any other changes in the terms of the Offer;\nprovided, however, that Sub shall not, and Parent shall cause Sub not to,\ndecrease the Exchange Offer Consideration, change the form of consideration\npayable in the Offer (including the ratio of cash to shares of Parent Common\nStock, except as provided in Section 1.1(a) hereof), decrease the number of\nShares sought in the Offer, waive the Minimum \n\n\n                                       3\n\n\nCondition, impose additional conditions to the Offer, extend the offer beyond\nthe date that is twenty (20) \"business days\" (as such term is defined in Rule\n14d-1(g) under the Exchange Act) after commencement of the Offer (the \"INITIAL\nEXPIRATION DATE\") except as set forth herein, or amend any other condition of\nthe Offer in any manner adverse to the holders of the Shares, in each case\nwithout the prior written consent of the Company (such consent to be authorized\nby the Company's Board of Directors or a duly authorized committee thereof).\nNotwithstanding the foregoing, Sub may, without the consent of the Company, (i)\nextend the Offer beyond the Initial Expiration Date if, at the Initial\nExpiration Date or, if applicable, the latest extension of such expiration date,\nany of the conditions to Sub's obligation to accept Shares for payment shall not\nbe satisfied or waived, or (ii) extend the Offer for any period required by any\nrule, regulation or interpretation of the United States Securities and Exchange\nCommission (\"SEC\"), or the staff thereof, or by any other federal, state, local,\nforeign or other statute, law, ordinance, rule or regulation or any order, writ,\ndecision, injunction, judgment, award or decree (collectively, \"LAW\"),\napplicable to the Offer. If at the Initial Expiration Date or the latest\nextension of such date all of the conditions to the Offer have been satisfied or\nwaived, Sub may (and, if the number of Shares validly tendered and not withdrawn\npursuant to the Offer equals seventy percent (70%) or more, but less than ninety\npercent (90%) of the Shares outstanding on a Fully Diluted Basis of Company\nCommon Stock, shall) extend the Offer pursuant to a \"subsequent offering period\"\nnot to exceed twenty (20) business days (as such term is defined in Rule\n14d-1(g) under the Exchange Act) to the extent permitted under, and in\ncompliance with, Rule 14d-11 under the Exchange Act.\n\n          (c) Within ten (10) Business Days after the date of this Agreement,\nParent shall prepare and file with the SEC a registration statement on Form S-4\n(together with any amendments, supplements and exhibits thereto, the \"OFFER\nREGISTRATION STATEMENT\") to register the offer and sale of Parent Common Stock\npursuant to the Offer. The Offer Registration Statement will include a\npreliminary prospectus containing the information required under Rule 14d-4(b)\npromulgated under the Exchange Act (the \"PRELIMINARY PROSPECTUS\"). As soon as\npracticable on the date the Offer is commenced, Parent and Sub shall file with\nthe SEC, pursuant to Regulation M-A under the Exchange Act (\"REGULATION M-A\"), a\nTender Offer Statement on Schedule TO which will contain or incorporate by\nreference all or part of the Preliminary Prospectus, the Offer to Purchase and\nthe related letter of transmittal form and all other ancillary documents with\nrespect to the Offer (together with all amendments, supplements and exhibits\nthereto, the \"SCHEDULE TO\") (the Schedule TO, the Offer Registration Statement\nand such documents included therein pursuant to which the Offer will be made,\ntogether with any amendments, supplements and exhibits thereto, the \"OFFER\nDOCUMENTS\"). Parent and Sub agree to take all steps necessary to cause the Offer\nDocuments to be filed with the SEC and disseminated to holders of Shares, in\neach case as and to the extent required by applicable federal securities laws.\nParent and Sub, on the one hand, and the Company, on the other hand, agree to\npromptly correct any information provided by it for use in the Offer Documents\nif and to the extent that it shall have become false or misleading in any\nmaterial respect or as otherwise required by Law. Parent and Sub further agree\nto take all steps necessary to cause the Offer Documents as so corrected to be\nfiled with the SEC and disseminated to holders of Shares, in each case as and to\nthe extent required by applicable federal securities laws. The Company and its\ncounsel shall be given a reasonable opportunity to review the Offer Documents\nbefore they are filed with the SEC. In addition, Parent and Sub agree to provide\nthe Company and its counsel with any comments that Parent, Sub or their counsel\nmay receive from time to time from \n\n\n                                       4\n\n\nthe SEC or its staff with respect to the Offer Documents promptly after receipt \nof such comments, and any responses thereto.\n\n          (d) Withholding Rights. Each of Parent and Sub shall be entitled to\ndeduct and withhold, or cause the Exchange Agent to deduct and withhold, from\nthe Exchange Offer Consideration payable to a holder of Shares pursuant to the\nOffer such amounts as it is required to deduct and withhold with respect to the\nmaking of such payment under the Code, or any provision of state, local or\nforeign tax law. To the extent that amounts are so withheld by Sub or Parent, as\nthe case may be, such withheld amounts shall be treated for all purposes of this\nAgreement as having been paid to the holder of the Shares in respect of which\nsuch deduction and withholding was made by Sub or Parent, as the case may be.\n\n     Section 1.2 COMPANY ACTIONS.\n\n          (a) As soon as practicable on the date the Offer is commenced, the\nCompany shall, in a manner that complies with Rule 14d-9 under the Exchange Act,\nfile with the SEC a Tender Offer Solicitation\/Recommendation Statement on\nSchedule 14D-9 (together with all amendments, supplements and exhibits thereto,\nthe \"SCHEDULE 14D-9\") which shall, subject to the provisions of Section 4.2(b),\ncontain the Recommendations (as defined herein). The Company further agrees to\ntake all steps necessary to cause the Schedule 14D-9 to be filed with the SEC\nand disseminated to holders of Shares, in each case as and to the extent\nrequired by applicable federal securities laws. The Company, on the one hand,\nand Parent and Sub, on the other hand, agree to promptly correct any information\nprovided by it for use in the Schedule 14D-9 if and to the extent that it shall\nhave become false or misleading in any material respect or as otherwise required\nby Law. The Company agrees to take all steps necessary to cause the Schedule\n14D-9 as so corrected to be filed with the SEC and disseminated to holders of\nthe Shares, in each case as and to the extent required by applicable federal\nsecurities laws. Parent, Sub and their counsel shall be given the opportunity to\nreview and comment on the Schedule 14D-9 and any amendment thereto before filing\nwith the SEC. In addition, the Company agrees to provide Parent, Sub and their\ncounsel in writing with any comments that the Company or its counsel may receive\nfrom time to time from the SEC or its staff with respect to the Schedule 14D-9\npromptly after receipt of such comments, and to consult with Parent, Sub and\ntheir counsel prior to responding to any such comments.\n\n          (b) In connection with the Offer, the Company shall promptly furnish\nor cause to be furnished to Parent or Sub mailing labels, security position\nlistings and all available listings and computer files containing the names and\naddresses of the record and beneficial holders of the Shares as of a recent\ndate, and shall promptly furnish Parent or Sub with such additional information\nand assistance (including, but not limited to, lists of holders of the Shares,\nupdated periodically, and their addresses, mailing labels and lists of security\npositions) as Parent or Sub or its agent(s) may reasonably request for the\npurpose of communicating the Offer to the record and beneficial holders of the\nShares.\n\n          (c)  The Company hereby approves of and consents to the Offer and the\nMerger and represents and warrants that the Company's Board of Directors, at a\nmeeting duly called and held, has (i) unanimously, by those present at such\nmeeting of the Board of Directors, determined that this Agreement and the\ntransactions contemplated hereby, including the Offer \n\n\n                                       5\n\n\nand the Merger, are advisable and are fair to and in the best interests of the\nstockholders of the Company, (ii) unanimously, by those present at such meeting\nof the Board of Directors, approved and adopted this Agreement and the\ntransactions contemplated hereby, including the Offer and the Merger, in a\nmanner which constitutes a directors' action (as defined in Section 141(b) of\nthe DGCL), (iii) unanimously, by those present at such meeting of the Board of\nDirectors, determined to terminate the TMP Agreement in accordance with its\nterms pursuant to Section 7.1(f) thereof, and (iv) unanimously, by those present\nat such meeting of the Board of Directors, resolved to recommend that the\nstockholders of the Company accept the Offer, tender their Shares to Parent\nthereunder and approve and adopt this Agreement and the Merger (the\nrecommendations referred to in this clause (iv) are collectively referred to in\nthis Agreement as the \"RECOMMENDATIONS\"). The Company hereby consents to the\ninclusion in the Offer Documents of the Recommendations and approval of the\nBoard of Directors described in the immediately preceding sentence, and the\nCompany shall not permit the Recommendations and approval of the Company's Board\nof Directors or any component thereof to be modified in any manner adverse to\nParent or Sub or to be withdrawn by the Company's Board of Directors or any\ncommittee thereof, except as provided, and only to the extent set forth, in\nSection 5.1(b) hereof.\n\n     Section 1.3 DIRECTORS.\n\n          (a) Effective upon the acceptance of any Shares for payment by Parent\nor Sub or any of its affiliates pursuant to the Offer (the \"APPOINTMENT TIME\"),\nParent shall be entitled to elect or designate such number of directors, rounded\nup to the next whole number, on the Company Board of Directors as is equal to\nthe product of the total number of directors on the Company Board of Directors\n(giving effect to the directors elected or designated by Parent pursuant to this\nsentence) multiplied by the percentage that the aggregate number of Shares\nbeneficially owned by Sub, Parent and any of their affiliates bears to the total\nnumber of Shares then outstanding. The Company shall, upon Parent's request,\npromptly increase the size of the Company Board of Directors, including by\namending the Bylaws of the Company if necessary so as to increase the size of\nthe Company Board of Directors, or promptly secure the written resignations of\nsuch number of its incumbent directors, or both, as is necessary to enable\nParent's designees to be so elected or designated to the Company Board of\nDirectors, and shall use its reasonable best efforts to cause Parent's designees\nto be so elected or designated at such time. At the Appointment Time, the\nCompany shall, upon Parent's request, also cause persons elected or designated\nby Parent to constitute the same percentage (rounded up to the next whole\nnumber) as is on the Company Board of Directors of (i) each committee of the\nCompany Board of Directors; (ii) each board of directors (or similar body) of\neach of the Company's Subsidiaries; and (iii) each committee (or similar body)\nof each such board, in each case only to the extent permitted by applicable Law\nor the rules of any stock exchange or trading market on which the Company's\ncommon stock is listed or traded after giving effect to the foregoing changes to\nthe composition of the Company's Board of Directors. The Company's obligations\nunder this Section 1.3(a) shall be subject to Section 14(f) of the Exchange Act\nand Rule 14f-l promulgated thereunder. The Company shall promptly upon execution\nof this Agreement take all actions required pursuant to such Section 14(f) and\nRule 14f-l in order to fulfill its obligations under this Section 1.3(a),\nincluding, but not limited to, mailing to record and beneficial holders of the\nShares as of a recent date (together with the Schedule 14D-9) the information\nrequired by Section 14(f) and Rule 14f-l as is necessary to enable Parent's\ndesignees to be elected or designated to the Company Board of Directors. Parent\nor Sub shall supply the Company, in writing, and be solely responsible for\n\n\n                                       6\n\n\ninformation with respect to either of them and their nominees, officers,\ndirectors and affiliates to the extent required by Section 14(f) and Rule 14f-l.\nThe provisions of this Section 1.3(a) are in addition to and shall not limit any\nrights that any of Sub, Parent or any of their respective affiliates may have as\na holder or beneficial owner of Shares as a matter of law with respect to the\nelection of directors or otherwise.\n\n          (b) In the event that Parent's designees are elected or designated to\nthe Company Board of Directors, then, until the Effective Time, the Company\nshall cause the Company Board of Directors to have at least two (2) directors\nwho are directors on the date hereof including at least two (2) members who are\nindependent directors for purposes of the continued listing requirements of the\nNasdaq National Market (the \"INDEPENDENT DIRECTORS\"), provided, however, that if\nany Independent Director is unable to serve due to death or disability, the\nremaining Independent Directors shall be entitled to elect or designate another\nperson (or persons) who serves as a director on the date hereof to fill such\nvacancy, and such person (or persons) shall be deemed to be an Independent\nDirector for purposes of this Agreement. If no Independent Director then\nremains, the other directors shall designate two (2) persons who are directors\non the date hereof (or, in the event there shall be less than two (2) directors\navailable to fill such vacancies as a result of such persons' deaths,\ndisabilities or refusals to serve, such smaller number of persons who are\ndirectors on the date hereof) to fill such vacancies and such persons shall be\ndeemed Independent Directors for purposes of this Agreement. Notwithstanding\nanything in this Agreement to the contrary, if Parent's designees constitute a\nmajority of the Company Board of Directors after the acceptance for payment of\nShares pursuant to the Offer and prior to the Effective Time, then the\naffirmative vote of a majority of the Independent Directors (or if only one\nexists, then the vote of such Independent Director) shall be required to (i)\namend or terminate this Agreement by the Company; (ii) exercise or waive any of\nthe Company's rights, benefits or remedies hereunder, if such action would\nadversely affect holders of Shares other than Parent or Sub; (iii) amend the\nCertificate of Incorporation or Bylaws of the Company if such action would\nadversely affect holders of Shares other than Parent or Sub; or (iv) take any\nother action of the Company Board of Directors under or in connection with this\nAgreement if such action would adversely affect holders of Shares other than\nParent or Sub; provided, however, that if there shall be no Independent\nDirectors as a result of such persons' deaths, disabilities or refusal to serve,\nthen such actions may be effected by majority vote of the entire Board of\nDirectors of the Company.\n\n     Section 1.4 THE MERGER.\n\n          Upon the terms and subject to the conditions set forth in this\nAgreement, and in accordance with the Delaware General Corporation Law (the\n\"DGCL\"), the Forward Merger shall be effected and the Company shall be merged\nwith and into Sub at the Effective Time with the separate corporate existence of\nthe Company ceasing and Sub continuing as the surviving corporation; provided,\nhowever, that if Parent does not obtain the Tax Opinion (as defined herein),\nthen the Reverse Merger shall be effected, with the separate corporate existence\nof Sub (or another direct or indirect wholly-owned subsidiary of Parent, as\ndetermined by Parent in its sole discretion) ceasing and the Company continuing\nas the surviving corporation. The surviving corporation of the Forward Merger or\nthe Reverse Merger, as the case may be, shall be herein referred as the\n\"SURVIVING CORPORATION\" and the Forward Merger and Reverse Merger shall\ncollectively be referred to as the \"MERGER\". The Surviving Corporation shall\nbecome a direct or \n\n\n                                       7\n\n\nindirect wholly owned subsidiary of Parent and shall succeed to and assume all \nthe rights and obligations of Sub and the Company in accordance with the DGCL.\n\n     Section 1.5 CLOSING.\n\n          The closing of the Merger (the \"CLOSING\") will take place at 10:00\na.m. on a date to be specified by the parties (the \"CLOSING DATE\"), which shall\nbe no later than the second Business Day after satisfaction or waiver (subject\nto applicable Law) of the conditions set forth in Article VI (other than those\nconditions that by their nature are to be satisfied at the Closing, but subject\nto the satisfaction or waiver of those conditions), at the offices of Skadden,\nArps, Slate, Meagher &amp; Flom LLP, 525 University Ave., Ste. 1100, Palo Alto,\nCalifornia, unless another date or place is agreed to by the parties hereto.\n\n     Section 1.6 EFFECTIVE TIME.\n\n          Subject to the provisions of this Agreement, as soon as practicable\non the Closing Date, the parties shall file a certificate of merger (the\n\"CERTIFICATE OF MERGER\") executed in accordance with the relevant provisions of\nthe DGCL and shall make all other filings or recordings required under the DGCL.\nThe Merger shall become effective at such time as the Certificate of Merger is\nduly filed with the Secretary of State of the State of Delaware, or at such\nother time as Parent and the Company shall agree and specify in the Certificate\nof Merger (the time the Merger becomes effective being the \"EFFECTIVE TIME\").\n\n     Section 1.7 CERTIFICATE OF INCORPORATION AND BYLAWS.\n\n          (a)  The Certificate of Incorporation of Sub, as in effect immediately\nprior to the Effective Time, shall be the Certificate of Incorporation of the\nSurviving Corporation until thereafter amended as provided therein or by\napplicable Law.\n\n          (b) The Bylaws of Sub, as in effect immediately prior to the Effective\nTime, shall be the Bylaws of the Surviving Corporation until thereafter amended\nas provided therein or by applicable Law.\n\n     Section 1.8 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.\n\n          (a) The directors of Sub immediately prior to the Effective Time shall\nbe the directors of the Surviving Corporation, until the earlier of their\nresignation or removal or until their respective successors are duly elected and\nqualified, as the case may be.\n\n          (b) The officers of the Company immediately prior to the Effective\nTime shall be the officers of the Surviving Corporation, until the earlier of\ntheir resignation or removal or until their respective successors are duly\nelected and qualified, as the case may be.\n\n     Section 1.9 EFFECTS OF THE MERGER.\n\n          At and after the Effective Time, the Merger shall have the effects\nset forth in the DGCL. Without limiting the generality of the foregoing, and\nsubject thereto, at the Effective T\n\n\n                                       8\n\n\nime all the property, rights, privileges, powers and franchises of the Company \nand Sub shall be vested in the Surviving Corporation, and all debts, liabilities\nand duties of the Company and Sub shall become the debts, liabilities and duties\nof the Surviving Corporation.\n\n     Section 1.10 SUBSEQUENT ACTIONS.\n\n            If at any time after the Effective Time the Surviving Corporation\nshall determine, in its sole discretion, or shall be advised, that any deeds,\nbills of sale, assignments, assurances or any other actions or things are\nnecessary or desirable to vest, perfect or confirm of record or otherwise in the\nSurviving Corporation its right, title or interest in, to or under any of the\nrights, properties or assets of either of the Company or Sub acquired or to be\nacquired by the Surviving Corporation as a result of, or in connection with, the\nMerger or otherwise to carry out this Agreement, then the officers and directors\nof the Surviving Corporation shall be authorized to execute and deliver, in the\nname and on behalf of either the Company or Sub, all such deeds, bills of sale,\ninstruments of conveyance, assignments and assurances and to take and do, in the\nname and on behalf of each such corporation or otherwise, all such other actions\nand things as may be necessary or desirable to vest, perfect or confirm any and\nall right, title or interest in, to and under such rights, properties or assets\nin the Surviving Corporation or otherwise to carry out this Agreement.\n\n                                   ARTICLE II\n\n                    EFFECT OF THE MERGER ON THE CAPITAL STOCK\n            OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES\n\n     Section 2.1 EFFECT ON CAPITAL STOCK. As of the Effective Time, by virtue of\nthe Merger and without any action on the part of the holder of any Shares or any\nshares of capital stock of Parent or Sub:\n\n          (a) Capital Stock of Sub. In the event of a Forward Merger, each\nissued and outstanding share of capital stock of Sub shall remain as one validly\nissued, fully paid and nonassessable share of common stock, par value $0.001, of\nthe Surviving Corporation. Notwithstanding the foregoing, in the event of a\nReverse Merger, then each issued and outstanding share of capital stock of Sub\n(or another direct or indirect wholly-owned Subsidiary of Parent, as determined\nby Parent in its sole discretion) shall be converted into and become one validly\nissued, fully paid and non-assessable share of common stock of the Surviving\nCorporation.\n\n          (b) Cancellation of Treasury Stock and Parent Owned Stock. Each Share\nthat is owned by the Company, Parent or Sub (except for Shares that are owned by\nSub, in the event of a Reverse Merger) shall automatically be canceled and\nretired and shall cease to exist, and no Parent Common Stock or other\nconsideration shall be delivered in exchange therefor.\n\n          (c)Conversion of Company Common Stock.\n\n               (i)Each Share issued and outstanding immediately prior to the\nEffective Time (other than Shares to be canceled in accordance with Section\n2.1(b) and other \n\n\n                                       9\n\n\nthan Shares owned by Sub in the event of a Reverse Merger) shall be converted \ninto the right to receive the Exchange Offer Consideration (the \"MERGER \nCONSIDERATION\").\n\n               (ii) As of the Effective Time, all such Shares shall no longer be\noutstanding and shall automatically be canceled and retired and shall cease to\nexist, and each holder of a certificate which immediately prior to the Effective\nTime represented any such Shares shall cease to have any rights with respect\nthereto, except the right to receive the Merger Consideration upon surrender of\nsuch certificate in accordance with Section 2.2, without interest.\nNotwithstanding the foregoing, if between the date of this Agreement and the\nEffective Time the outstanding shares of Parent Common Stock or Company Common\nStock shall have been changed into a different number of shares or a different\nclass, by reason of the occurrence or record date of any stock dividend,\nsubdivision, reclassification, recapitalization, split, combination, exchange of\nshares or similar transaction, the Merger Consideration shall be appropriately\nadjusted to reflect such stock dividend, subdivision, reclassification,\nrecapitalization, split, combination, exchange or similar transaction (without\nduplication of any adjustments made pursuant to Section 1.1(a)).\n\n               (iii) Notwithstanding anything expressed or implied to the\ncontrary in this Agreement, appropriate modifications shall be made to the\nprovisions of this Agreement (including, without limitation, this Section 2.1)\nin the event of a Reverse Merger.\n\n     Section 2.2 EXCHANGE OF CERTIFICATES.\n\n          (a) Exchange Agent. As of the Effective Time, Parent shall deposit\nwith Equiserve, L.P. or such other bank or trust company as may be designated by\nParent (the \"EXCHANGE AGENT\") and which shall be reasonably acceptable to the\nCompany, for the benefit of the holders of Shares, for exchange in accordance\nwith this Article II, through the Exchange Agent, certificates representing the\nshares of Parent Common Stock and cash (such shares of Parent Common Stock and\ncash, together with any dividends or distributions with respect thereto with a\nrecord date after the Effective Time and any cash payments in lieu of any\nfractional shares of Parent Common Stock, being hereinafter referred to as the\n\"EXCHANGE FUND\") issuable and payable pursuant to Section 2.1 in exchange for\nShares. Parent agrees to make available to the Exchange Agent from time to time,\nas needed, cash sufficient to pay cash in lieu of fractional shares pursuant to\nSection 2.2(e) and any dividends and other distributions pursuant to Section\n2.2(c).\n\n          (b) Exchange Procedures. As soon as reasonably practicable after the\nEffective Time, Parent shall cause the Exchange Agent to mail to each holder of\nrecord of a certificate or certificates which immediately prior to the Effective\nTime represented outstanding Shares (the \"CERTIFICATES\") whose shares were\nconverted into the right to receive the Merger Consideration pursuant to Section\n2.1(c), (i) a letter of transmittal (which shall specify that delivery shall be\neffected, and risk of loss and title to the Certificates shall pass, only upon\ndelivery of the Certificates to the Exchange Agent and shall be in such form and\nhave such other provisions as Parent may reasonably specify and shall be\nreasonably acceptable to the Company) and (ii) instructions for use in\nsurrendering the Certificates in exchange for the Merger Consideration. Upon\nsurrender of a Certificate for cancellation to the Exchange Agent, together with\nsuch letter of transmittal, duly executed, and such other documents as may\nreasonably be \n\n\n                                       10\n\n\nrequired by the Exchange Agent, the holder of such Certificate shall be entitled\nto receive in exchange therefor (x) a certificate representing that number of\nwhole shares of Parent Common Stock which such holder has the right to receive\npursuant to the provisions of this Article II after taking into account all the\nShares then held by such holder under all such Certificates so surrendered, (y)\ncash which such holder has the right to receive pursuant to the provisions of\nthis Article II after taking into account all the Shares then held by such\nholder under all such Certificates so surrendered (together with cash in lieu of\nfractional shares of Parent Common Stock to which such holder is entitled\npursuant to Section 2.2(e)), and (z) any dividends or other distributions to\nwhich such holder is entitled pursuant to Section 2.2(c) (in each case after\ngiving effect to any required withholding taxes), and the Certificate so\nsurrendered shall forthwith be canceled. In the event of a transfer of ownership\nof Company Common Stock which is not registered in the transfer records of the\nCompany, a certificate representing the proper number of shares of Parent Common\nStock may be issued to a Person other than the Person in whose name the\nCertificate so surrendered is registered, if, upon presentation to the Exchange\nAgent, such Certificate shall be properly endorsed or otherwise be in proper\nform for transfer and the Person requesting such issuance shall pay any transfer\nor other taxes required by reason of the issuance of shares of Parent Common\nStock to a Person other than the registered holder of such Certificate or\nestablish to the reasonable satisfaction of Parent that such tax has been paid\nor is not applicable. Notwithstanding anything to the contrary contained herein,\nno certificate representing Parent Common Stock or cash (including in lieu of a\nfractional share interest) shall be delivered to a Person who is an \"affiliate\"\n(as contemplated by Section 5.10 hereof) of the Company unless such affiliate\nhas theretofore executed and delivered to Parent the agreement referred to in\nSection 5.10. Until surrendered as contemplated by this Section 2.2(b), each\nCertificate shall be deemed at any time after the Effective Time to represent\nonly the right to receive upon such surrender the Merger Consideration, cash in\nlieu of any fractional shares of Parent Common Stock as contemplated by Section\n2.2(e) and any dividends or other distributions to which such holder is entitled\npursuant to Section 2.2(c). No interest will be paid or will accrue on any cash\npayable to holders of Certificates.\n\n          (c) Distributions with Respect to Unexchanged Shares. No dividends or\nother distributions with respect to Parent Common Stock with a record date after\nthe Effective Time shall be paid to the holder of any unsurrendered Certificate\nwith respect to the shares of Parent Common Stock represented thereby, and no\ncash payment in lieu of fractional shares shall be paid to any such holder\npursuant to Section 2.2(e) until the holder of record of such Certificate shall\nsurrender such Certificate in accordance with this Article II. Subject to the\neffect of applicable escheat or similar laws, following surrender of any such\nCertificate, there shall be paid to the record holder of the certificate\nrepresenting whole shares of Parent Common Stock issued in exchange therefor,\nwithout interest, (i) at the time of such surrender, the amount of any cash\npayable in lieu of a fractional share of Parent Common Stock to which such\nholder is entitled pursuant to Section 2.2(e) and the amount of dividends or\nother distributions with a record date after the Effective Time theretofore paid\nwith respect to such whole shares of Parent Common Stock, less the amount of any\nwithholding taxes which may be required thereon, and (ii) at the appropriate\npayment date, the amount of dividends or other distributions with a record date\nafter the Effective Time but prior to such surrender and a payment date\nsubsequent to such surrender payable with respect to such whole shares of Parent\nCommon Stock, less the amount of any withholding taxes which may be required\nthereon.\n\n\n                                       11\n\n\n          (d) No Further Ownership Rights in Company Common Stock. All shares of\nParent Common Stock issued upon the surrender for exchange of Certificates in\naccordance with the terms of this Article II (including any cash paid pursuant\nto Section 2.2(c) or Section 2.2(e)) shall be deemed to have been issued (and\npaid) in full satisfaction of all rights pertaining to the Shares previously\nrepresented by such Certificates, subject, however, to the Surviving\nCorporation's obligation to pay any dividends or make any other distributions\nwith a record date prior to the Effective Time which may have been declared or\nmade by the Company on such Shares in accordance with the terms of this\nAgreement or prior to the date of this Agreement and which remain unpaid at the\nEffective Time.\n\n          (e) No Fractional Shares. \n\n               (i) No certificates or scrip representing fractional shares of\nParent Common Stock shall be issued upon the surrender for exchange of\nCertificates, no dividend or distribution of Parent shall relate to such\nfractional share interests and such fractional share interests will not entitle\nthe owner thereof to vote or to any rights of a stockholder of Parent.\n\n               (ii) Notwithstanding any other provision of this Agreement, each\nholder of Shares exchanged pursuant to the Offer or the Merger who would\notherwise have been entitled to receive a fraction of a share of Parent Common\nStock (after taking into account all Certificates delivered by such holder)\nshall receive, in lieu thereof, cash (without interest) in an amount, less the\namount of any withholding taxes, as contemplated by Section 2.2(f), which are\nrequired to be withheld with respect thereto, equal to the product of (A) such\nfractional part of a share and (B) Parent Market Price.\n\n          (f) Withholding Rights. Each of the Surviving Corporation and Parent\nshall be entitled to deduct and withhold from the consideration otherwise\npayable pursuant to this Agreement to any holder of Shares such amounts as it is\nrequired to deduct and withhold with respect to the making of such payment under\nthe Code, or any provision of state, local or foreign tax law. To the extent\nthat amounts are so withheld by the Surviving Corporation or Parent, as the case\nmay be, such withheld amounts shall be treated for all purposes of this\nAgreement as having been paid to the holder of the Shares in respect of which\nsuch deduction and withholding was made by the Surviving Corporation or Parent,\nas the case may be.\n\n          (g) Termination of Exchange Fund. Any portion of the Exchange Fund\nwhich remains undistributed to the holders of the Certificates for six (6)\nmonths after the Effective Time shall be delivered to Parent, upon demand, and\nany holders of the Certificates who have not theretofore complied with this\nArticle II shall thereafter look only to Parent for, and Parent shall remain\nliable for, payment of their claim for Merger Consideration, any cash in lieu of\nfractional shares of Parent Common Stock and any dividends or distributions with\nrespect to Parent Common Stock. Any such portion of the Exchange Fund remaining\nunclaimed by holders of Shares immediately prior to such time as such amounts\nwould otherwise escheat to or become property of any Governmental Entity shall,\nto the extent permitted by applicable Law, become the property of the Surviving\nCorporation free and clear of any claims or interest of any Person previously\nentitled thereto.\n\n\n                                       12\n\n\n          (h) No Liability. None of Parent, Sub, the Company or the Exchange\nAgent shall be liable to any Person in respect of any shares of Parent Common\nStock (or dividends or distributions with respect thereto) or cash in lieu of\nfractional shares of Parent Common Stock or cash from the Exchange Fund, in each\ncase delivered to a public official pursuant to any applicable abandoned\nproperty, escheat or similar law.\n\n          (i) Investment of Exchange Fund. The Exchange Agent shall invest cash\nincluded in the Exchange Fund, as directed by Parent, on a daily basis, provided\nthat no such investment or loss thereon shall affect the amounts payable or the\ntiming of the amounts payable pursuant to the provisions of this Article II. Any\ninterest and other income resulting from such investments shall be paid to\nParent.\n\n          (j) Lost Certificates. If any Certificate shall have been lost, stolen\nor destroyed, upon the making of an affidavit of that fact by the Person\nclaiming such Certificate to be lost, stolen or destroyed and, if required by\nthe Surviving Corporation, the posting by such Person of a bond in such\nreasonable amount as the Surviving Corporation may direct as indemnity against\nany claim that may be made against it with respect to such Certificate, the\nExchange Agent will issue in exchange for such lost, stolen or destroyed\nCertificate the Merger Consideration and any cash in lieu of fractional shares,\nand unpaid dividends and distributions on shares of Parent Common Stock\ndeliverable in respect thereof, in each case pursuant to this Agreement.\n\n          (k) Stock Transfer Books. The stock transfer books of the Company\nshall be closed immediately upon the Effective Time and there shall be no\nfurther registration of transfers of Shares thereafter on the records of the\nCompany. On or after the Effective Time, any Certificates presented to the\nExchange Agent or the Surviving Corporation for any reason shall be converted\ninto the Merger Consideration with respect to the Shares formerly represented\nthereby (including any cash in lieu of fractional shares of Parent Common Stock\nto which the holders thereof are entitled pursuant to Section 2.2(e)) and any\ndividends or other distributions to which the holders thereof are entitled\npursuant to Section 2.2(c).\n\n     Section 2.3 DISSENTING SHARES.\n\n          (a) Notwithstanding anything in this Agreement to the contrary, Shares\noutstanding immediately prior to the Effective Time and held by a holder who has\nnot voted in favor of the Merger or consented thereto in writing and who has\ncomplied with Section 262 of the DGCL (the \"DISSENTING SHARES\") shall not be\nconverted into a right to receive the Merger Consideration, unless such holder\nfails to perfect or withdraws or otherwise loses his or her right to appraisal.\nA holder of Dissenting Shares shall be entitled to receive payment of the\nappraised value of such Shares held by him or her in accordance with Section 262\nof the DGCL, unless, after the Effective Time, such holder fails to perfect or\nwithdraws or loses his or her right to appraisal, in which case such Shares\nshall be converted into and represent only the right to receive the Merger\nConsideration, without interest thereon, upon surrender of the Certificate or\nCertificates representing such Shares, pursuant to Section 2.2.\n\n          (b) The Company shall give Parent (i) prompt notice of any written\ndemands for appraisal of any Shares, attempted withdrawals of such demands and\nany other instruments \n\n\n                                       13\n\n\nserved pursuant to the DGCL and received by the Company relating to rights of\nappraisal; and (ii) the opportunity to participate in the conduct of all\nnegotiations and proceedings with respect to demands for appraisal under the\nDGCL. Except with the prior written consent of Parent, the Company shall not\nvoluntarily make any payment with respect to any demands for appraisal or settle\nor offer to settle any such demands for appraisal.\n\n                                  ARTICLE III\n\n                         REPRESENTATIONS AND WARRANTIES\n\n     Section 3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as\nexpressly set forth in the Filed Company SEC Documents filed since December 31,\n2000 or on the disclosure memorandum delivered by the Company to Parent\nimmediately prior to the execution of this Agreement and initialed on behalf of\nParent and the Company, which disclosure memorandum specifies the section or\nsubsection of this Agreement to which the exception relates (the \"COMPANY\nDISCLOSURE MEMORANDUM\"), the Company represents and warrants to Parent and Sub\nas follows:\n\n          (a) Organization, Standing and Corporate Power. Each of the Company\nand each of its Significant Subsidiaries is a corporation duly organized,\nvalidly existing and, to the extent applicable, in good standing under the laws\nof the jurisdiction in which it is organized and has all requisite corporate\npower and authority to own, lease and operate its properties and to carry on its\nbusiness as now being conducted. Each of the Company and each of its Significant\nSubsidiaries is duly qualified or licensed to do business and, to the extent\napplicable, is in good standing in each jurisdiction in which the nature of its\nbusiness or the ownership, leasing or operation of its properties makes such\nqualification or licensing necessary, other than in such jurisdictions where the\nfailure to be so qualified or licensed individually or in the aggregate would\nnot reasonably be expected to have a Material Adverse Effect on the Company. The\nCompany has made available to Parent prior to the execution of this Agreement\ncomplete and correct copies of its Certificate of Incorporation and Bylaws, and\nthe comparable organizational documents of each of its Significant Subsidiaries,\nin each case as amended to the date hereof.\n\n          (b) Subsidiaries. All the outstanding shares of capital stock of, or\nother equity interests in, each Subsidiary have been validly issued and are\nfully paid and nonassessable and are owned directly or indirectly by the Company\nfree and clear of all Liens, and free of any restriction on the right to vote,\nsell or otherwise dispose of such capital stock or other ownership interests.\nOther than such Subsidiaries of the Company, neither the Company nor any\nSubsidiary owns a greater than twenty percent (20%) equity interest or similar\ninterest in, or any interest convertible into or exchangeable or exercisable for\na greater than twenty percent (20%) equity or similar interest in, any Person.\nNeither the Company nor any of its Subsidiaries is subject to any obligation or\nrequirement to make any material loan, capital contribution investment or\nsimilar expenditure to or in any Person in excess of $500,000 individually or\n$1,000,000 to all Persons, except for loans, capital contributions, investments\nor similar expenditures by the Company or any of its Subsidiaries to any of the\nCompany's Subsidiaries. Except as provided by applicable Law, there are no\nrestrictions of any kind which prevent the payment of dividends by any\nSubsidiary.\n\n\n                                       14\n\n\n          (c) Capital Structure. The authorized capital stock of the Company\nconsists of 100,000,000 shares of Company Common Stock and 10,000,000 shares of\npreferred stock, par value $.01 per share (\"COMPANY PREFERRED STOCK\"). At the\nclose of business on December 20, 2001, (i) 38,766,678 shares of Company Common\nStock were issued and outstanding, none of which shares are subject to\nrestrictions (other than with respect to Rule 144 of the Securities Act) or\nforfeiture risks, (ii) no shares of Company Common Stock were held by the\nCompany in its treasury, (iii) 5,623,424 shares of Company Common Stock were\nissuable pursuant to outstanding Company Stock Options, and (iv) no shares of\nCompany Preferred Stock were issued or outstanding. Since December 20, 2001,\nexcept as permitted by Section 4.1(a)(ii) of this Agreement, (i) there have been\nno issuances of capital stock of the Company (or securities convertible into or\nexchangeable or exercisable for such capital stock) other than issuances of\nCompany Common Stock pursuant to the exercise of options outstanding on December\n20, 2001 under Company Stock Plans, and (ii) no options, warrants, securities\nconvertible into, or commitments with respect to the issuance of shares of\nCompany Common Stock have been issued, granted or made. All outstanding shares\nof capital stock of the Company are, and all shares which may be issued pursuant\nto the Company Stock Plans will be, when issued in accordance with the terms\nthereof, duly authorized, validly issued, fully paid and nonassessable and not\nsubject to preemptive rights. There are no bonds, debentures, notes or other\nindebtedness of the Company having the right to vote (or convertible into, or\nexchangeable for, securities having the right to vote) on any matters on which\nstockholders of the Company may vote. Except (i) as set forth above in this\nSection 3.1(c), and (ii) for shares of Company Common Stock reserved for\nissuance under any plan or arrangement providing for the grant of options to\npurchase shares of Company Common Stock to current or former officers,\ndirectors, employees or consultants of the Company or its Subsidiaries or\nresulting from the issuance of shares of Company Common Stock pursuant to Stock\nOptions outstanding as of the close of business on December 20, 2001, (x) there\nare not issued, issuable, reserved for issuance or outstanding (A) any shares of\ncapital stock or other voting securities of the Company, (B) any securities of\nthe Company convertible into or exchangeable or exercisable for shares of\ncapital stock or voting securities of the Company, (C) any warrants, calls,\noptions or other rights to acquire from the Company or any Subsidiary of the\nCompany, and no obligation of the Company or any Subsidiary of the Company to\nissue, any capital stock, voting securities or securities convertible into or\nexchangeable or exercisable for capital stock or voting securities of the\nCompany or (D) stock appreciation rights or rights to receive shares of Company\nCommon Stock on a deferred basis granted under the Company Stock Plans or\notherwise; and (y) there are not any outstanding obligations of the Company or\nany Subsidiary of the Company to repurchase, redeem or otherwise acquire any\nsuch securities or to issue, deliver or sell, or cause to be issued, delivered\nor sold, any such securities. Neither the Company nor any Subsidiary is a party\nto any voting agreement with respect to the voting of any such securities.\nExcept as set forth in this Section 3.1(c), there are no issued, issuable,\nreserved for issuance or outstanding (A) securities of the Company or any\nSubsidiary of the Company convertible into or exchangeable or exercisable for\nshares of capital stock or other voting securities or ownership interests in any\nSubsidiary of the Company, (B) warrants, calls, options or other rights to\nacquire from the Company or any Subsidiary of the Company, and no obligation of\nthe Company or any Subsidiary of the Company to issue, any capital stock, voting\nsecurities or other ownership interests in, or any securities convertible into\nor exchangeable or exercisable for any capital stock, voting securities or\nownership interests in, any Subsidiary of the Company or (C) obligations of the\nCompany or \n\n\n                                       15\n\n\nany Subsidiary of the Company to repurchase, redeem or otherwise acquire any \nsuch outstanding securities of Subsidiaries of the Company or to issue, deliver \nor sell, or cause to be issued, delivered or sold, any such securities. Except \nas set forth above in this Section 3.1(c), neither the Company nor any \nSubsidiary is a party to or bound by any agreement regarding any securities of \nthe Company or any Subsidiary of the Company.\n\n          (d) Authority; Noncontravention. The Company has the requisite\ncorporate power and authority to enter into this Agreement and to consummate the\ntransactions contemplated by this Agreement. The execution and delivery of this\nAgreement by the Company and the consummation by the Company of the transactions\ncontemplated by this Agreement have been duly authorized by all necessary\ncorporate action on the part of the Company and no other corporate proceedings\non the part of the Company are necessary to authorize this Agreement or to\nconsummate the transactions contemplated hereby, subject, in the case of the\nMerger, to receipt of the Company Stockholder Approval (if required by\napplicable Law to consummate the Merger) and the filing of the Certificate of\nMerger. The Board of Directors of the Company has unanimously, by those present\nat such meeting of the Board of Directors, approved this Agreement, determined\nthat this Agreement and the transactions contemplated hereby are fair to and in\nthe best interests of the Company and its stockholders and declared that the\nMerger is advisable, provided that after the date hereof, the Board of Directors\nof the Company may withdraw its recommendation as provided in Section 4.2\nhereof. Assuming that the representation of Parent contained in Section 3.2(i)\nis correct, the Board of Directors of the Company has taken all action necessary\nto render inapplicable, as it relates to the execution, delivery and performance\nof this Agreement and the Stockholder Agreement and the consummation of the\nOffer and the Merger and the other transactions contemplated hereby and thereby,\nSection 203 of the DGCL. To the Company's Knowledge, except for Section 203 of\nthe DGCL (the restrictions of which have been rendered inapplicable), no state\ntakeover statute is applicable to this Agreement, the Offer, the Merger, or the\nother transactions contemplated hereby or thereby. This Agreement has been duly\nexecuted and delivered by the Company and, assuming the due authorization,\nexecution and delivery by each of the other parties thereto, constitutes legal,\nvalid and binding obligations of the Company, enforceable against the Company in\naccordance with its terms (except insofar as enforceability may be limited by\napplicable bankruptcy, insolvency, reorganization, moratorium or other similar\nlaws affecting creditors' rights generally or by principles governing\navailability of equitable remedies). The execution and delivery of this\nAgreement does not, and the consummation of the Offer, the Merger and the other\ntransactions contemplated by this Agreement and compliance with the provisions\nof this Agreement will not, conflict with, or result in any violation of, or\ndefault (with or without notice or lapse of time, or both) under, or give rise\nto a right of termination, cancellation or acceleration of any obligation or to\nloss of a benefit under, or result in the creation of any pledge, claim, lien,\ncharge, encumbrance or security interest of any kind or nature whatsoever\n(collectively, \"LIENS\") in or upon any of the properties or assets of the\nCompany or any Subsidiary of the Company under, (i) the Company's Certificate of\nIncorporation or Bylaws or the comparable organizational documents of any of its\nSubsidiaries, (ii) any loan or credit agreement, bond, note, mortgage,\nindenture, lease or other contract, agreement, obligation, commitment,\narrangement, understanding, instrument, permit or license applicable to the\nCompany or any of its Subsidiaries or their respective properties or assets or\n(iii) subject to the governmental filings and other matters referred to in the\nfollowing paragraph, any (A) statute, law, ordinance, rule or regulation or (B)\njudgment, order or decree, in each case applicable to the \n\n\n                                       16\n\n\nCompany or any of its Subsidiaries or their respective properties or assets,\nother than, in the case of clauses (ii) and (iii), any such conflicts,\nviolations, defaults, rights, cancellations, accelerations, losses or Liens that\nindividually or in the aggregate would not reasonably be expected to have a\nMaterial Adverse Effect on the Company or to prevent or materially delay the\nconsummation of the transactions contemplated by this Agreement. No consent,\napproval, order or authorization of, action by or in respect of, or\nregistration, declaration or filing with, any supranational, national, state,\nmunicipal, local or foreign government, any instrumentality, subdivision, court,\nadministrative agency or commission or other authority thereof, or any\nquasi-governmental or private body exercising any regulatory, taxing, importing\nor other governmental or quasi-governmental authority (each, a \"GOVERNMENTAL\nENTITY\") is required by or with respect to the Company or any of its\nSubsidiaries in connection with the execution and delivery of this Agreement by\nthe Company or the consummation by the Company of the Offer, the Merger or the\nother transactions contemplated by this Agreement, except for (1) the filing of\na pre-merger notification and report form by the Company under the\nHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the \"HSR ACT\")\nand any applicable filings and approvals under similar foreign antitrust laws\nand regulations, (2) the filing with the SEC of (A) a proxy statement relating\nto the meeting of the Company's stockholders to be held in connection with the\nMerger (as amended or supplemented from time to time, the \"PROXY STATEMENT\") and\n(B) such reports under Section 13(a), 13(d), 15(d) or 16(a) of Exchange Act, as\nmay be required in connection with this Agreement and the transactions\ncontemplated by this Agreement, (3) the filing of the Certificate of Merger with\nthe Secretary of State of the State of Delaware and appropriate documents with\nthe relevant authorities of other states in which the Company is qualified to do\nbusiness, (4) such filings with Governmental Entities to satisfy the applicable\nrequirements of state securities or \"blue sky\" law and (5) such other consents,\napprovals, orders, authorizations, registrations, declarations and filings the\nfailure of which to be obtained or made individually or in the aggregate would\nnot reasonably be expected to have a Material Adverse Effect on the Company or\nto prevent or materially delay the consummation of the transactions contemplated\nby this Agreement.\n\n          (e) Company SEC Documents. The Company has timely filed all reports,\nschedules, forms, statements and other documents (including exhibits and other\ninformation incorporated therein) with the SEC required to be filed by the\nCompany since January 1, 1999 (the \"COMPANY SEC DOCUMENTS\"). No Company\nSubsidiary is required to file any form, report, registration statement,\nprospectus or other document with the SEC. As of their respective dates (and, if\namended or superseded by a filing prior to the date of this Agreement or the\nClosing Date, then on the date of such filing), the Company SEC Documents\ncomplied in all material respects with the requirements of the Securities Act of\n1933, as amended, and the rules and regulations promulgated thereunder (the\n\"SECURITIES ACT\") or the Exchange Act, as the case may be, applicable to such\nCompany SEC Documents, and none of the Company SEC Documents contained any\nuntrue statement of a material fact or omitted to state a material fact required\nto be stated therein or necessary in order to make the statements therein, in\nlight of the circumstances under which they were made, not misleading. The\nCompany SEC Documents filed since December 31, 2000, together with any public\nannouncements in a news release issued by the Dow Jones news service, PR\nNewswire or any equivalent service (collectively, a \"DOW JONES NEWS RELEASE\")\nmade by the Company after the date hereof taken as a whole, as of the Effective\nTime will not contain any untrue statement of a material fact or omit to state a\nmaterial fact required to be stated therein or necessary to make the statements\ntherein, in light of the\n\n\n                                       17\n\n\ncircumstances existing as of the Effective Time, not misleading. The financial\nstatements (including the related notes) of the Company included in the Company\nSEC Documents, as of their respective dates, complied in all material respects\nwith applicable accounting requirements and the published rules and regulations\nof the SEC with respect thereto, were prepared in accordance with generally\naccepted accounting principles (\"GAAP\"), applied on a consistent basis during\nthe periods involved (except as may be indicated in the notes thereto) and\n(except as amended or superseded by a filing prior to the date of this\nAgreement) fairly presented the financial position of the Company and its\nconsolidated Subsidiaries as of the dates thereof and the consolidated results\nof their operations and cash flows for the periods then ended (subject, in the\ncase of unaudited statements, to normal year-end audit adjustments not material\nin amount). Except (i) as set forth in the Filed Company SEC Documents filed\nsince December 31, 2000 or (ii) for the transactions contemplated by this\nAgreement, neither the Company nor any of its Subsidiaries has any liabilities\nor obligations of any nature (whether accrued, absolute, contingent or\notherwise) which, individually or in the aggregate, would reasonably be expected\nto have a Material Adverse Effect on the Company. For purposes of this\nAgreement, a \"FILED COMPANY SEC DOCUMENT\" shall mean a Company SEC Document\nfiled by the Company and publicly available prior to the date of this Agreement.\n\n          (f) Information in the Form S-4, Proxy Statement, Offer Documents and\nSchedule 14D-9. None of the information to be supplied by the Company\nspecifically for inclusion or incorporation by reference in the registration\nstatement on Form S-4 to be filed with the SEC by Parent in connection with the\nissuance of Parent Common Stock in the Merger (the \"FORM S-4\") will, at the time\nthe Form S-4 is filed with the SEC, at any time it is supplemented or amended or\nat the time it becomes effective under the Securities Act, contain any untrue\nstatement of a material fact or omit to state any material fact required to be\nstated therein or necessary to make the statements therein, in light of the\ncircumstances under which they are made, not misleading and the Proxy Statement\nwill not, on the date it is first mailed to the Company's stockholders and at\nthe time of the Company Stockholders Meeting, contain any untrue statement of a\nmaterial fact or omit to state any material fact required to be stated therein\nor necessary in order to make the statements therein, in light of the\ncircumstances under which they are made, not misleading, except that no\nrepresentation or warranty is made by the Company with respect to statements\nmade or incorporated by reference therein based on information supplied by\nParent or Sub specifically for inclusion or incorporation by reference in the\nProxy Statement. The Proxy Statement will comply in all material respects with\nthe requirements of the Exchange Act, as applicable to the Company, except that\nno representation or warranty is made by the Company with respect to statements\nmade or incorporated by reference therein based on information supplied by\nParent or Sub specifically for inclusion or incorporation by reference in the\nProxy Statement. The information supplied by the Company expressly for inclusion\nin the Offer Documents will not contain any untrue statement of a material fact\nor omit to state any material fact required to be stated therein or necessary in\norder to make the statements therein, in light of the circumstances under which\nthey are made, not misleading. The Schedule 14D-9 will comply in all material\nrespects with the provisions of applicable federal securities laws and, on the\ndate filed with the SEC and on the date first published or sent or given to the\nstockholders, will not contain any untrue statement of a material fact or omit\nto state any material fact required to be stated therein or necessary in order\nto make the statements therein, in light of the circumstances under which they\nare made, not misleading, except that no representation or warranty is made by\nthe Company with respect to statements \n\n\n                                       18\n\n\nmade or incorporated by reference therein based on information supplied by \nParent or Sub specifically for inclusion or incorporation by reference in the \nSchedule 14D-9.\n\n          (g) Absence of Certain Changes or Events. Except as set forth in the\nFiled Company SEC Documents filed after December 31, 2000 and for transactions\nexpressly contemplated or permitted by this Agreement, since December 31, 2000\n(i) the Company and its Subsidiaries have conducted their businesses in the\nordinary course consistent with past practice and (ii) there has not been a\nMaterial Adverse Effect on the Company. Except as set forth in the Filed Company\nSEC Documents and for actions in the ordinary course of business, since December\n31, 2000, neither the Company nor any Company Subsidiary has taken any action,\nor failed to take any action, which if such action or failure occurred during\nthe period from the date of this Agreement to the Effective Time would\nconstitute a breach or violation of Section 4.1(a) (i), (ii), (iv), (vi),\n(viii), (ix), (xi), (xii), (xiii) or Section 5.12, and neither the Company nor\nany Company Subsidiary has authorized, or committed or agreed, to take any of\nsuch actions.\n\n          (h) Litigation. There is no suit, action or proceeding pending or, to\nthe Knowledge of the Company, overtly threatened against or affecting the\nCompany or any of its Subsidiaries or any of their respective properties that\nindividually or in the aggregate would reasonably be expected to have a Material\nAdverse Effect on the Company, nor is there any judgment, decree, injunction,\nrule, order, action, demand or requirement of any Governmental Entity or\narbitrator outstanding against, or, to the Knowledge of the Company, any\ninvestigation by any Governmental Entity involving, the Company or any of its\nSubsidiaries that individually or in the aggregate would reasonably be expected\nto have a Material Adverse Effect on the Company.\n\n          (i) Contracts. Except as set forth in Section 3.1(i)(A) of the Company\nDisclosure Memorandum or listed as an exhibit to the Company's Annual Report on\nForm 10-K for the year ended December 31, 2000, neither the Company nor any\nCompany Subsidiary is a party to, and none of their respective properties or\nassets are bound by, any \"material contract\" (as such term is defined in Item\n601(b)(10) of Regulation S-K of the SEC) (the contracts listed in Section 3.1(i)\nof the Company Disclosure Memorandum being referred to as the \"MATERIAL\nCONTRACTS\"). Each such Material Contract is a valid, binding and enforceable\nobligation of the Company or its Subsidiaries and, to the Company's Knowledge,\nof the other party or parties thereto, in accordance with its terms, and in full\nforce and effect, except where the failure to be valid, binding, enforceable and\nin full force and effect would not reasonably be expected to have a Material\nAdverse Effect on the Company and to the extent as may be limited by applicable\nbankruptcy, insolvency, moratorium or other laws affecting the enforcement of\ncreditors' rights generally or by general principles of equity. The Company has\nnot received any notice from any other party to any such Material Contract, and\notherwise has no Knowledge that such third party intends to terminate, or not\nrenew, any such Material Contract. As of the date hereof, the Company has made\navailable to Parent true and correct copies of all such contracts. Neither the\nCompany nor any of its Subsidiaries, and, to the Knowledge of the Company, no\nother party thereto, is in violation of or in default under (nor does there\nexist any condition which upon the passage of time or the giving of notice or\nboth would cause such a violation of or default under) any loan or credit\nagreement, bond, note, mortgage, indenture, lease or other contract, agreement,\nobligation, commitment, arrangement, understanding, instrument, permit or\nlicense to which it is a party or by which it or any of its properties or assets\nis bound, except for violations or defaults \n\n                                       19\n\n\nthat individually or in the aggregate would not reasonably be expected to have a\nMaterial Adverse Effect on the Company. Except as set forth in Section 3.1(i)(B)\nof the Company Disclosure Memorandum, neither the Company, its Subsidiaries nor,\nto the Company's Knowledge, any of its employees is a party to or otherwise\nbound by any agreement or covenant not to compete or by any agreement or\ncovenant restricting the development, marketing or distribution of the Company's\nor its Subsidiaries' products or services or the conduct of their businesses or\nby any agreement or covenant granting any exclusive rights whatsoever.\n\n          (j) Compliance with Laws. Each of the Company and its Subsidiaries is\nin compliance with all statutes, laws, ordinances, rules, regulations,\njudgments, orders and decrees of any Governmental Entity (other than\nEnvironmental Laws) (collectively, \"LEGAL PROVISIONS\") applicable to its\nbusiness or operations, except for instances of noncompliance that individually\nor in the aggregate would not reasonably be expected to have a Material Adverse\nEffect on the Company. Since January 1, 1998, neither the Company nor any of its\nSubsidiaries has received any written notice from any Governmental Entity\nregarding any actual or possible violation of, or failure to comply with, any\nLegal Provisions, except for such violations or failures to comply that\nindividually or in the aggregate would not reasonably be expected to have a\nMaterial Adverse Effect on the Company. Each of the Company and its Subsidiaries\nhas in effect all approvals, authorizations, certificates, filings, franchises,\nlicenses, notices, permits and rights of or with all Governmental Entities,\nincluding all authorizations under Environmental Laws (\"PERMITS\"), necessary for\nit to own, lease or operate its properties and assets and to carry on its\nbusiness and operations as now conducted, except for the failure to have such\nPermits that individually or in the aggregate would not reasonably be expected\nto have a Material Adverse Effect on the Company. There has occurred no default\nunder, or violation of, any such Permit, except for defaults under, or\nviolations of, Permits that individually or in the aggregate would not\nreasonably be expected to have a Material Adverse Effect on the Company. Neither\nthe Offer nor the Merger, in and of itself, would not cause the revocation or\ncancellation of any such Permit that individually or in the aggregate is\nreasonably likely to have a Material Adverse Effect on the Company. Except for\nthose matters that individually or in the aggregate would not reasonably be\nexpected to have a Material Adverse Effect on the Company: (A) each of the\nCompany and its Subsidiaries is, and has been, in compliance with all applicable\nEnvironmental Laws; (B) during the period of ownership or operation by the\nCompany or its Subsidiaries of any of its currently or previously owned, leased\nor operated properties, no Hazardous Material has been treated or disposed of,\nand there have been no Releases or threatened Releases of Hazardous Material at,\nin, on, under or affecting such properties or any contiguous site; (C) prior to\nthe period of ownership or operation by the Company or its Subsidiaries of any\nof its currently or previously owned, leased or operated properties, to the\nKnowledge of the Company, no Hazardous Material was treated, stored or disposed\nof, and there were no Releases of Hazardous Material at, in, on, under or\naffecting any such property or any contiguous site; and (D) neither the Company\nnor its Subsidiaries have received any written notice of, or entered into or\nassumed by contract, judicial or administrative settlement, or operation of law\nany indemnification obligation, order, settlement or decree relating to: (1) any\nviolation of any Environmental Laws or the institution or pendency of any suit,\naction, claim, proceeding or investigation by any Governmental Entity or any\nthird party in connection with any alleged violation of Environmental Laws or\nany Release of Hazardous Materials, (2) the response to or remediation of\nHazardous Material at or arising from any of the Company's or its Subsidiaries'\nactivities or properties or any other properties or (3) payment for any response\naction relating to or \n\n\n                                       20\n\n\nremediation of Hazardous Material at or arising from any of the Company's or its\nSubsidiaries' properties, activities, or any other properties. The term\n\"Environmental Laws\" means all applicable U.S., state, local and foreign laws,\nstatutes, treaties, rules, codes, ordinances, regulations, certificates, orders,\ndirectives, interpretations, licenses, permits and other authorizations of any\nGovernmental Entity and judgments, decrees, injunctions, writs, orders or like\naction of any court, arbitrator or other administrative, judicial or\nquasi-judicial tribunal or agency of competent jurisdiction, including any\nthereof of the European Community or the European Union having the force of law\nand being applicable to the Company or any of its Subsidiaries, dealing with the\nprotection of health, welfare or the environment, including, without limitation,\nflood, pollution or disaster laws and health and environmental protection laws\nand regulations, and all other rules and regulations promulgated thereunder and\nany provincial, municipal, water board or other local statute, law, rule,\nregulation or ordinance relating to public or employee health, safety or the\nenvironment; including all laws relating to Releases to air, water, land or\ngroundwater, relating to the withdrawal or use of groundwater, and relating to\nthe use, handling, transportation, manufacturing, introduction into the stream\nof commerce or disposal of Hazardous Materials. The term \"HAZARDOUS MATERIALS\"\nmeans any chemical, material, liquid, gas, substance or waste, whether naturally\noccurring or manmade, that is prohibited, limited or regulated by or pursuant to\nan Environmental Law applicable to the Company, any Company Subsidiary or their\nrespective properties. The term \"RELEASE\" means the spilling, leaking,\ndischarging, injecting, emitting and\/or disposing and placement of a Hazardous\nMaterial in any location that poses a threat thereof.\n\n          (k) Absence of Changes in Benefit Plans. There has not been, since\nDecember 31, 2000, any adoption or amendment in any material respect by the\nCompany or any of its Subsidiaries of any collective bargaining agreement or any\nBenefit Plan, or any material change in any actuarial or other assumption used\nto calculate funding obligations with respect to any Pension Plans, or any\nchange in the manner in which contributions to any Pension Plans are made or the\nbasis on which such contributions are determined.\n\n\n                                       21\n\n\n          (l) ERISA Compliance. \n\n               (i) Section 3.1(l) of the Company Disclosure Memorandum contains\na list of each pension, retirement, savings, profit sharing, medical, dental,\nhealth, disability, life, death benefit, group insurance, deferred compensation,\nfringe, change in control, retiree, stock option, stock purchase, restricted\nstock, bonus or incentive, vacation, sick leave, severance pay, employment or\ntermination, and other material employee benefit or compensation plan,\narrangement, contract, agreement (including pursuant to any collective\nbargaining agreement), policy, practice or commitment, whether formal or\ninformal, written or oral, in each case that are binding commitments of the\nCompany and its Subsidiaries (but, for purposes hereof, excluding any\nnonmaterial plan or program maintained by the Company or its Subsidiaries for\nthe benefit of non U.S. employees), under which (1) current or former employees,\nofficers, directors or independent contractors of the Company or any of its\nSubsidiaries (or their beneficiaries) participate or are entitled to participate\nby reason of their relationship with the Company or any of its Subsidiaries, (2)\nto which the Company or any of its Subsidiaries is a party or a sponsor or a\nfiduciary thereof or by which the Company or any of its Subsidiaries (or any of\ntheir rights, properties or assets) is currently bound or (3) with respect to\nwhich the Company or any of its Subsidiaries has any obligation to make payments\nor contributions, including, without limitation, all \"employee pension benefit\nplans\" (as defined in Section 3(2) of the Employee Retirement Income Security\nAct of 1974, as amended (\"ERISA\")) (sometimes referred to herein as \"PENSION\nPLANS\"), \"employee welfare benefit plans\" (as defined in Section 3(1) of ERISA)\n(sometimes referred to herein as \"WELFARE PLANS\") (all of the foregoing referred\nto collectively herein as \"BENEFIT PLANS\"), and all other Benefit Plans\nmaintained, or contributed to, by the Company, its Subsidiaries or any Person or\nentity that, together with the Company, is treated as a single employer under\nSection 414(b), (c), (m) or (o) of the Code (a \"COMMONLY CONTROLLED ENTITY\") for\nthe benefit of any current or former officers, directors, employees or\nindependent contractors of the Company and its Subsidiaries (or their\nbeneficiaries) (including any such plans maintained for current or former\nforeign employees). The Company has made available to Parent true, complete and\ncorrect copies of (1) each Benefit Plan (or, in the case of any unwritten\nBenefit Plans, descriptions thereof), (2) the most recent annual report on Form\n5500 required to be filed with the Internal Revenue Service (the \"IRS\") with\nrespect to each Benefit Plan, (3) the most recent summary plan description for\neach Benefit Plan for which such summary plan description is required and (4)\neach trust agreement and group annuity contract relating to any Benefit Plan.\nEach Benefit Plan has been administered in all material respects in accordance\nwith its terms. The Company, its Subsidiaries and all the Benefit Plans are all\nin compliance in all material respects with the applicable provisions of ERISA,\nthe Code and all other applicable Legal Provisions. Notwithstanding anything\ncontained herein to the contrary, with respect to any Benefit Plan maintained,\nsponsored or contributed to primarily for the benefit of persons residing and\nproviding services to the Company or its Subsidiaries outside of the United\nStates, the term \"BENEFIT PLAN\" as used herein shall only include such non\nUnited States Benefit Plans that are material Benefit Plans of the Company or\nits Subsidiaries.\n\n               (ii) All Pension Plans are the subject of a determination letter\nfrom the IRS to the effect that such Pension Plans are qualified (or the Company\nhas time remaining to apply under applicable regulations or IRS pronouncements\nto make any amendment necessary to obtain a favorable determination or opinion\nletter) and exempt from United States Federal income taxes under Sections 401(a)\nand 501(a), respectively, of the Code, and no such \n\n\n                                       22\n\n\ndetermination letter has been revoked nor to the Company's Knowledge, has any \nevent occurred since the date of its most recent determination letter or \napplication therefor that would adversely affect its qualification.\n\n               (iii) Neither the Company nor any Commonly Controlled Entity has\n(1) at any time in the six (6) years prior to the Closing Date maintained or\ncontributed to any Benefit Plan that is subject to Title IV of ERISA, Section\n302 of ERISA or Section 412 of the Code or (2) has any unsatisfied liability\nunder Title IV of ERISA, Section 302 of ERISA, Section 412 of the Code or\nSection 4980B of the Code. None of the Company, its Subsidiaries, or any\nCommonly Controlled Entity contributes to a \"multi-employer plan\" as defined in\nSection 3(37) of ERISA.\n\n               (iv) With respect to any Benefit Plan (other than employment\nagreements or any other individual contract), there are no understandings,\nagreements or undertakings, written or oral, that would prevent any such Benefit\nPlan (including any such plan covering retirees or other former employees, other\nthan agreements with individuals) from being amended or terminated without\nmaterial liability to the Company on or at any time after the Effective Time.\n\n               (v) No pending or, to the Knowledge of the Company, overtly\nthreatened disputes, lawsuits, claims (other than routine claims for benefits),\ninvestigations, audits or complaints to, or by, any Person or Governmental\nEntity have been filed or are pending with respect to any Benefit Plans of the\nCompany or any of its Subsidiaries in connection with any Benefit Plan or the\nfiduciaries or administrators thereof that could reasonably be expected to give\nrise to a material liability. With respect to each Benefit Plan, there has not\noccurred, and neither the Company, any Subsidiary of the Company, the plan\nsponsor nor, to the Company's Knowledge, a plan fiduciary that the Company has\nan obligation to indemnify or is contractually bound to enter into, any\nnonexempt \"prohibited transaction\" within the meaning of Section 4975 of the\nCode or Section 406 of ERISA, nor any transaction that would result in a\nmaterial civil penalty being imposed under Section 409 or 502(i) of ERISA.\n\n               (vi) There are no unfunded liabilities with respect to any\nBenefit Plan other than those that would not individually or in the aggregate\nreasonably be expected to have a Material Adverse Effect on the Company.\n\n               (vii) Except as would not reasonably be expected to have a\nMaterial Adverse Effect on the Company, all contributions to and payments with\nrespect to or under the Benefit Plans that are required to be made with respect\nto periods ending on or before the Effective Time have been made or accrued\nbefore the Effective Time by the Company in accordance with the appropriate plan\ndocuments, financial statements, actuarial report, collective bargaining\nagreements or insurance contracts or arrangements.\n\n               (viii) No Welfare Plan providing medical or death benefits\n(whether or not insured) with respect to current or former employees of the\nCompany or any Subsidiary continues such coverage or provides such benefits\nbeyond their date of retirement or other termination of service (except as\nrequired by Code Section 4908B or applicable state healthcare continuation\nlaw(s)).\n\n\n                                       23\n\n\n               (ix) The execution of, and performance of the transactions\ncontemplated in, this Agreement will not (either alone or upon the occurrence of\nany additional or subsequent events) constitute an event under any plan, policy,\narrangement or agreement (including under any collective bargaining agreement)\nor any trust or loan that will or would reasonably be expected to result in any\npayment (whether of severance pay or otherwise), acceleration of, forgiveness of\nindebtedness owing from, vesting of, distribution of, or increase in or\nobligation to fund, any benefits with respect to any current or former employee,\ndirector or consultant of the Company.\n\n          (m) Labor Relations. Neither the Company nor any of its Subsidiaries\nis a party to, or bound by, any collective bargaining agreement, contract or\nother agreement or understanding with a labor union or labor organization. There\nis no pending or, to the Knowledge of the Company, overtly threatened (i) union\norganizational campaign effort, collective bargaining negotiations, bargaining\nimpasse, implementation of final offer, work to rule or intermittent strike or\n(ii) labor dispute, grievance or arbitration matter, economic or unfair labor\npractice strike, boycott, work stoppage or slowdown involving, in each case of\nthis clause (ii), a material number of employees of the Company and its\nSubsidiaries, against the Company or any of its Subsidiaries, no lockout is in\neffect and no permanent or temporary strike replacements are currently employed\nat any Company facility. Neither the Company nor any of its Subsidiaries, nor\ntheir respective representatives or employees, has committed any unfair labor\npractices in connection with the operation of the respective businesses of the\nCompany or any of its Subsidiaries, and there is no pending or, to the Knowledge\nof the Company, threatened charge, complaint, decision, order, notice posting\nrequirement, settlement agreement or injunctive action or order against the\nCompany or any of its Subsidiaries by the National Labor Relations Board or any\nsimilar governmental or adjudicatory agency or court, except in each case as\nwould not reasonably be expected to have a Material Adverse Effect on the\nCompany. The Company and its Subsidiaries have in the past been and are in\ncompliance in all respects with all applicable collective bargaining agreements\nand Legal Provisions respecting employment, employment practices, employee\nclassification, labor relations, safety and health, wages, hours and terms and\nconditions of employment, except where the failure to be in compliance would not\nreasonably be expected to have a Material Adverse Effect on the Company. The\nCompany has complied in all material respects with its payment obligations to\nall employees of the Company and its Subsidiaries in respect of all wages,\nsalaries, commissions, bonuses, benefits and other compensation due and payable\nto such employees under any Company or Company Subsidiary policy, practice,\nagreement, plan, program or any statute or other law. Neither the Company nor\nany of its Subsidiaries has experienced within the past twelve (12) months a\n\"plant closing\" or \"mass layoff\" within the meaning of the Worker Adjustment and\nRetraining Notification Act, 29 U.S.C. ss.ss. 2101 et seq.\n\n          (n) Taxes. Each of the Company and its Subsidiaries has timely filed\nall Tax Returns required to be filed by it, or requests for extensions to file\nsuch Tax Returns have been timely filed and granted and have not expired, and\nall such filed Tax Returns are complete and accurate in all respects, except for\nsuch failures to (i) file, (ii) have extensions granted that remain in effect or\n(iii) be complete and accurate in all respects, as applicable, as would not\nindividually or in the aggregate, reasonably be expected to have a Material\nAdverse Effect on the Company. The Company and each of its Subsidiaries has paid\n(or the Company has paid on its behalf) all Taxes required to be paid by it,\nexcept for such failures to pay as would not, \n\n\n                                       24\n\n\nindividually or in the aggregate, reasonably be expected to have a Material\nAdverse Effect on the Company. The most recent financial statements contained in\nthe Filed Company SEC Documents reflect an adequate reserve for all Taxes\npayable by the Company and its Subsidiaries for all taxable periods and portions\nthereof accrued through the date of such financial statements, except for such\nfailures to reflect such reserves as would not, individually or in the\naggregate, reasonably be expected to have a Material Adverse Effect on the\nCompany. No deficiencies for any Taxes have been proposed, asserted or assessed\nagainst the Company or any of its Subsidiaries that are not adequately reserved\nfor on the Company's financial statements in accordance with GAAP except for\nsuch failures to so reserve as would not, individually or in the aggregate,\nreasonably be expected to have a Material Adverse Effect on the Company. Except\nas set forth in Section 3.1(n) of the Company Disclosure Memorandum, no Company\nincome or franchise Tax Return has ever been examined or audited by any\nGovernmental Entity. No requests for waivers of the time to assess any Taxes\nagainst the Company or any of its Subsidiaries have been granted that remain in\neffect. No claim has ever been made in writing by a Governmental Entity in a\njurisdiction where the Company or any of its Subsidiaries does not file Tax\nReturns that it is or may be subject to taxation by that jurisdiction. There are\nno Liens for Taxes upon any of the assets of the Company or its Subsidiaries\nexcept Liens for current Taxes not yet due and payable or for Taxes that are\nbeing disputed in good faith by appropriate proceedings and for which\nappropriate reserves under GAAP exist on the books of the Company. Neither the\nCompany nor any of its Affiliates has taken or agreed to take any action or has\nKnowledge of any fact or circumstance (other than as a result of a decline in\nthe market price of Parent Common Stock) that is reasonably likely to prevent\nthe Transaction from qualifying as a reorganization within the meaning of\nSection 368(a) of the Code. As used in this Agreement, \"TAXES\" shall include all\nU.S. Federal, state and local, domestic and foreign, income, franchise,\nproperty, sales, use, excise and other taxes, of any nature whatsoever, tariffs\nor similar governmental charges, including any obligations for withholding taxes\nfrom payments due or made to any other person, together with all interest,\npenalties or additions to tax imposed with respect to such amounts and \"TAX\nRETURNS\" shall include any return, report or similar statement (including\nattached schedules) required to be filed with respect to any Tax, including,\nwithout limitation, any information return, claim for refund, amended return or\ndeclaration of estimated Tax.\n\n          (o) No Excess Parachute Payments; No Section 162(m) Payments. There\nwill be no payments or benefits to any \"disqualified individual\" (within the\nmeaning of Section 280G of the Code) that would constitute or result in an\n\"excess parachute payment\" under Section 280G of the Code as a direct or\nindirect consequence of the transactions contemplated by this Agreement,\nincluding, without limitation, as a result of the acceleration of vesting or\nexercisability of any options to purchase Company Common Stock held by\n\"disqualified individuals\" as a direct or indirect consequence of the\ntransactions contemplated by this Agreement. No such Person is entitled to\nreceive any additional payment from the Company, the Surviving Corporation or\nany other Person in the event that the excise tax of Section 4999(a) of the Code\nis imposed on such Person. The Benefit Plans and other Company employee\ncompensation arrangements in effect as of the date of this Agreement have been\ndesigned so that the disallowance of a deduction under Section 162(m) of the\nCode for employee remuneration will not apply to any amounts paid or payable by\nthe Company or any of its Subsidiaries under any such plan or arrangement.\n\n\n                                       25\n\n\n\n          (p)   Title to Properties.     \n\n               (i) Each of the Company and its Subsidiaries has good and\nmarketable title to, or valid leasehold interests in, all its properties and\nassets except for such as are no longer used or useful in the conduct of its\nbusinesses or as have been disposed of in the ordinary course of business and\nexcept for failures to have, or defects in title or interests, easements,\nrestrictive covenants and similar encumbrances that individually or in the\naggregate would not reasonably be expected to have a Material Adverse Effect on\nthe Company. All such material assets and properties, other than assets and\nproperties in which the Company or any of its Subsidiaries has a leasehold\ninterest, are free and clear of all Liens, except for Liens that individually or\nin the aggregate would not reasonably be expected to have a Material Adverse\nEffect on the Company.\n\n               (ii) Each of the Company and its Subsidiaries has complied in all\nrespects with the terms of all leases to which it is a party and under which it\nis in occupancy, and all such leases are in full force and effect, except for\nsuch noncompliance or failure to be in full force and effect that individually\nor in the aggregate would not reasonably be expected to have a Material Adverse\nEffect on the Company. Each of the Company and its Subsidiaries enjoys peaceful\nand undisturbed possession under all such leases, except for failures to do so\nthat individually or in the aggregate are not reasonably likely to have a\nMaterial Adverse Effect on the Company.\n\n          (q)   Intellectual Property.\n     \n               (i) Each of the Company and its Subsidiaries owns, or is validly\nlicensed or otherwise has the right to use (in each case free and clear of all\nLiens) all patents, patent applications, trademarks, trademark rights, trade\nnames, trade name rights, service marks, service mark rights, copyrights and\nother proprietary intellectual property rights, computer programs and other\ntechnology (collectively, \"INTELLECTUAL PROPERTY RIGHTS\") which if the Company\nor its Subsidiaries did not own or validly license or otherwise have the right\nto use would reasonably be expected to have a Material Adverse Effect on the\nCompany. Section 3.1(q) of the Company Disclosure Memorandum sets forth, as of\nthe date hereof, a list of all granted patents, pending patent applications,\ntrademarks and applications therefor owned by the Company or any of its\nSubsidiaries.\n\n               (ii) In each of the following cases, except for those matters\nthat individually or in the aggregate would not reasonably be expected to have a\nMaterial Adverse Effect on the Company, (A) the use of any Intellectual Property\nRights by the Company and its Subsidiaries does not infringe on or otherwise\nviolate the rights of any Person and is in accordance with any applicable\nlicense pursuant to which the Company or any Subsidiary of the Company acquired\nthe right to use any Intellectual Property Rights; (B) no Person is challenging\nor, to the Knowledge of the Company, infringing on or otherwise violating any\nright of the Company or any of its Subsidiaries with respect to any Intellectual\nProperty Right owned by and\/or licensed to the Company or its Subsidiaries; and\n(C) neither the Company nor any of its Subsidiaries has received any written\nnotice or otherwise has Knowledge of any pending claim, order or proceeding with\nrespect to any Intellectual Property Right used by the Company and its\nSubsidiaries and to its Knowledge no Intellectual Property Right owned and\/or\nlicensed by the Company or its Subsidiaries is being used or enforced in a\nmanner that would reasonably be\n\n\n                                       26\n\n\nexpected to result in the abandonment, cancellation or unenforceability of such \nIntellectual Property Right.\n\n               (iii) The Company has no Knowledge that the use of its material\nIntellectual Property Rights in the business of the Company and its Subsidiaries\nas presently conducted or as presently contemplated does or will infringe (A)\nany granted patent or existing trademark or (B) any patent granted from a\npending patent application.\n\n               (iv) In each of the following cases, except for those matters\nthat individually or in the aggregate would not reasonably be expected to have a\nMaterial Adverse Effect on the Company, the execution, delivery and performance\nof this Agreement by the Company and the consummation by the Company of the\ntransactions contemplated hereby will not (A) constitute a breach by the Company\nor its Subsidiaries of any instrument or agreement governing any Intellectual\nProperty Rights owned by or licensed to the Company or any of its Subsidiaries\n(the \"COMPANY INTELLECTUAL PROPERTY RIGHTS\"), (B) pursuant to the terms of any\nlicense or agreement relating to any Company Intellectual Property Rights, cause\nthe modification of any terms of any such license or agreement, including but\nnot limited to the modification of the effective rate of any royalties or other\npayments provided for in any such license or agreement, (C) cause the forfeiture\nor termination of any Company Intellectual Property Rights under the terms\nthereof, (D) give rise to a right of forfeiture or termination of any Company\nIntellectual Property Rights under the terms thereof or (E) impair the right of\nthe Company, its Subsidiaries, the Surviving Corporation or Parent to make, have\nmade, offer for sale, use, sell, export or license any Company Intellectual\nProperty Rights or portion thereof pursuant to the terms thereof.\n\n               (v) The Company has no Knowledge of any facts which would cause\nit to reasonably believe that either the Offer or the Merger (including the\nassignment by operation of law of any contract to the Surviving Corporation)\nwill result in: (A) the granting by Parent or any of its Subsidiaries (other\nthan Sub in the case of a Forward Merger and other than the Company and its\nSubsidiaries in the case of a Reverse Merger) of any rights or licenses to any\nmaterial Intellectual Property Rights of Parent or any Subsidiary of Parent to\nany third party (including a covenant not to sue with respect to any material\nIntellectual Property Rights of Parent or any Subsidiary of Parent) which\ngranting, individually or in the aggregate, would reasonably be expected to be\nmaterial to Parent and its Subsidiaries taken as a whole or (B) the Parent or\nany of its Subsidiaries (other than Sub in the case of a Forward Merger and\nother than the Company and its Subsidiaries in the case of a Reverse Merger)\nbeing bound by any material non-compete or other material restriction on the\noperation of any business of the Parent or its Subsidiaries (such materiality to\nbe determined with respect to Parent and its Subsidiaries taken as a whole).\n\n          (r) Voting Requirements. The affirmative vote of a majority of the\noutstanding shares of Company Common Stock to adopt this Agreement (the \"COMPANY\nSTOCKHOLDER APPROVAL\") is the only vote of the holders of any class or series of\nthe Company's capital stock necessary to adopt this Agreement and approve the\ntransactions contemplated hereby. No vote of any holders of any class or series\nof the Company's capital stock is necessary to adopt this Agreement or approve\nthe transactions contemplated hereby in the event that Parent shall acquire at\nleast ninety percent (90%) of the outstanding Shares in the Offer, other than,\n\n\n                                       27\n\n\nsubject to the satisfaction of (to the extent permitted hereunder) waiver of all\nconditions to the Merger, in accordance with Section 253 of the DGCL.\n\n          (s) Brokers. No broker, investment banker, financial advisor or other\nPerson, other than Lazard Freres &amp; Co., LLC, the fees and expenses of which will\nbe paid by the Company, is entitled to any broker's, finder's, financial\nadvisor's or other similar fee or commission in connection with the transactions\ncontemplated by this Agreement based upon arrangements made by or on behalf of\nthe Company.\n\n          (t) Opinion of Financial Advisor. The Company has received the opinion\nof Lazard Freres &amp; Co., LLC, dated the date hereof, to the effect that, as of\nsuch date, the consideration to be paid in the Offer and the Merger is fair from\na financial point of view to the holders of shares of Company Common Stock.\n\n          (u) Certain Business Practices. Neither the Company nor any of its\nSubsidiaries nor (to the Knowledge of the Company) any director, officer, agent\nor employee of the Company or any of its Subsidiaries has, in connection with\nthe conduct of the business of the Company and its Subsidiaries, (i) used any\nfunds for unlawful contributions, gifts, entertainment or other unlawful\nexpenses relating to political activity, (ii) made any unlawful payment to\nforeign or domestic government officials or employees or to foreign or domestic\npolitical parties or campaigns or violated any provision of the Foreign Corrupt\nPractices Act of 1977, as amended, or (iii) made any other unlawful payment.\n\n          (v) TMP Agreement. The TMP Agreement was validly terminated pursuant\nto Section 7.1(f) thereof.\n\n     Section 3.2 REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB. Except as\nexpressly set forth in the Filed Parent SEC Documents filed since December 31,\n2000 or on the disclosure memorandum delivered by Parent to the Company\nimmediately prior to the execution of this Agreement and initialed on behalf of\nthe Company and Parent, which disclosure memorandum specifies the section or\nsubsection of this Agreement to which the exception relates (the \"PARENT\nDISCLOSURE MEMORANDUM\"), Parent and Sub represent and warrant to the Company as\nfollows:\n\n          (a) Organization, Standing and Corporate Power. Each of Parent and\neach of its Subsidiaries is an entity duly organized, validly existing and, to\nthe extent applicable, in good standing under the laws of the jurisdiction in\nwhich it is organized and has all requisite corporate power and authority to\nown, lease and operate its properties and to carry on its business as now being\nconducted. Each of Parent and each of its Significant Subsidiaries is duly\nqualified or licensed to do business and, to the extent applicable, is in good\nstanding in each jurisdiction in which the nature of its business or the\nownership, leasing or operation of its properties makes such qualification or\nlicensing necessary, other than in such jurisdictions where the failure to be so\nqualified or licensed individually or in the aggregate would not reasonably be\nexpected to have a Material Adverse Effect on Parent. Parent has made available\nto the Company prior to the execution of this Agreement complete and correct\ncopies of its Certificate of Incorporation and Bylaws, and the comparable\norganizational documents of each of its Significant Subsidiaries, in each case\nas amended to the date hereof.\n\n\n                                       28\n\n\n          (b) Capital Structure. The authorized capital stock of Parent consists\nof 5,000,000,000 shares of Parent Common Stock and 10,000,000 shares of\nPreferred Stock, par value $.001 per share (\"PARENT PREFERRED STOCK\"). At the\nclose of business on December 20, 2001, (i) 574,645,471 shares of Parent Common\nStock were issued and outstanding, (ii) 5,384,423 shares of Parent Common Stock\nwere held by Parent in its treasury, (iii) 137,136,206 shares of Parent Common\nStock were issuable pursuant to outstanding Parent Stock Options and (iv) no\nshares of Parent Preferred Stock were issued or outstanding. All outstanding\nshares of capital stock of Parent Common Stock are, and all shares of Parent\nCommon Stock which may be issued pursuant to this Agreement will be, when issued\nin accordance with the terms hereof, duly authorized, validly issued, fully paid\nand nonassessable and not subject to preemptive rights. As of the date hereof\nthere are no bonds, debentures, notes or other indebtedness of Parent having the\nright to vote (or convertible into, or exchangeable for, securities having the\nright to vote) on any matters on which stockholders of Parent may vote. Except\n(i) as set forth above in this Section 3.2(b), and (ii) for shares of Parent\nCommon Stock reserved for issuance under any plan or arrangement providing for\nthe grant of options to purchase shares of Parent Common Stock to current or\nformer officers, directors, employees or consultants of Parent or its\nSubsidiaries (the \"PARENT STOCK PLANS\") or resulting from the issuance of shares\nof Parent Common Stock pursuant to options or other benefits issued or granted\npursuant to Parent Stock Plans outstanding as of the close of business on\nDecember 20, 2001, as of the date hereof (x) there are not issued, issuable,\nreserved for issuance or outstanding (A) any shares of capital stock or other\nvoting securities of Parent, (B) any securities of Parent convertible into or\nexchangeable or exercisable for shares of capital stock or voting securities of\nParent, (C) any warrants, calls, options or other rights to acquire from Parent\nor any of Parent's Subsidiaries, and no obligation of Parent or any of Parent's\nSubsidiaries to issue, any capital stock, voting securities or securities\nconvertible into or exchangeable or exercisable for capital stock or voting\nsecurities of Parent, or (D) any stock appreciation rights or rights to receive\nshares of Parent Common Stock on a deferred basis granted under the Parent Stock\nPlans or otherwise; and (y) there are not any outstanding obligations of Parent\nor any of Parent's Subsidiaries to repurchase, redeem or otherwise acquire any\nsuch securities or to issue, deliver or sell, or cause to be issued, delivered\nor sold, any such securities. Neither Parent nor any Significant Subsidiary is a\nparty to any voting agreement with respect to the voting of any such securities.\nExcept as set forth in this Section 3.2(b) there are no issued, issuable,\nreserved for issuance or outstanding (A) securities of Parent or any of Parent's\nSubsidiaries convertible into or exchangeable or exercisable for shares of\ncapital stock or other voting securities or ownership interests in any of\nParent's Significant Subsidiary, (B) warrants, calls, options or other rights to\nacquire from Parent or any Significant Subsidiary of Parent, and no obligation\nof Parent or any Significant Subsidiary of Parent to issue, any capital stock,\nvoting securities or other ownership interests in, or any securities convertible\ninto or exchangeable or exercisable for any capital stock, voting securities or\nownership interests in, any Significant Subsidiary of Parent or (C) obligations\nof Parent or any Significant Subsidiary of Parent to repurchase, redeem or\notherwise acquire any such outstanding securities of the Significant\nSubsidiaries of Parent or to issue, deliver or sell, or cause to be issued,\ndelivered or sold, any such securities.\n\n          (c) Authority; Noncontravention. Each of Parent and Sub has all\nrequisite corporate power and authority to enter into this Agreement and to\nconsummate the transactions contemplated by this Agreement. The execution and\ndelivery of this Agreement and the consummation of the transactions contemplated\nby this Agreement have been duly authorized by \n\n\n                                       29\n\n\nall necessary corporate action on the part of Parent and Sub and no other\ncorporate proceedings on the part of Parent or Sub are necessary to authorize\nthis Agreement or to consummate the transactions contemplated hereby, subject,\nin the case of the Merger, to the filing of the Certificate of Merger. This\nAgreement has been duly executed and delivered by Parent and Sub, as applicable,\nand, assuming the due authorization, execution and delivery by each of the other\nparties thereto, constitute legal, valid and binding obligations of Parent and\nSub, as applicable, enforceable against Parent and Sub, as applicable, in\naccordance with its terms (except insofar as enforceability may be limited by\napplicable bankruptcy, insolvency, reorganization, moratorium or other similar\nlaws affecting creditors' rights generally or by principles governing\navailability of equitable remedies). The execution and delivery of this\nAgreement does not, and the consummation of the Offer, the Merger and the other\ntransactions contemplated by this Agreement and compliance with the provisions\nof this Agreement will not, conflict with, or result in any violation of, or\ndefault (with or without notice or lapse of time, or both) under, or give rise\nto a right of termination, cancellation or acceleration of any obligation or to\nloss of a benefit under, or result in the creation of any Lien in or upon any of\nthe properties or assets of Parent or any of its Subsidiaries under (i) the\nCertificate of Incorporation or Bylaws of Parent or the comparable\norganizational documents of any of its Subsidiaries, (ii) any loan or credit\nagreement, bond, note, mortgage, indenture, lease or other contract, agreement,\nobligation, commitment, arrangement, understanding, instrument, permit or\nlicense applicable to Parent or any of its Subsidiaries or their respective\nproperties or assets or (iii) subject to the governmental filings and other\nmatters referred to in the following paragraph, any (A) statute, law, ordinance,\nrule or regulation or (B) judgment, order or decree, in each case applicable to\nParent or any of its Subsidiaries or their respective properties or assets,\nother than, in the case of clauses (ii) and (iii), any such conflicts,\nviolations, defaults, rights, cancellations, accelerations, losses or Liens that\nindividually or in the aggregate would not reasonably be expected to have a\nMaterial Adverse Effect on Parent or to prevent or materially delay the\nconsummation of the transactions contemplated by this Agreement. No consent,\napproval, order or authorization of, action by or in respect of, or\nregistration, declaration or filings with, any Governmental Entity is required\nby or with respect to Parent or any of its Subsidiaries in connection with the\nexecution and delivery of this Agreement by Parent and Sub or the consummation\nby Parent and Sub of the Merger or the other transactions contemplated by this\nAgreement, except for (1) the filing of a pre-merger notification and report\nform under the HSR Act and any applicable filings and approvals under similar\nforeign antitrust laws and regulations, (2) the filing with the SEC of (A) the\nForm S-4 (B) the Offer Documents and (C) such reports under Section 13(a),\n13(d), 15(d) or 16(a) of the Exchange Act as may be required in connection with\nthis Agreement or the Stockholder Agreement and the transactions contemplated by\nthis Agreement or the Stockholder Agreement, (3) the filing of the Certificate\nof Merger with the Secretary of State of the State of Delaware and appropriate\ndocuments with the relevant authorities of other states in which Parent is\nqualified to do business, (4) such filings with Governmental Entities to satisfy\nthe applicable requirements of state securities or \"blue sky\" laws, (5) such\nfilings with and approvals of Nasdaq to permit the shares of Parent Common Stock\nthat are to be issued pursuant to the Offer and the Merger to be traded on the\nNasdaq National Market and (6) such other consents, approvals, orders,\nauthorizations, registrations, declarations and filings the failure of which to\nbe obtained or made individually or in the aggregate, would not reasonably be\nexpected to have a Material Adverse Effect on Parent or to prevent or materially\ndelay the consummation of the transactions contemplated by this Agreement.\n\n\n                                       30\n\n\n          (d) Parent SEC Documents. Except as listed in Section 3.2(d) of the\nParent Disclosure Memorandum, Parent has timely filed all reports, schedules,\nforms, statements and other documents (including exhibits and other information\nincorporated therein) with the SEC required to be filed by Parent since January\n1, 1999 (the \"PARENT SEC DOCUMENTS\"). None of Parent's Subsidiaries is required\nto file any form, report, registration statement, prospectus or other document\nwith the SEC. As of their respective dates (and, if amended or superseded by a\nfiling prior to the date of this Agreement or the Closing Date, then on the date\nof such filing), the Parent SEC Documents complied in all material respects with\nthe requirements of the Securities Act or the Exchange Act, as the case may be,\nand none of the Parent SEC Documents contained any untrue statement of a\nmaterial fact or omitted to state a material fact required to be stated therein\nor necessary in order to make the statements therein, in light of the\ncircumstances under which they were made, not misleading. The Parent SEC\nDocuments filed since December 31, 2000, together with any public announcements\nin a Dow Jones News Release made by Parent after the date hereof taken as a\nwhole, as of the Effective Time will not contain any untrue statement of a\nmaterial fact or omit to state a material fact required to be stated therein or\nnecessary to make the statements therein, in light of the circumstances existing\nas of the Effective Time, not misleading. The financial statements (including\nthe related notes) of Parent included in the Parent SEC Documents, as of their\nrespective dates, complied in all material respects with applicable accounting\nrequirements and the published rules and regulations of the SEC with respect\nthereto, were prepared in accordance with GAAP applied on a consistent basis\nduring the periods involved (except as may be indicated in the notes thereto)\nand (except as amended or superseded by a filing prior to the date of this\nAgreement) fairly presented the financial position of Parent and its\nconsolidated Subsidiaries as of the dates thereof and the consolidated results\nof their operations and cash flows for the periods then ended (subject, in the\ncase of unaudited statements, to normal year-end audit adjustments not material\nin amount). Except (i) as set forth in the Parent SEC Documents filed since\nDecember 31, 2000 and (ii) for liabilities set forth in this Agreement, neither\nParent nor any of its Subsidiaries has any liabilities or obligations of any\nnature (whether accrued, absolute, contingent or otherwise) which, individually\nor in the aggregate, would reasonably be expected to have a Material Adverse\nEffect on Parent. For purposes of this Agreement, a \"FILED PARENT SEC DOCUMENT\"\nshall mean a Parent SEC Document filed by Parent and publicly available prior to\nthe date of this Agreement.\n\n          (e) Information Supplied. None of the information supplied or to be\nsupplied by Parent or Sub specifically for inclusion or incorporation by\nreference in the Form S-4 will, at the time the Form S-4 is filed with the SEC,\nat any time it is supplemented or amended or at the time it becomes effective\nunder the Securities Act, contain any untrue statement of a material fact or\nomit to state any material fact required to be stated therein or necessary to\nmake the statements therein, in light of the circumstances under which they are\nmade, not misleading. The Form S-4 will comply in all material respects with the\nrequirements of the Securities Act and the Exchange Act, respectively, in each\ncase as applicable to Parent and Sub, except that no representation or warranty\nis made by Parent or Sub with respect to statements made or incorporated by\nreference therein based on information supplied by the Company specifically for\ninclusion or incorporation by reference in the Form S-4.\n\n          (f) Absence of Certain Changes or Events. Except as set forth in the\nFiled Parent SEC Documents filed after December 31, 2000 and for transactions\nexpressly contemplated or permitted by this Agreement, since December 31, 2000\nto the date hereof (i) \n\n\n                                       31\n\n\nParent and its Subsidiaries have conducted their businesses in the ordinary\ncourse consistent with past practice and (ii) there has not been a Material\nAdverse Effect on the Parent. Except as set forth in the Filed Parent SEC\nDocuments and for actions in the ordinary course of business, since December 31,\n2000, neither the Parent nor any Parent Subsidiary has taken any action, or\nfailed to take any action, which if such action or failure occurred during the\nperiod from the date of this Agreement to the Effective Time would constitute a\nbreach or violation of Section 4.1(b) or Section 5.12, and neither the Parent\nnor any Parent Subsidiary has authorized, or committed or agreed, to take any of\nsuch actions.\n\n          (g) Brokers. No broker, investment banker, financial advisor or other\nPerson, other than Goldman Sachs &amp; Co., the fees and expenses of which will be\npaid by Parent, is entitled to any broker's, finder's, financial advisors or\nother similar fee or commission in connection with the transactions contemplated\nby this Agreement based upon arrangements made by or on behalf of Parent.\n\n          (h) No Stockholder Vote. No vote of the stockholders of Parent is\nnecessary to approve the issuance of Parent Common Stock in connection with the\nOffer or the Merger.\n\n          (i) Ownership of Company Capital Stock. Neither Parent nor Sub is, nor\nat any time during the last three (3) years has it been, an \"interested\nstockholder\" of the Company as defined in Section 203 of the DGCL (other than as\ncontemplated by this Agreement). Neither Parent nor Sub owns (directly or\nindirectly, beneficially or of record) or is a party to any agreement,\narrangement or understanding for the purpose of acquiring, holding, voting or\ndisposing of, in each case, any shares of capital stock of the Company (other\nthan as contemplated by this Agreement).\n\n          (j) Information in the Proxy Statement. None of the information\nsupplied by Parent or Sub in writing expressly for inclusion or incorporation by\nreference in the Proxy Statement (or any amendment thereof or supplement\nthereto) will, at the date mailed to stockholders and at the time of the meeting\nof stockholders to be held in connection with the Merger (if required under\napplicable Law), contain any untrue statement of a material fact or omit to\nstate any material fact required to be stated therein or necessary in order to\nmake the statements made therein, in light of the circumstances under which they\nare made, not misleading.\n\n          (k) Information in the Offer Documents. The Offer Documents will\ncomply in all material respects with the provisions of applicable federal\nsecurities laws and, on the date filed with the SEC and on the date first\npublished or sent or given to the Company's stockholders, will not contain any\nuntrue statement of a material fact or omit to state any material fact required\nto be stated therein or necessary in order to make the statements made therein,\nin the light of the circumstances under which they were made, not misleading,\nexcept that no representation is made by Parent or Sub with respect to\ninformation furnished by the Company expressly for inclusion in the Offer\nDocuments.\n\n          (l) Financing. Either Parent or Sub has, or will have available to it\nupon the consummation of the Offer, sufficient funds available (through existing\ncredit arrangements or otherwise) to deliver the cash component of the Exchange\nOffer Consideration and the Merger \n\n\n                                       32\n\n\nConsideration to all of the Shares outstanding which become entitled to receive\nsuch consideration.\n\n          (m) Tax Matters. Neither Parent nor any of its Affiliates has taken or\nagreed to take any action or has Knowledge of any fact or circumstance (other\nthan as the result of a decline in the market price of Parent Common Stock) that\nis reasonably likely to prevent the Transaction from qualifying as a\nreorganization within the meaning of Section 368(a) of the Code.\n\n                                   ARTICLE IV\n\n                    COVENANTS RELATING TO CONDUCT OF BUSINESS\n\n     Section 4.1 CONDUCT OF BUSINESS.\n\n          (a) Conduct of Business by the Company. During the period from the\ndate of this Agreement to the Effective Time, or the date, if any, on which this\nAgreement is earlier terminated pursuant to Section 7.1, and except as may be\nagreed in writing by Parent, as may be expressly permitted pursuant to this\nAgreement or as set forth in Section 4.1 of the Company Disclosure Memorandum,\nthe Company shall, and shall cause its Subsidiaries to, carry on their\nrespective businesses in the ordinary course consistent with past practice and\nin compliance in all material respects with all applicable Legal Provisions and,\nto the extent consistent therewith, use all commercially reasonable efforts to\npreserve intact its current business organizations, keep available the services\nof its current officers and key employees and preserve its relationships with\ncustomers, suppliers, licensors, licensees, distributors and others having\nbusiness dealings with them with the intention that its goodwill and ongoing\nbusiness shall be preserved. Without limiting the generality of the foregoing,\nduring the period from the date of this Agreement to the Effective Time, or the\ndate, if any, on which this Agreement is earlier terminated pursuant to Section\n7.1, and except as may be agreed in writing by Parent, as may be expressly\npermitted pursuant to this Agreement or as set forth in Section 4.1 of the\nCompany Disclosure Memorandum, the Company shall not, and shall not permit any\nof its Subsidiaries to:\n\n               (i) (A) declare, set aside or pay any dividends on, or make any\nother distributions (whether in cash, stock or property), in respect of, any of\nits capital stock, other than dividends or distributions by a direct or indirect\nwholly-owned Subsidiary of the Company to its parent, (B) split, combine or\nreclassify any of its capital stock or amend the terms of any outstanding\nsecurities (including Stock Options) or (C) purchase, redeem or otherwise\nacquire any shares of its capital stock or any other securities;\n\n               (ii) issue, deliver, sell, grant, pledge or otherwise encumber or\nsubject to any Lien any shares of its capital stock, any other securities\nconvertible into or exercisable or exchangeable for, or any rights, warrants or\noptions to acquire, any such shares or securities (other than the issuance of\nshares of Company Common Stock upon the exercise of Stock Options outstanding on\nthe date hereof or permitted to be granted after the date hereof as set forth in\nSection 4.1 of the Company's Disclosure Memorandum and in accordance with their\nterms on the date hereof) or any \"phantom\" stock, \"phantom\" stock rights, stock\nappreciation rights or stock-based performance units;\n\n\n                                       33\n\n\n               (iii) amend its Certificate of Incorporation or Bylaws or other\ncomparable charter or organizational documents;\n\n               (iv) acquire or agree to acquire by merging or consolidating\nwith, or by purchasing assets of, or by any other manner, any Person or\ndivision, business or equity interest of any Person except for purchases of\nassets in the ordinary course of business which do not constitute the purchase\nof a Person's business;\n\n               (v) except in the ordinary course of business, sell, lease,\nlicense, mortgage or otherwise encumber or subject to any Lien or otherwise\ndispose of any of its properties or assets (including securitizations);\n\n               (vi) (A) except for borrowings under the Company's existing\ncredit facilities, incur any indebtedness for borrowed money or guarantee any\nsuch indebtedness of another Person, issue or sell any debt securities or\nwarrants or other rights to acquire any debt securities of the Company or any of\nits Subsidiaries, guarantee any debt securities of another Person, enter into\nany \"keep well\" or other agreement to maintain any financial statement condition\nof another Person or enter into any arrangement having the economic effect of\nany of the foregoing or (B) make any loans, advances or capital contributions\nto, or investments in, any other Person, other than in the ordinary course of\nbusiness or to or in any direct or indirect wholly-owned Subsidiary of the\nCompany (or any foreign Subsidiary of the Company with nominal non Company\nownership);\n\n               (vii) make or agree to make any new capital expenditure\n(including leases) or enter into any agreement or agreements providing for\npayments which are in excess of $100,000 individually or $500,000 in the\naggregate;\n\n               (viii) (A) pay, discharge, settle or satisfy any claims,\nliabilities, obligations or litigation (absolute, accrued, asserted or\nunasserted, contingent or otherwise) in excess of $100,000 individually and\n$250,000 in the aggregate, other than the payment, discharge, settlement or\nsatisfaction in the ordinary course of business or in accordance with their\nterms, of liabilities disclosed, reflected or reserved against in the most\nrecent consolidated financial statements (or the notes thereto) of the Company\nincluded in the Filed Company SEC Documents or incurred since the date of such\nfinancial statements in the ordinary course of business, or (B) cancel any\nindebtedness in excess of $10,000 individually and $50,000 in the aggregate,\nother than in the ordinary course of business;\n\n               (ix) modify, amend or terminate any Material Contract to which\nthe Company or any of its Subsidiaries is a party in a manner that would\nreasonably be expected to have a Material Adverse Effect on the Company;\n\n               (x) enter into any contract, agreement, binding arrangement or\nunderstanding that would be a Material Contract, other than pursuant to any such\ncontracts, agreements, arrangements or understandings currently in place (that\nhave been disclosed in writing to Parent prior to the date hereof) in accordance\nwith their terms as of the date hereof;\n\n               (xi) except as otherwise set forth in this Agreement or as\nrequired to comply with applicable Legal Provisions or contractual commitments\nexisting as of the date \n\n\n                                       34\n\n\nhereof, (A) adopt, enter into, terminate or amend in any material respect (I)\nany collective bargaining agreement or Benefit Plan or (II) any other agreement,\nplan or policy involving the Company or its Subsidiaries, and one or more of its\ncurrent or former directors, officers, or other executive employees, (B)\nincrease in any manner the compensation, bonus or fringe or other benefits of,\nor pay any bonus to, any current or former officer, director or employee, other\nthan in the case of employees who are neither current nor former officers or\ndirectors, increases made in connection with normal periodic reviews and related\ncompensation and benefit increases which are consistent with past practice, (C)\npay any benefit or amount not required under any Benefit Plan, (D) increase in\nany manner the severance or termination pay of any current or former director,\nofficer or other executive employee, (E) enter into or amend any employment,\ndeferred compensation, consulting, severance, termination or indemnification\nagreement, arrangement or understanding with any current or former officer,\ndirector or other executive employee, (F) grant any awards under any bonus,\nincentive, performance or other compensation plan or arrangement or Benefit Plan\n(including the grant of stock options, stock appreciation rights, performance\nunits, restricted stock, \"phantom\" stock or other stock related awards), or\nremove any existing restrictions in any Benefit Plans or agreements or awards\nmade thereunder, (G) amend or modify any Stock Option, (H) take any action to\nfund or in any other way secure the payment of compensation or benefits under\nany employee plan, agreement, contract or arrangement or Benefit Plan, or (I)\ntake any action to accelerate the vesting of payment of any compensation or\nbenefit under any Benefit Plan;\n\n               (xii) except as required by GAAP, make any change in accounting\nmethods, principles or practices;\n\n               (xiii) transfer or license to any Person or otherwise extend,\namend or modify any rights to the Intellectual Property Rights of the Company\nand its Subsidiaries, other than in the ordinary course of business or pursuant\nto any contracts, agreements, arrangements or understandings currently in place\n(that have been disclosed in writing to Parent prior to the date of this\nAgreement);\n\n               (xiv) take any action (including any action otherwise permitted\nby this Section 4.1(a)) that would reasonably be expected to prevent the\nTransaction from qualifying as a \"reorganization\" under Section 368(a) of the\nCode;\n\n               (xv) enter into any hedging, option, derivative or other similar\ntransaction of any foreign exchange position or contract for the exchange of\ncurrency other than in the ordinary course of business and consistent with past\npractice;\n\n               (xvi) take any action that would reasonably be expected to\nprevent, impair or materially delay the ability of the Company, Parent or Sub to\nconsummate the transactions contemplated by this Agreement;\n\n               (xvii) (A) change any material tax election; (B) change any\nannual tax accounting period or method of tax accounting in any material\nrespect; (C) file any amended Tax Return; (D) enter into any closing agreement\nrelating to any material Tax; (E) settle any material Tax claim or assessment or\n(F) surrender any right to claim a material Tax refund or to any extension or\nwaiver of the limitations period applicable to any material Tax claim or\nassessment; \n\n\n                                       35\n\n\nor\n\n               (xviii) authorize, or commit or agree to take, any of the\nforegoing actions.\n\n          (b) Conduct of Business by Parent. During the period from the date of\nthis Agreement to the Effective Time or the date, if any, on which this\nAgreement is earlier terminated pursuant to Section 7.1, and except as may be\nagreed in writing by the Company, or as may be contemplated by this Agreement or\nSection 4.1(b) of the Parent Disclosure Memorandum, Parent shall not, and shall\nnot permit any of its Subsidiaries to:\n\n               (i) (A) declare, set aside or pay any dividends on, or make any\nother distributions (whether in cash, stock or property), in respect of, any of\nits capital stock, other than dividends or distributions by a direct or indirect\nwholly owned Subsidiary of Parent to its parent, or (B) split, combine or\nreclassify any of its capital stock;\n\n               (ii) amend its Certificate of Incorporation or other comparable\ncharter or organizational documents;\n\n               (iii) take any action that would reasonably be expected to\nprevent, impair, or materially delay the ability of the Company, Parent or Sub\nto consummate the transactions contemplated by this Agreement;\n\n               (iv) cause Sub to engage in any activities or incur any\nliabilities or obligations other than in connection with or as contemplated by\nthis Agreement;\n\n               (v) authorize, or commit or agree to take, any of the foregoing\nactions; or\n\n               (vi) enter into any new line of business material to Parent's\noperations taken as a whole, other than any lines of business in which Parent's\ncompetitors are currently engaged.\n\n     Section 4.2 NO SOLICITATION.\n\n          (a) The Company agrees that neither it nor any of its Subsidiaries nor\nany of the officers and directors of the Company or its Subsidiaries shall, and\nthat it shall use its reasonable best efforts to cause its and its Subsidiaries'\nemployees, agents and representatives (including any investment banker, attorney\nor accountant retained by the Company or any of its Subsidiaries) not to,\ndirectly or indirectly, (i) initiate, solicit, encourage or knowingly facilitate\nany inquiries or the making of any proposal or offer with respect to, or a\ntransaction to effect, a merger, reorganization, share exchange, consolidation,\nbusiness combination, recapitalization, liquidation, dissolution or similar\ntransaction involving it or any of its Significant Subsidiaries (or any group of\nSubsidiaries which taken together could constitute a Significant Subsidiary), or\nany purchase or sale of fifteen percent (15%) or more of the consolidated assets\n(including stock of its Subsidiaries) of the Company and its Subsidiaries, taken\nas a whole, or any purchase or sale of, or tender or exchange offer for, its\nequity securities that, if consummated, would result in any Person (or the\nstockholders of such Person) beneficially owning securities representing fifteen\npercent (15%) or more of its total voting power (or of the surviving parent\nentity in such \n\n\n                                       36\n\n\ntransaction) or the voting power of any of its Significant Subsidiaries (any\nsuch proposal, offer or transaction (other than a proposal or offer made by\nParent or an Affiliate thereof) a \"TAKEOVER PROPOSAL\"), (ii) have any discussion\nwith or provide any confidential information or data to any Person relating to a\nTakeover Proposal, or engage in any negotiations concerning a Takeover Proposal,\nor knowingly facilitate any effort or attempt to make or implement a Takeover\nProposal, (iii) approve or recommend, or propose publicly to approve or\nrecommend, any Takeover Proposal or (iv) approve or recommend, or propose to\napprove or recommend, or execute or enter into, any letter of intent, agreement\nin principle, merger agreement, acquisition agreement, option agreement or other\nsimilar agreement or propose publicly or agree to do any of the foregoing\nrelated to any Takeover Proposal.\n\n          (b) Notwithstanding anything in this Agreement to the contrary, prior\nto the Appointment Time, the Company (and its Board of Directors) shall be\npermitted to (i) comply with applicable Law (including Rule 14d-9 and Rule 14e-2\npromulgated under the Exchange Act) with regard to a Takeover Proposal or make\nany other disclosure to the Company's stockholders if, in the good faith\njudgment of the Company, after taking into account the advice of outside\ncounsel, failure to so disclose would be inconsistent with applicable Law (and\nany such disclosure shall not be deemed a change, amendment or modification in\nthe Company's (or its Board of Directors') recommendation to the stockholders of\nthe Company), (ii) change its recommendation to its stockholders or (iii) engage\nin discussions or negotiations with, or provide any information to any Person in\nresponse to, an unsolicited bona fide written Takeover Proposal by such Person\nthat did not result from a breach of Section 4.1(a) if and only to the extent\nthat, in any such case referred to in clause (ii) or (iii), (A) the consummation\nof the Offer shall not have occurred, (B) (I) in the case of clause (ii) above,\nit has received an unsolicited bona fide written Takeover Proposal from a third\nparty that did not result from a breach of Section 4.1(a) and its Board of\nDirectors concludes in good faith that such Takeover Proposal constitutes a\nSuperior Proposal and such withdrawal is in connection with the termination of\nthis Agreement in accordance with the provisions of Section 7.1(f) and (II) in\nthe case of clause (iii) above, its Board of Directors concludes in good faith\nthat there is a reasonable likelihood that such Takeover Proposal could\nconstitute a Superior Proposal and (C) prior to providing any information or\ndata to any Person or entering into discussions or negotiations with any Person,\nit notifies Parent promptly of such inquiries, proposals or offers received by,\nany such information requested from, or any such discussions or negotiations\nsought to be initiated or continued with, any of its representatives indicating,\nin connection with such notice, the name of such Person and the material terms\nand conditions of any inquiries, proposals or offers and enters into a customary\nand reasonable confidentiality agreement no less favorable to the Company than\nthe Confidentiality Agreement. The Company agrees that it will promptly keep\nParent reasonably informed of the status and terms of any inquiries, proposals\nor offers and the status and terms of any discussions or negotiations, including\nthe identity of the Person making such inquiry, proposal or offer and will\ndeliver to Parent the information delivered to such Person to the extent not\npreviously provided to Parent. The Company agrees that it will, and will cause\nits officers, directors and representatives to, immediately cease and cause to\nbe terminated any activities, discussions or negotiations existing as of the\ndate of this Agreement with any Person (other than the parties hereto) conducted\nheretofore with respect to any Takeover Proposal, and Parent agrees that no such\nprior activity shall be considered solicitation of a Takeover Proposal\nhereunder. The Company agrees that it will use its reasonable best efforts to\npromptly inform its directors, officers, key employees, agents and\nrepresentatives of the obligations undertaken in \n\n\n                                       37\n\n\nthis Section 4.2. Without limiting the foregoing, it is understood that any\nviolation of the restrictions set forth in this Section 4.2 by any officer or\ndirector of the Company or any of its Subsidiaries or any investment banker,\nattorney or other advisor or representative of the Company or any of its\nSubsidiaries, whether or not such Person is purporting to act on behalf of the\nCompany or any of its Subsidiaries or otherwise, shall be deemed to be a breach\nof this Section 4.2 by the Company. Nothing in this Section 4.2 shall (i) permit\nParent or the Company to terminate this Agreement (except as specifically\nprovided in Article VII) or (ii) affect or limit any other obligation of Parent\nor the Company under this Agreement except as explicitly provided herein.\nNotwithstanding anything to the contrary in this Agreement, if requested by a\nthird party, the Company may waive any \"standstill\" or similar provisions in\nfavor of the Company in any agreement with such third party if the Board of\nDirectors reasonably believes that there is a reasonable likelihood that third\nparty will submit a bona fide Takeover Proposal that could constitute a Superior\nProposal, and any such waiver shall not be construed as a breach of this Section\n4.2.\n\n                                   ARTICLE V\n\n                              ADDITIONAL AGREEMENTS\n\n     Section 5.1 PREPARATION OF THE PROXY STATEMENT; STOCKHOLDERS MEETINGS\n\n          (a) If approval by the Company's stockholders is required by\napplicable Law in order to consummate the Merger, as promptly as practicable\nafter the acceptance for exchange of Shares pursuant to the offer, the Company\nshall prepare and file with the SEC under the Exchange Act the Proxy Statement\nand use all reasonable efforts to have the Proxy Statement cleared by the SEC as\npromptly as practicable after the acceptance by Parent for exchange of Shares\npursuant to the Offer. Subject to Section 4.2, each of the Company and Parent\nshall use its reasonable best efforts to cause the Proxy Statement to be mailed\nto the Company's stockholders as promptly as practicable after the Proxy\nStatement shall have cleared the SEC. Each of the Company, Parent and Sub will\npromptly correct any information provided by it for use in the Proxy Statement\nif and to the extent that it shall have become false or misleading in any\nmaterial respect prior to the Company Stockholders Meeting, and the Company will\ncause the Proxy Statement as so corrected to be filed with the SEC and to be\ndisseminated to holders of Shares, in each case as and to the extent required by\napplicable federal securities laws. Parent and its counsel shall be given a\nreasonable opportunity to review and comment upon the Proxy Statement before it\nis filed with the SEC. In addition, the Company agrees to provide Parent, Sub\nand their counsel with any comments that the Company or its counsel may receive\nfrom time to time from the SEC or its staff with respect to the Proxy Statement\npromptly after the receipt of such comments and to consult with Parent, Sub and\ntheir counsel prior to responding to any such comments. The Company will advise\nParent of the time when the SEC has cleared the Proxy Statement, promptly after\nit receives notice thereof.\n\n          (b) If approval of the stockholders is required by applicable Law in\norder to consummate the Merger, the Company shall establish, prior to or as soon\nas practicable following the date upon which the Proxy Statement has been\ncleared by the SEC, a record date (which shall be prior to or as soon as\npracticable following the date upon which the Proxy Statement has been cleared\nby the SEC) for, duly call, give notice of, convene and hold a\n\n\n                                       38\n\n\nmeeting of its stockholders (the \"COMPANY STOCKHOLDERS MEETING\") for the purpose\nof considering and taking action upon this Agreement and the Merger and (with\nthe consent of Parent) such other matters as may in the reasonable judgment of\nthe Company be appropriate for consideration at the Company Stockholders\nMeeting. The Company shall, through its Board of Directors, recommend to its\nstockholders adoption of this Agreement in accordance with Section 1.2(c)\nhereof, and except as expressly permitted by this Agreement, shall not withdraw,\namend or modify in a manner adverse to Parent its recommendation. The Company\nshall ensure that the Company Stockholders Meeting is called, noticed, convened,\nheld and conducted, and that all proxies solicited in connection with the\nCompany Stockholders Meeting are solicited, in compliance with all applicable\nLegal Provisions. Once the Company Stockholders Meeting has been called and\nnoticed, the Company shall not postpone or adjourn the Company Stockholders\nMeeting (other than for the absence of a quorum) without the consent of Parent.\nThe Board of Directors of the Company shall include the Recommendations in the\nProxy Statement as such Recommendations pertain to the Merger and this\nAgreement. The Company shall use its reasonable best efforts to solicit from\nstockholders of the Company proxies in favor of this Agreement and the Merger\nand shall take all other actions necessary or advisable to secure the vote or\nconsent of stockholders required by the DGCL to effect the Merger. Without\nlimiting the generality of the foregoing, (i) the Company agrees that its\nobligation to duly call, give notice of, convene and hold a meeting of the\nholders of Company Common Stock, as required by this Section 5.1(b), shall not\nbe affected by the withdrawal, amendment or modification of the Recommendations\nand (ii) the Company agrees that its obligations pursuant to this Section 5.1(b)\nshall not be affected by the commencement, public proposal, public disclosure or\ncommunication to the Company of any Takeover Proposal.\n\n          (c) Notwithstanding the foregoing clauses (a) and (b) above, if Parent\nshall acquire at least ninety percent (90%) of the outstanding Shares in the\nOffer (and if permitted Section 253 of the DGCL), subject to the satisfaction or\n(to the extent permitted hereunder) waiver of all conditions to the Merger, the\nparties hereto shall take all necessary actions to cause the Merger to become\neffective, as soon as practicable after the acceptance for exchange and purchase\nof such Shares pursuant to the Offer, without a meeting of stockholders, in\naccordance with Section 253 of the DGCL.\n\n     Section 5.2 LETTERS OF THE COMPANY'S ACCOUNTANTS.\n\n          The Company shall use its reasonable best efforts to cause to be\ndelivered to Parent a letter from KPMG LLP, the Company's independent public\naccountants, dated a date within two (2) Business Days before the date on which\nthe Form S-4 shall become effective addressed to Parent and the Company, in form\nand substance reasonably satisfactory to Parent and customary in scope and\nsubstance for comfort letters delivered by independent public accountants in\nconnection with registration statements similar to the Form S-4.\n\n     Section 5.3 [RESERVED]\n\n     Section 5.4 ACCESS TO INFORMATION; CONFIDENTIALITY. Upon reasonable notice,\neach party shall (and shall cause its Subsidiaries to) afford to the officers,\nemployees, accountants, counsel, financial advisors and other representatives of\nthe other party reasonable access during normal business hours, during the\nperiod prior to the Effective Time, to such of its properties, \n\n\n                                       39\n\n\nbooks, contracts, commitments, records, officers and employees as the other\nparty may reasonably request and, during such period, such party shall (and\nshall cause its Subsidiaries to) furnish promptly to the other party (a) a copy\nof each report, schedule, registration statement and other document filed,\npublished, announced or received by it during such period pursuant to the\nrequirements of Federal or state securities laws, as applicable (other than\ndocuments which such party is not permitted to disclose under applicable Law),\nand (b) consistent with its legal obligations, all other information concerning\nit and its business, properties and personnel as such other party may reasonably\nrequest; provided, however, that either party may restrict the foregoing access\nto the extent that it reasonably concludes, after consultation with outside\ncounsel, that (i) any Legal Provision of any Governmental Entity applicable to\nsuch party requires such party or its Subsidiaries to restrict access to any\nproperties or information, (ii) providing such access would result in the loss\nof the attorney client privilege, (iii) such document discusses the pricing or\ndollar value of the transactions contemplated by this Agreement or (iv) the\ndocuments contain competitively sensitive information, the sharing of which\ncould constitute a violation of any applicable antitrust laws. The parties shall\nhold any such information in confidence to the extent required by, and in\naccordance with, the provisions of the letter agreements dated as of December\n13, 2001 and December 19, 2001, respectively, between Parent and the Company (as\nit may be amended from time to time, the \"CONFIDENTIALITY AGREEMENT\"). Each\nparty shall make all reasonable best efforts to minimize disruption to the\nbusiness of the other party and its Subsidiaries which may result from the\nrequests for data and information hereunder. All requests for access and\ninformation shall be coordinated through senior executives of the parties to be\ndesignated. Any investigation by Parent or the Company shall not affect the\nrepresentations and warranties of Parent or the Company, as the case may be.\n\n     Section 5.5 REASONABLE BEST EFFORTS.\n\n          (a) Upon the terms and subject to the conditions set forth in this\nAgreement, each of the parties agrees to use its reasonable best efforts to\ntake, or cause to be taken, all actions, and to do, or cause to be done, and to\nassist and cooperate with the other parties in doing, all things necessary,\nproper or advisable to consummate and make effective, in the most expeditious\nmanner practicable, the Offer, the Merger and the other transactions\ncontemplated by this Agreement, including using reasonable best efforts to\naccomplish the following:\n\n               (i) the taking of all reasonable acts necessary to cause the\nconditions to Closing to be satisfied,\n\n               (ii) the obtaining of all necessary actions or nonactions,\nwaivers, consents and approvals from Governmental Entities and the making of all\nnecessary registrations and filings (including filings with Governmental\nEntities, if any) and the taking of all reasonable steps as may be necessary to\nobtain an approval or waiver from, or to avoid an action or proceeding by any\nGovernmental Entity,\n\n               (iii) the obtaining of all necessary consents, approvals or\nwaivers from third parties other than Governmental Entities (provided that if\nobtaining any such consent, approval or waiver would require any action other\nthan the payment of a nominal amount, such action shall be subject to the\nconsent of Parent, not to be unreasonably withheld),\n\n\n                                       40\n\n\n                (iv) the defending of any lawsuits or other legal proceedings, \nwhether judicial or administrative, challenging this Agreement or the\nconsummation of the transactions contemplated hereby or thereby, including\nseeking to have any stay or temporary restraining order entered by any court or\nother Governmental Entity vacated or reversed and\n\n               (v) the execution and delivery of any additional instruments \nnecessary to consummate the transactions contemplated by, and to fully carry out\nthe purposes of, this Agreement. In connection with and without limiting the\nforegoing Parent, Sub and the Company and their respective Boards of Directors\nshall, if any state takeover statute or similar statute becomes applicable to\nthis Agreement, the Offer, the Merger or any other transactions contemplated by\nthis Agreement, take all action necessary, with the reasonable cooperation of\nthe other parties hereto if reasonably requested, to ensure that the Offer, the\nMerger and the other transactions contemplated by this Agreement may be\nconsummated as promptly as practicable on the terms contemplated by this\nAgreement and otherwise to minimize the effect of such statute or regulation on\nthis Agreement, the Offer, the Merger and the other transactions contemplated by\nthis Agreement. The Company shall give Parent the opportunity to participate, on\nan advisory basis, in the defense of any stockholder litigation against the\nCompany and\/or its directors relating to the transactions contemplated by this\nAgreement.\n\n          (b) In furtherance and not in limitation of the foregoing, each party\nhereto agrees to make an appropriate filing of a Notification and Report Form\npursuant to the HSR Act and any other Regulatory Law with respect to the\ntransactions contemplated hereby as promptly as practicable after the date\nhereof and to supply as promptly as practicable any additional information and\ndocumentary material that may be requested pursuant to the HSR Act and any other\nRegulatory Law and to take all other actions necessary to cause the expiration\nor termination of the applicable waiting periods under the HSR Act as soon as\npracticable. \"REGULATORY LAW\" means the Sherman Act, as amended, the Clayton\nAct, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and\nall other applicable federal, state and foreign, if any, statutes, rules,\nregulations, orders, decrees, administrative and judicial doctrines and other\nlaws that are designed or intended to prohibit, restrict or regulate (i) foreign\ninvestment or (ii) actions having the purpose or effect of monopolization or\nrestraint of trade or lessening of competition.\n\n          (c) Each of Parent and the Company shall, in connection with the \nefforts referenced in Section 5.5(b) to obtain all requisite approvals and\nauthorizations for the transactions contemplated by this Agreement under the HSR\nAct or any other Regulatory Law, use its reasonable best efforts to (i)\ncooperate in all respects with each other in connection with any filing or\nsubmission and in connection with any investigation or other inquiry, including\nany proceeding initiated by a private party, (ii) promptly inform the other\nparty of any communication received by such party from, or given by such party\nto, the Antitrust Division of the Department of Justice (the \"DOJ\"), the Federal\nTrade Commission (the \"FTC\") or any other Governmental Entity and of any\nmaterial communication received or given in connection with any proceeding by a\nprivate party, in each case regarding any of the transactions contemplated\nhereby, and (iii) subject to Section 5.4 and unless prohibited from doing so by\napplicable Law, permit the other party to review any communication given by it\nto, and consult with each other in advance of any meeting or conference with,\nthe DOJ, the FTC or any such other Governmental Entity or, in connection with\nany proceeding by a private party, with any other Person, and to the \n\n\n\n\n                                       41\n\n\n\n\n\nextent appropriate or permitted by the DOJ, the FTC or such other applicable\nGovernmental Entity or other Person, give the other party the opportunity to\nattend and participate in such meetings and conferences.\n\n          (d) Nothing in this Agreement shall require any of Parent and its \nSubsidiaries or the Company and its Subsidiaries to sell, hold separate or\notherwise dispose of or conduct any portion of their business in a specified\nmanner, or agree to sell, hold separate or otherwise dispose of or conduct any\nportion of their business in a specified manner, or permit the sale, holding\nseparate or other disposition of, any assets of Parent, the Company or their\nrespective Subsidiaries or the conduct of their business in a specified manner,\nwhether as a condition to obtaining any approval from a Governmental Entity by\nApril 30, 2002 or any other Person or for any other reason, if such sale,\nholding separate or other disposition or the conduct of their business in a\nspecified manner would reasonably be expected to have a Material Adverse Effect\non Parent and its Subsidiaries (including the Surviving Corporation and its\nSubsidiaries), taken together, after giving effect to the Merger.\n\n     Section 5.6 STOCK OPTIONS; EMPLOYEE BENEFITS.\n\n          (a) As of the Effective Time, (i) each outstanding option to purchase\nshares of Company Common Stock (a \"STOCK OPTION\") granted under any plan or\narrangement providing for the grant of options to purchase shares of Company\nCommon Stock to current or former officers, directors, employees or consultants\nof the Company or its Subsidiaries (the \"COMPANY STOCK PLANS\"), whether vested\nor unvested, shall be assumed by Parent and converted into an option (such\noption, an \"ADJUSTED OPTION\") to acquire, on the same terms and conditions as\nwere applicable under the Stock Option, the number of shares of Parent Common\nStock (rounded up to the nearest whole share) determined by multiplying the\nnumber of shares of Company Common Stock subject to such Stock Option by the\nOption Exchange Ratio, at a price per share of Parent Common Stock equal to (A)\nthe aggregate exercise price for the shares of Company Common Stock otherwise\npurchasable pursuant to such Stock Option (assuming all conditions to the\nexercise of such Stock Option had then been met) divided by (B) the aggregate\nnumber of shares of Parent Common Stock deemed purchasable pursuant to such\nStock Option; provided, that, such exercise price shall be rounded up to the\nnearest whole cent. In addition, any and all repurchase rights under any Company\nStock Plan held by the Company on the shares of Company Common Stock shall, to\nthe extent permitted by Law, be assigned to Parent and shall be converted into\nrepurchase rights held by Parent as the corresponding shares of Parent Common\nStock. The Company represents that, prior to the Effective Time, it shall take\nthe necessary and appropriate actions to evidence that the option treatment\ndescribed in this Section 5.6(a) is the appropriate adjustment as authorized and\npermitted under the terms of the plans and agreements pursuant to which the\nStock Options were granted. For purposes of this Agreement, the \"OPTION EXCHANGE\nRATIO\" shall equal the quotient of (i) Ten Dollars and Fifty Cents ($10.50)\ndivided by (ii) the Parent Market Price.\n\n          (b) In the case of any Stock Options that are \"incentive stock \noptions\" as defined in Section 422 of the Code, the exercise price, the number\nof shares of Parent Common Stock and the terms and conditions of such Stock\nOptions shall be determined in accordance with Section 5.6(a) hereof, subject to\nsuch adjustments as are necessary to comply with the requirements of Section\n424(a) of the Code.\n\n\n\n\n                                       42\n\n\n\n\n\n          (c) Parent shall, prior to the Effective Time, take all action \nnecessary so that, at the Effective Time, by virtue of the Merger and without\nthe need of any further corporate action, Parent shall assume the Company Stock\nPlans with the result that all obligations of the Company under the Company\nStock Plans with respect to Stock Options outstanding at the Effective Time,\nshall be obligations of Parent, and all Adjusted Options shall be exercisable,\non the same terms as were applicable under the Stock Options, for shares of\nParent Common Stock following the Effective Time, subject to this Section 5.6.\n\n          (d) At or prior to the Effective Time, Parent shall take all corporate\naction necessary to reserve for issue a sufficient number of shares of Parent\nCommon Stock for delivery upon exercise of Adjusted Options. As soon as\npracticable after the Effective Time, Parent shall file a Registration Statement\non Form S-1, Form S-3 or Form S-8 as the case may be (or any successor or other\nappropriate forms), with respect to the shares of Parent Common Stock subject to\nsuch Adjusted Options, and shall maintain the effectiveness of such registration\nstatement and the current status of the prospectus or prospectuses contained\ntherein, for so long as such Adjusted Options remain outstanding. Following the\nEffective Time, Parent shall use its reasonable best efforts to provide that\nholders of Adjusted Options do not experience delays in exercising and settling\ntheir Adjusted Options.\n\n          (e) Parent shall take, and shall cause the Surviving Corporation and \nits Subsidiaries to take, the following actions: (i) waive any limitations\nregarding preexisting conditions and eligibility waiting periods under any\nhealth benefit plan maintained by any of them for the benefit of individuals who\nare employees of the Company and its Subsidiaries immediately prior to the\nEffective Time (the \"EMPLOYEES\") to the extent such preexisting condition or\nwaiting period did not apply to the Employee under a comparable plan of the\nCompany or its Subsidiary immediately prior to the Effective Time, (ii) provide\neach Employee with credit for any co-payments and deductibles paid prior to the\nEffective Time for the calendar year in which the Effective Time occurs, in\nsatisfying any applicable deductible or out-of-pocket requirements under such\nhealth plans, and (iii) for eligibility, vesting and benefit accrual purposes\n(but not for purposes of benefit accruals under any defined benefit pension plan\nand not to the extent such crediting would result in a duplication of benefits)\nunder all compensation and benefit plans and policies applicable to the\nEmployees, treat all service by the Employees with the Company or any of its\nSubsidiaries and their predecessor entities before the Effective Time as service\nwith Parent and its Subsidiaries. Parent shall cause the Surviving Corporation\nto honor all employment, retention and severance arrangements (including,\nwithout limitation, those set forth on Section 5.6(e) of the Company Disclosure\nMemorandum) and all obligations to current and former employees of the Company\nand its Subsidiaries thereunder. Parent shall take all actions necessary to\ncause the Surviving Corporation and its Subsidiaries to satisfy the obligations\nlisted in Section 5.6(e) of the Company Disclosure Memorandum.\n\n          (f) The Company shall terminate its Employee Stock Purchase Plan (the\n\"ESPP\") in accordance with its terms to take effect as of or immediately prior\nto the Effective Time. The offerings under the ESPP are currently suspended, and\nthe Company shall not commence a new offering under its ESPP after the date of\nthis Agreement.\n\n          (g) The provisions of this Section 5.6 shall not create in any \nemployee or former employee of the Company or any of its Subsidiaries any rights\nto employment or \n\n\n\n\n                                       43\n\n\n\n\n\ncontinued employment with Parent, the Surviving Corporation, the Company or any\nof their respective Subsidiaries.\n\n     Section 5.7 INDEMNIFICATION, EXCULPATION AND INSURANCE.\n\n          (a) Parent shall cause all rights to indemnification and exculpation \nfrom liabilities for acts or omissions occurring at or prior to the Effective\nTime now existing in favor of the current or former directors or employees or\nofficers of the Company (each such Person being an \"Indemnified Party\") as\nprovided in the Company's Certificate of Incorporation, Bylaws or any\nindemnification agreement between such directors or officers and the Company (in\neach case, as in effect on the date hereof) to be assumed by the Surviving\nCorporation in the Merger, without further action, as of the Effective Time and\nsuch rights shall survive the Merger and shall continue in full force and effect\nin accordance with their terms. Without limiting the foregoing, Parent shall\nindemnify and hold harmless, and provide advancement of expenses to, all past\nand present directors, officers and employees of the Company and its\nSubsidiaries (in all of their capacities) to the fullest extent permitted by the\nCompany's Certificate of Incorporation, Bylaws or any indemnification agreement\nbetween such directors, officers and employees for acts or omissions occurring\nat or prior to the Effective Time (including for acts or omissions occurring in\nconnection with the approval of this Agreement and the transactions contemplated\nhereby).\n\n          (b) Any Indemnified Party wishing to claim indemnification under \nparagraph (a) of this Section 5.7 shall promptly notify the Surviving\nCorporation, upon learning of any such claim, action, suit, proceeding or\ninvestigation, but the failure to so notify shall not relieve the Surviving\nCorporation of any liability it may have to such Indemnified Party to the extent\nsuch failure does not materially prejudice the Surviving Corporation. The\nSurviving Corporation may, at its own expense: (i) participate in the defense of\nany claim, suit, action or proceeding; or (ii) at any time during the course of\nany such claim, suit, action or proceeding, assume the defense thereof, unless\nthe Indemnified Parties (or any of them) determine in good faith (after\nconsultation with legal counsel) that there is, under applicable standards of\nprofessional conduct, a conflict or any significant issue between the positions\nof Parent and any of such Indemnified Parties, provided that the Surviving\nCorporation's counsel shall be reasonably satisfactory to the Indemnified\nParties. If the Surviving Corporation assumes such defense, the Indemnified\nParties shall have the right (but not the obligation) to participate in the\ndefense thereof and to employ counsel, at their own expense, separate from the\ncounsel employed by the Surviving Corporation. Whether or not the Surviving\nCorporation chooses to assume the defense of any such claim, suit, action or\nproceeding, the Surviving Corporation and Parent shall cooperate in the defense\nthereof. If the Surviving Corporation fails to so assume the defense thereof,\nthe Indemnified Parties may retain counsel reasonably satisfactory to the\nSurviving Corporation and the Surviving Corporation shall pay the reasonable\nfees and expenses of such counsel promptly after statements therefor are\nreceived; provided that the Indemnified Parties on whose behalf expenses are\nadvanced provide (x) a written affirmation of their good faith belief that the\nstandard of conduct necessary for indemnification under Section 145 of the DGCL\nhas been met, and (y) an undertaking to repay such advances if it is ultimately\ndetermined that such Indemnified Party is not entitled to indemnification under\nSection 145 of the DGCL. Neither Parent nor the Surviving Corporation shall be\nliable for any settlement effected without its written consent (which consent\nshall not be unreasonably withheld or delayed); provided that, in the event that\nany claim or \n\n\n\n\n                                       44\n\n\n\n\n\nclaims for indemnification are asserted or made within such a period of six (6)\nyears after the Effective Time, all rights to indemnification in respect of any\nsuch claim or claims (and the matters giving rise thereto) shall continue until\nthe disposition of any and all such claim or claims (and the matters giving rise\nthereto). The Indemnified Parties as a group may retain only one law firm (in\naddition to local counsel) to represent them with respect to a single action\nunless any Indemnified Party determines in good faith (after consultation with\nlegal counsel) that there is, under applicable standards of professional\nconduct, a conflict on any significant issue between the positions of any two or\nmore Indemnified Parties. In the event Parent or the Surviving Corporation or\nany of their respective successors or assigns (i) consolidates with or merges\ninto any other Person and shall not be the continuing or surviving corporation\nor entity of such consolidation or merger, or (ii) transfers or conveys all or\nsubstantially all of its properties and assets to any Person, then, and in each\nsuch case, to the extent necessary to effectuate the purposes of this Section\n5.7, proper provision shall be made so that the successors and assigns of Parent\nand the Surviving Corporation assume the obligations set forth in this Section\n5.7, and none of the actions described in clause (i) or (ii) shall be taken\nuntil such provision is made. Nothing in this Section 5.7(b) is intended to\nmodify adversely any existing rights to indemnification of an Indemnified Party\nfrom the Company.\n\n          (c) For six (6) years after the Effective Time, Parent shall cause the\nSurviving Corporation to maintain in effect the Company's current officers',\ndirectors' and employees' liability insurance in respect of acts or omissions\noccurring at or prior to the Effective Time, covering each Person currently\ncovered by the Company's officers' and directors' liability insurance policy (a\ncopy of which has been heretofore delivered to Parent), on terms with respect to\nsuch coverage and amount no less favorable than those of such policy in effect\non the date hereof; provided that Parent may substitute therefor policies of\nParent containing terms with respect to coverage and amount no less favorable to\nsuch directors and officers; provided, however, that in satisfying its\nobligation under this Section 5.7(c) Parent shall not be obligated to pay annual\npremiums in excess of two hundred percent (200%) of the amount per annum paid by\nthe Company in its last full fiscal year; and provided further that if Parent is\nnot able to obtain such coverage for such two hundred percent (200%) amount,\nParent shall nevertheless be obligated to provide such coverage as may be\nobtained annually for such two hundred percent (200%) amount and provided\nfurther that notwithstanding the foregoing, the Surviving Corporation may\nsatisfy its obligations under this Section 5.7(c) by purchasing a \"tail\" policy\nunder the Company's existing directors' and officers' insurance policy that (i)\nhas an effective term of six (6) years from the Effective Time, (ii) covers\nthose Persons who are currently covered, or will be covered on or prior to the\nEffective Time, by the Company's directors' and officers' insurance policy in\neffect on the date hereof for actions and omissions occurring on or prior to the\nEffective Time and (iii) contains terms and conditions (including without\nlimitation coverage amounts) that are at least as favorable in the aggregate as\nthe terms and conditions of the Company's directors' and officers' insurance\npolicy in effect on the date hereof.\n\n          (d) The Certificate of Incorporation and Bylaws of the Surviving \nCorporation shall contain, and Parent shall cause the Surviving Corporation to\nfulfill and honor, provisions with respect to indemnification and exculpation\nthat are substantially identical to those set forth in the Certificate of\nIncorporation and Bylaws of the Company as of the date of this Agreement, which\nprovisions shall not be amended, repealed or otherwise modified for a period of\nsix (6) \n\n\n\n\n                                       45\n\n\n\n\n\nyears from the Effective Time in any manner that would adversely affect the\nrights thereunder of any of the Indemnified Parties.\n\n          (e) The obligations of Parent or the Surviving Corporation under this\nSection 5.7 are subject to the conditions that each Indemnified Party shall\ncomply with the reasonable requests of the Surviving Corporation or Parent in\ndefending or settling any action hereunder and that any Indemnified Party shall\napprove any proposed settlement of any such action if (i) such settlement\ninvolves no finding or admission of any liability by any Indemnified Party, and\n(ii) the sole relief provided in connection with such settlement is monetary\ndamages that are paid in full by the Surviving Corporation or Parent.\n\n          (f) The provisions of this Section 5.7 are (i) intended to be for the\nbenefit of, and will be enforceable by, each Indemnified Party, his or her heirs\nand his or her representatives and (ii) in addition to, and not in substitution\nfor, any other rights to indemnification or contribution that any such Person\nmay have by contract or otherwise. Parent hereby guarantees the performance by\nSurviving Corporation of its obligations under this Section 5.7.\n\n     Section 5.8 FEES AND EXPENSES.\n\n          (a) Except as provided in this Section 5.8, all fees and expenses \nincurred in connection with this Agreement, the Offer, the Merger and the other\ntransactions contemplated by this Agreement shall be paid by the party incurring\nsuch fees or expenses, whether or not the Offer or the Merger is consummated.\n\n          (b) In the event that (1) a bona fide Takeover Proposal shall have \nbeen publicly disclosed or has been made directly to the Company's stockholders\nor any Person has announced an intention (whether or not conditional) to make a\nbona fide Takeover Proposal and thereafter this Agreement is terminated (x) by\nParent or the Company pursuant to Section 7.1(b)(i) (as a result of a failure to\nachieve the Minimum Condition), (y) by Parent pursuant to Section 7.1(c)(i)\n(provided that the breach or failure to perform giving rise to Parent's right to\nterminate under Section 7.1(c)(i) shall be willful and material) or (z) by\nParent pursuant to Section 7.1(e)(vii) and, in any case, within twelve (12)\nmonths of termination either the Company enters into definitive agreement with\nrespect to a Takeover Proposal or a Takeover Proposal is consummated (provided\nthat for this purpose the percentage in the definition of Takeover Proposal\nshall be fifty percent (50%) in lieu of fifteen percent (15%)) or (2) this\nAgreement is terminated (x) by the Company pursuant to Section 7.1(f) or (y) by\nParent pursuant to Section 7.1(e) (other than Section 7.1(e)(vii)), then the\nCompany shall pay Parent a fee equal to $15.0 million (the \"TERMINATION FEE\"),\npayable by wire transfer of immediately available funds, such payment to be made\n(A) in the case of the termination contemplated by clause (1), on the earlier of\nthe date the Company enters into a definitive agreement or a Takeover Proposal\nis consummated, (B) in the case of a termination contemplated by clause (2)(x),\nno later than immediately prior to such termination, and in the case of\ntermination contemplated by clause 2(y), no later than the date of such\ntermination. Simultaneously with the payment of the Termination Fee, the Company\nshall reimburse Parent by wire transfer of immediately available funds for all\nof its documented out-of-pocket expenses incurred in connection with this\nAgreement and the transactions contemplated hereby (including documented fees\nand expenses of accountants, attorneys and financial advisors) up to an\naggregate of $2.0 million (the \n\n\n\n\n                                       46\n\n\n\n\n\n\"EXPENSES\"). The Company acknowledges that the agreements contained in this\nSection 5.8(b) are an integral part of the transactions contemplated by this\nAgreement, and that, without these agreements, Parent would not enter into this\nAgreement. If Parent shall successfully bring an action to enforce its rights\nunder this Section 5.8(b), the Company shall reimburse Parent for its reasonable\nfees and expenses in connection therewith and shall pay Parent interest on the\nTermination Fee and Expenses from the date the Termination Fee becomes payable\nto the date of payment at the publicly announced prime rate of Citibank, N.A. in\neffect on the date the Termination Fee became payable.\n\n          (c) Parent shall make payment to the Company (by wire transfer of \nimmediately available funds) in the amount of $30.0 million within two (2)\nBusiness Days after and excluding the date this Agreement is terminated (i) by\nthe Company pursuant to Section 7.1(g) or (ii) by the Company or the Parent on\nor after May 31, 2002 pursuant to Section 7.1(b)(ii) if the waiting period (and\nany extension thereof) applicable to the Offer under the HSR Act shall not have\nexpired or been terminated or if any Restraint shall be in effect preventing the\nconsummation of the Offer at the time of such termination.\n\n     Section 5.9 PUBLIC ANNOUNCEMENTS.\n\n          Parent and the Company shall consult with each other before issuing,\nand give each other the opportunity to review and comment upon, any press\nrelease or other public statements with respect to the transactions contemplated\nby this Agreement, including the Offer and the Merger, and shall not issue any\nsuch press release or make any such public statement prior to such consultation,\nexcept as may be required by applicable Law, court process or by obligations\npursuant to any listing agreement with any national securities exchange or\nnational securities quotation system. In addition to the foregoing, neither\nParent nor the Company shall issue any press release or otherwise make any\npublic statement or disclosure concerning nonpublic information relating to the\nother party's business, financial condition or results of operations without the\nconsent of the other party, which consent shall not be unreasonably withheld or\ndelayed.\n\n     Section 5.10 AFFILIATES.\n\n          As soon as practicable after the date hereof, and in no event more\nthan twenty (20) days prior to the Initial Expiration Date, the Company shall\ndeliver to Parent a letter identifying all Persons who are, at the time this\nAgreement is submitted for adoption by the stockholders of the Company,\n\"affiliates\" of the Company for purposes of Rule 145 under the Securities Act.\nThe Company shall use its reasonable best efforts to cause each such Person to\ndeliver to Parent at least ten (10) days prior to the Initial Expiration Date a\nwritten agreement substantially in the form attached as Exhibit 5.10 hereto.\n\n     Section 5.11 NASDAQ LISTING.\n\n          Parent shall use its reasonable best efforts to cause the shares of\nParent Common Stock to be issued in the Offer and the Merger and such other\nshares of Parent Common Stock to be reserved for issuance in connection with the\nOffer and the Merger to be approved for listing on the Nasdaq National Market,\nsubject to official notice of issuance, prior to the Closing Date.\n\n\n\n\n                                       47\n\n\n\n\n\n     Section 5.12 TAX TREATMENT.\n\n          Parent and the Company intend that the Transaction will qualify as a\nreorganization within the meaning of Section 368(a) of the Code. Parent and the\nCompany shall each use all reasonable efforts to cause the Transaction to so\nqualify. From and after the date of this Agreement, each party hereto shall use\nits reasonable best efforts to cause the Transaction to qualify, and shall not,\nwithout the prior written consent of the other parties hereto, knowingly take\nany actions or cause any actions to be taken which could reasonably be expected\nto prevent the Transaction from qualifying as a reorganization under the\nprovisions of Section 368(a) of the Code. Following the Effective Time, neither\nthe Surviving Corporation nor Parent nor any of their respective affiliates\nshall take any action or cause any action to be taken which could reasonably be\nexpected to cause the Transaction to fail to qualify as a reorganization under\nSection 368(a) of the Code. Parent shall use its reasonable best efforts to\nobtain an opinion of Skadden, Arps, Slate, Meagher &amp; Flom LLP, or another\nnationally recognized United States Federal income tax counsel or \"Big Five\"\naccounting firm (based on the facts and customary representations and\nassumptions) that the Transaction will be treated as a \"reorganization\" within\nthe meaning of Section 368(a) of the Code (the \"TAX OPINION\"). Parent, the\nCompany and Sub agree to provide certifications reasonably requested by counsel\nissuing such Tax Opinion. Notwithstanding anything express or implied to the\ncontrary in this Agreement, but subject to the provisions of this Section 5.12,\nif the Tax Opinion is not obtained, then the Reverse Merger shall be effected\ninstead of the Forward Merger.\n\n     Section 5.13 NOTICES OF CERTAIN EVENTS.\n\n          Each party hereto shall promptly notify the other parties orally and\nin writing of:\n\n          (a) the receipt by such party or any of such party's Subsidiaries of \nany notice or other communication from any Person alleging that the consent of\nsuch Person is or may be required in connection with the transactions\ncontemplated by this Agreement;\n\n          (b) subject to any applicable legal restrictions, the receipt by such \nparty or any of such party's Subsidiaries of any notice or other communication\nfrom any Governmental Entity in connection with the transactions contemplated by\nthis Agreement;\n\n          (c) such party's obtaining Knowledge of any actions, suits, claims,\ninvestigations or proceedings commenced or threatened against, relating to or\ninvolving or otherwise affecting any of Parent, Sub or the Company, as the case\nmay be, or any of their respective Subsidiaries which relate to the consummation\nof the transactions contemplated by this Agreement; and\n\n          (d) such party's obtaining Knowledge of the occurrence, or failure to \noccur, of any event which occurrence or failure to occur will be likely to cause\nthe conditions set forth in Article VI not to be satisfied; provided, however,\nthat no such notification shall affect the representations, warranties or\nobligations of the parties or the conditions to the obligations of the parties\nhereunder, or limit or otherwise affect the remedies available hereunder to the\nparty receiving such notice.\n\n\n\n\n                                       48\n\n\n\n\n\n     Section 5.14 CONVEYANCE TAXES.\n\n          The Company and Parent shall cooperate in the preparation, execution\nand filing of all returns, questionnaires, applications or other documents\nregarding any real property transfer or gains, sales, use, transfer, value\nadded, stock transfer and stamp taxes, any transfer, recording, registration and\nother fees, and any similar taxes which become payable in connection with the\ntransaction contemplated by this Agreement that are required or permitted to be\nfiled on or before the Effective Time.\n\n     Section 5.15 STOCKHOLDER AGREEMENTS.\n\n          Concurrently with the execution and delivery of this Agreement,\nRichard Johnson shall execute and deliver to Parent an agreement substantially\nin the form of Exhibit 5.15 hereto (the \"STOCKHOLDER AGREEMENT\"), pursuant to\nwhich, among other things, such Stockholder is agreeing to vote all of the\nshares of Company Common Stock owned, beneficially or of record, by him to\napprove the Merger and to tender all such shares into the Offer, subject to\nexceptions provided for in such agreement.\n\n     Section 5.16 MATTERS.\n\n          Prior to the Effective Time, Parent and the Company shall take all\nsuch steps as may be required to cause any dispositions of Company Common Stock\n(including derivative securities with respect to the Company Common Stock)\nresulting from the transactions contemplated by this Agreement by each\nindividual who is subject to the reporting requirements of Section 16(a) of the\nExchange Act with respect to the Company to be exempt under Rule 16b-3\npromulgated under the Exchange Act, such steps to be taken in accordance with\nthe No-Action Letter, dated January 12, 1999, issued by the SEC to Skadden,\nArps, Slate, Meagher &amp; Flom LLP.\n\n     Section 5.17 ANTITRUST NOTICE.\n\n          Within five (5) Business Days of the date on which the DOJ, the FTC\nor any other agency, branch or instrumentality of the United States federal\ngovernment has first filed a complaint, motion, petition or similar document\nwith a United States federal courts seeking to enjoin the consummation of the\nOffer, the Merger or any of the other transactions contemplated hereby, Parent\nshall deliver a notice to the Company pursuant to Section 8.2 including a copy\nof such complaint, motion, petition or similar document.\n\n                                   ARTICLE VI\n\n                              CONDITIONS PRECEDENT\n\n     Section 6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.\n\n          The respective obligation of each party to effect the Merger is\nsubject to the satisfaction or waiver on or prior to the Closing Date of the\nfollowing conditions:\n\n\n\n\n                                       49\n\n\n\n\n\n          (a) Stockholder Approval.  If required under the DGCL, the Company \nshall have obtained the Company Stockholder Approval.\n\n          (b) No Injunctions or Restraints. No temporary restraining order, \npreliminary or permanent injunction or other judgment or order issued by any\ncourt of competent jurisdiction or other statute, law, rule, legal restraint or\nprohibition (collectively, \"Restraints\") shall be in effect preventing the\nconsummation of the Merger.\n\n          (c) Purchase of Shares in Offer.  Parent shall have purchased, or \ncaused to be purchased, Shares pursuant to the Offer.\n\n     Section 6.2 FRUSTRATION OF CLOSING CONDITIONS.\n\n          None of the Company, Parent or Sub may rely on the failure of any\ncondition set forth in Section 6.1 to be satisfied if such failure was caused by\nsuch party's failure to use its reasonable best efforts to consummate the Merger\nand the other transactions contemplated by this Agreement, as required by and\nsubject to Section 5.5.\n\n                                  ARTICLE VII\n\n                        TERMINATION, AMENDMENT AND WAIVER\n\n     Section 7.1 TERMINATION.\n\n          This Agreement may be terminated at any time prior to the Effective\nTime, whether before or after the Stockholder Approval:\n\n          (a) by mutual written consent of Parent, Sub and the Company;\n\n          (b) by either Parent or the Company:\n\n               (i) if the Offer shall have expired or been terminated in \naccordance with the terms of this Agreement without Parent or Sub having\naccepted for exchange any Shares pursuant to the Offer;\n\n               (ii) if the Offer shall not have been consummated by March 31, \n2002 for any reason; provided, however, that the right to terminate this\nAgreement under this Section 7.1(b)(ii) shall not be available to (A) Parent\nbefore May 31, 2002 if the waiting period (and any extension thereof) applicable\nto the Offer under the HSR Act shall not have expired or been terminated or if\nany Restraint shall be in effect preventing the consummation of the Offer at the\ntime of such termination or (B) any party whose action or failure to act has\nbeen a principal cause of or resulted in the failure of the Offer to be\nconsummated on or before such date; or\n\n               (iii) if any Restraint having any of the effects set forth in \nSection 6.1(b) shall be in effect and shall have become final and nonappealable;\nprovided that the party seeking to terminate this Agreement pursuant to this\nSection 7.1(b)(iii) shall have used reasonable best efforts to prevent the entry\nof and to remove such Restraint;\n\n\n\n\n                                       50\n\n\n\n\n          (c) by Parent, if (i) prior to the purchase of Shares pursuant to the\nOffer there has been a breach by the Company of any representation, warranty,\ncovenant or agreement set forth in this Agreement, which breach is reasonably\nlikely to result in any condition set forth in Annex I not being satisfied (and\nsuch breach is not reasonably capable of being cured and such condition is not\nreasonably capable of being satisfied within thirty (30) days after the receipt\nof notice thereof); or (ii) due to an occurrence or circumstance that would\nresult in a failure to satisfy any condition set forth in Annex I hereto, Sub\nshall have (x) failed to commence the Offer within thirty (30) days following\nthe date of this Agreement, (y) terminated the Offer without having accepted any\nShares for payment thereunder or (z) failed to accept Shares for payment\npursuant to the Offer by March 31, 2002, unless such action or inaction under\nclauses (x), (y) or (z) shall have been caused by or resulted from the failure\nof Parent or Sub to perform, in any material respect, any of their material\ncovenants or agreements contained in this Agreement, or the material breach by\nParent or Sub of any of their material representations or warranties contained\nin this Agreement;\n\n          (d) by the Company if Sub shall have (i) failed to commence the Offer\nwithin thirty (30) days following the date of this Agreement, (ii) terminated\nthe Offer without having accepted any Shares for payment thereunder or (iii)\nfailed to accept shares of Company Common Stock for payment pursuant to the\nOffer by March 31, 2002, unless such action or inaction under clauses (i), (ii)\nor (iii) shall have been caused by or resulted from the failure of the Company\nto perform, in any material respect, any of its material covenants or agreements\ncontained in this Agreement, or the material breach by the Company of any of its\nmaterial representations or warranties contained in this Agreement;\n\n          (e) by Parent, if prior to the Appointment Time (i) the directors of\nthe Company shall have failed to include in the Schedule 14D-9 or the Proxy\nStatement the Recommendations, (ii) the directors of the Company shall have\nwithdrawn the Recommendations, (iii) the directors of the Company shall have\nmodified or changed the Recommendations in a manner adverse to Parent or Sub (it\nbeing agreed that any disclosure of information required by applicable Law\nregarding the Company's operations shall not be deemed a modification or change\nof the Recommendations in a manner adverse to Parent or Sub), provided that\nParent shall not be entitled to terminate this Agreement pursuant to this clause\n(iii) unless it has notified the Company in writing that it intends to terminate\nthe Agreement pursuant to this clause (iii) and the Company has not, within two\n(2) Business Days after receipt of Parent's notice, revised the Recommendations\nin a manner not so adverse, (iv) a tender or exchange offer relating to\nsecurities of the Company shall have been commenced and the Company shall not\nhave sent to its security holders, within fifteen (15) Business Days after the\ncommencement of such tender or exchange offer (or such longer period as the\nCompany advises Parent it requires to obtain the information necessary to\nevaluate such offer), a statement disclosing that the Company's Board of\nDirectors recommends rejection of such tender or exchange offer, (v) the\ndirectors of the Company shall have approved or recommended to the stockholders\nof the Company a Takeover Proposal, (vi) the directors of the Company shall have\napproved or recommended that the stockholders of the Company tender their shares\nof Company Common Stock into any tender offer or exchange offer that is a\nTakeover Proposal or is related thereto, (vii) the Company willfully breaches\nany of its obligations under Section 4.2 of this Agreement that results in a\nPerson making a Takeover Proposal, (viii) the Company shall have materially\nbreached its obligations under this Agreement by reason of a failure to file the\n\n\n                                       51\n\n\nSchedule 14D-9 in accordance with Section 1.2 or call the Company Stockholders\nMeeting in accordance with Section 5.1(b), or (ix) the directors of the Company\nshall have adopted a resolution to do any of the foregoing specified in clauses\n(i), (ii), (iii), (iv), (v), (vi) or (viii); or\n\n          (f) by the Company, if, prior to the Appointment Time, the Board of\nDirectors of the Company has provided written notice to Parent that the Company\nintends to enter into a binding written agreement for a Superior Proposal (with\nsuch termination becoming effective upon the Company entering into such binding\nwritten agreement); provided, however, that (i) the Company shall have complied\nwith Section 4.2 in all material respects; (ii) the Company shall have (A)\nnotified Parent in writing of its receipt of such Superior Proposal, (B) further\nnotified Parent in writing that the Company intends to enter into a binding\nagreement with respect to such Superior Proposal subject to clause (iii) of this\nSection 7.1(f) and (C) attached the most current written version of such\nSuperior Proposal (or a summary containing all material terms and conditions of\nsuch Superior Proposal) to such notice referred to in clause (B), (iii) Parent\ndoes not make, within 72 hours after receipt of the Company's written notice\npursuant to clause (ii)(B) above, an offer that the Board of Directors of the\nCompany shall have reasonably concluded in good faith (following consultation\nwith its financial advisor and outside counsel) is as favorable to the\nstockholders of the Company as such Superior Proposal and (iv) the Company pays\nthe Termination Fee and Expenses in accordance with Section 5.8(b) concurrently\nwith entering into such binding written agreement.\n\n          (g) By the Company, if, prior to the Effective Time, the Company\nnotifies Parent of such termination pursuant to Section 8.2 within ten (10)\nBusiness Days after receipt of a notice from Parent pursuant to Section 5.17\nhereof.\n\n     Section 7.2 EFFECT OF TERMINATION.\n\n          In the event of termination of this Agreement by either the Company\nor Parent as provided in Section 7.1, this Agreement shall forthwith become void\nand have no effect, without any liability or obligation on the part of Parent,\nSub or the Company, other than the provisions of the second sentence of Section\n5.4 (obligation to keep confidential nonpublic information received from the\nother party) and Section 5.8 (fees and expenses), this Section 7.2 and Article\nVIII, which provisions shall survive such termination, provided that,\nnotwithstanding anything to the contrary contained in this Agreement, neither\nParent nor the Company shall be relieved or released from any liabilities or\ndamages arising out of its willful and material breach of this Agreement.\n\n     Section 7.3 AMENDMENT.\n\n          This Agreement may be amended by the parties hereto at any time before\nor after approval of the matters presented in connection with the Merger to the\nstockholders of the Company; provided, however, that after any such approval,\nthere shall be made no amendment that by law requires further approval by the\nstockholders of the Company without such approval. This Agreement may not be\namended except by an instrument in writing signed on behalf of each of the\nparties hereto.\n\n\n                                       52\n\n\n     Section 7.4 EXTENSION; WAIVER.\n\n          At any time prior to the Effective Time, the parties may (i) extend\nthe time for the performance of any of the obligations or other acts of the\nother parties, (ii) waive any inaccuracies in the representations and warranties\ncontained herein or in any document delivered pursuant hereto or (iii) subject\nto the proviso of Section 7.3, waive compliance with any of the agreements or\nconditions contained herein. Any agreement on the part of a party to any such\nextension or waiver shall be valid only if set forth in an instrument in writing\nsigned on behalf of such party. The failure of any party to this Agreement to\nassert any of its rights under this Agreement or otherwise shall not constitute\na waiver of such rights.\n\n                                  ARTICLE VIII\n\n                               GENERAL PROVISIONS\n\n     Section 8.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.\n\n          None of the representations, warranties, covenants and other\nagreements in this Agreement or in any instrument delivered pursuant to this\nAgreement, including any rights arising out of any breach of such\nrepresentations, warranties, covenants and other agreements, shall survive the\nEffective Time, except for those covenants and agreements contained herein and\ntherein (including Sections 5.6(e) and 5.7) that by their terms apply or are to\nbe performed in whole or in part after the Effective Time and this Article VIII.\n\n     Section 8.2 Notices.\n\n          All notices, requests, claims, demands and other communications\nhereunder shall be in writing and shall be deemed given, and shall be effective\nupon receipt, if delivered personally, telecopied (which is confirmed) or sent\nby overnight courier (providing proof of delivery) to the parties at the\nfollowing addresses (or at such other address for a party as shall be specified\nby like notice):\n\n                if to Parent or Sub, to:  Yahoo! Inc.\n                                          701 First Avenue\n                                          Sunnyvale, California 94089\n                                          Telephone:  (408) 349-3300\n                                          Telecopier: (408) 349-3400\n                                          Attention:  Chief Executive Officer\n\n                and                       Yahoo! Inc.\n                                          701 First Avenue\n                                          Sunnyvale, California 94089\n                                          Telephone:  (408) 349-3300\n                                          Telecopier: (408) 349-3400\n                                          Attention:  General Counsel\n\n\n                                       53\n\n\n                with a copy to            Skadden, Arps, Slate, Meagher &amp; Flom\n                (which shall not          LLP\n                constitute notice):       525 University Avenue, Suite 1100\n                                          Palo Alto, California  94301\n                                          Telephone:  650-470-4500\n                                          Telecopier: 650-470-4570\n                                          Attention:  Kenton J. King,\n                                          Esq.\n\n                if to the Company, to:    HotJobs.com, Ltd.\n                                          406 West 31st Street\n                                          New York, New York 10001\n                                          Telephone:  (212) 699-5300\n                                          Telecopier: (917) 438-2632\n                                          Attention:  Chief Executive Officer\n\n                and                       HotJobs.com, Ltd.\n                                          406 West 31st Street\n                                          New York, New York 10001\n                                          Telephone:  (212) 699-5300\n                                          Telecopier: (917) 438-2632\n                                          Attention:  General Counsel\n\n                with a copy to            Wachtell, Lipton, Rosen &amp; Katz\n                (which shall not          51 West 52nd Street\n                constitute notice):       New York, NY  10014\n                                          Telephone: 212-403-1000\n                                          Telecopier: 212-403-2000\n                                          Attention:  Andrew R. Brownstein, Esq.\n                                                      Mitchell S. Presser, Esq.\n\n\n     Section 8.3 DEFINITIONS.\n\n          For purposes of this Agreement:\n\n          (a) an \"AFFILIATE\" of any Person means another Person that directly or\nindirectly, through one or more intermediaries, controls, is controlled by, or\nis under common control with, such first Person;\n\n          (B) \"BUSINESS DAY\" means any day other than Saturday, Sunday or any\nother day on which banks are legally permitted to be closed in New York, New\nYork;\n\n          (c) \"KNOWLEDGE\" of any Person that is not an individual means, with\nrespect to any matter in question, the actual knowledge of any of such person's\nexecutive officers having primary responsibility for such matter;\n\n          (d) \"MATERIAL ADVERSE EFFECT\" with respect to the Company or Parent,\nmeans any change, effect, event, occurrence or state of facts (or any\ndevelopment that has had or is \n\n\n                                       54\n\n\nreasonably likely to have any change or effect) that is materially adverse to\nthe business, financial condition or results of operations of such entity and\nits Subsidiaries, taken as a whole, provided, however, none of the following\nshall be deemed in themselves, either alone or in combination, to constitute,\nand none of the following shall be taken into account in determining whether\nthere has been a Material Adverse Effect: (i) any change in the market price or\ntrading volume of such entity's capital stock after the date hereof, (ii) any\nadverse change, event or effect arising from or relating to general business or\neconomic conditions in the United States (including prevailing interest rate and\nstock market levels), (iii) any adverse change, event or effect arising from or\nrelating to the general state of the industries and market sectors in which such\nentity operates and (iv) the loss of existing customers or employees, a\nreduction in business by, or revenue from, existing customers, or any reduction\nin job seekers, in each case resulting primarily from the announcement or\ntermination of the TMP Agreement or the announcement or consummation of the\nOffer and the Merger;\n\n          (e) \"PERSON\" means an individual, corporation, partnership, limited\nliability company, joint venture, association, trust, unincorporated\norganization or other entity;\n\n          (f) \"SIGNIFICANT SUBSIDIARY\" shall have the meaning ascribed to such\nterm in Rule 1-02 of Regulation S-X of the SEC, except as listed in Section\n8.3(f) of the Parent Disclosure Memorandum;\n\n          (g) a \"SUBSIDIARY\" of any Person means, with respect to such Person,\nany corporation, partnership, joint venture or other legal entity of which such\nperson (either alone or through or together with any other subsidiary), owns,\ndirectly or indirectly, fifty percent (50%) or more of the stock or other equity\ninterests the holders of which are generally entitled to vote for the election\nof the Board of Directors or other governing body of such corporation or other\nlegal entity;\n\n          (h) \"SUPERIOR PROPOSAL\" means a bona fide written proposal made by a\nPerson other than a party hereto that is (a) for a Takeover Proposal (except\nthat references in the definition of \"Takeover Proposal\" to \"15%\" shall be\n\"50%\") and (b) is on terms which the Board of Directors of the Company in good\nfaith concludes (following receipt of the advice of its financial advisors and\noutside counsel), taking into account, among other things, the likelihood of\nconsummation and all legal, financial, regulatory and other aspects of the\nproposal and the Person making the proposal and of the transactions contemplated\nby this Agreement and the parties to this Agreement, (i) would, if consummated,\nresult in a transaction that is more favorable to the Company's stockholders (in\ntheir capacities as stockholders), taking into account, among other things, the\nlikelihood of consummation and all legal, financial, regulatory and other\naspects of the proposal and this Agreement and the Person making the proposal\nand Parent, than the transactions contemplated by this Agreement and (ii) is\nreasonably capable of being completed by March 31, 2002; and\n\n          (i) \"TRADING DAY\" means any day on which the Nasdaq National Market or\nsuch national securities exchange that is the primary exchange for Parent Common\nStock is open for trading.\n\nSection 8.4 Interpretation.\n\n\n                                       55\n\n\n          When a reference is made in this Agreement to an Article, a Section,\nExhibit or Schedule, such reference shall be to an Article of, a Section of, or\nan Exhibit or Schedule to, this Agreement unless otherwise indicated. The table\nof contents and headings contained in this Agreement are for reference purposes\nonly and shall not affect in any way the meaning or interpretation of this\nAgreement. Whenever the words \"include\", \"includes\" or \"including\" are used in\nthis Agreement, they shall be deemed to be followed by the words \"without\nlimitation\". The words \"hereof\", \"herein\" and \"hereunder\" and words of similar\nimport when used in this Agreement shall refer to this Agreement as a whole and\nnot to any particular provision of this Agreement. All terms defined in this\nAgreement shall have the defined meanings when used in any certificate or other\ndocument made or delivered pursuant hereto unless otherwise defined therein. The\ndefinitions contained in this Agreement are applicable to the singular as well\nas the plural forms of such terms and to the masculine as well as to the\nfeminine and neuter genders of such term. Any agreement, instrument or statute\ndefined or referred to herein or in any agreement or instrument that is referred\nto herein means such agreement, instrument or statute as from time to time\namended, modified or supplemented, including (in the case of agreements or\ninstruments) by waiver or consent and (in the case of statutes) by succession of\ncomparable successor statutes and references to all attachments thereto and\ninstruments incorporated therein. References to a Person are also to its\npermitted successors and assigns. References to this Agreement include\nreferences to the Company Disclosure Memorandum and Parent Disclosure\nMemorandum. Each Section of this Agreement is qualified by the matters set forth\nin the related Section of the Company Disclosure Memorandum and of the Parent\nDisclosure Memorandum and by such matters set forth any place else in this\nAgreement or in the Company Disclosure Memorandum or the Parent Disclosure\nMemorandum where the applicability of such qualification to the Section of this\nAgreement is reasonably apparent.\n\n     Section 8.5 COUNTERPARTS.\n\n          This Agreement may be executed in two or more counterparts, all of\nwhich shall be considered one and the same agreement and shall become effective\nwhen two or more counterparts have been signed by each of the parties and\ndelivered to the other parties.\n\n     Section 8.6 ENTIRE AGREEMENT; THIRD-PARTY BENEFICIARIES.\n\n          This Agreement and the Confidentiality Agreement (a) constitute the\nentire agreement, and supersede all prior agreements and understandings, both\nwritten and oral, among the parties with respect to the subject matter of this\nAgreement and the Confidentiality Agreement and (b) except for the provisions of\nSections 5.6(e) (including the corresponding section of the Company Disclosure\nMemorandum) and 5.7 are not intended to confer upon any Person other than the\nparties any rights or remedies.\n\n     Section 8.7 GOVERNING LAW.\n\n          This Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware, regardless of the laws that might\notherwise govern under applicable principles of conflicts of laws thereof.\n\n    Section 8.8 ASSIGNMENT.\n\n\n                                       56\n\n\n          Neither this Agreement nor any of the rights, interests or obligations\nhereunder shall be assigned, in whole or in part, by operation of law or\notherwise by any of the parties without the prior written consent of the other\nparties, except that Sub may assign, in its sole discretion, any of or all its\nrights, interests and obligations under this Agreement to Parent or to any\ndirect or indirect wholly-owned newly-formed United States Subsidiary of Parent,\nprovided that no such assignment shall adversely affect the intended tax-free\nnature of the transaction and provided further that no such assignment shall\nrelieve Sub of any of its obligations hereunder. Subject to the preceding\nsentence, this Agreement will be binding upon, inure to the benefit of, and be\nenforceable by, the parties and their respective successors and assigns.\n\n     Section 8.9 ENFORCEMENT.\n\n          The parties agree that irreparable damage would occur and that the\nparties would not have any adequate remedy at law in the event that any of the\nprovisions of this Agreement were not performed in accordance with their\nspecific terms or were otherwise breached. It is accordingly agreed that the\nparties shall be entitled to an injunction or injunctions to prevent breaches of\nthis Agreement and to enforce specifically the terms and provisions of this\nAgreement in the Chancery or other Courts of the State of Delaware, this being\nin addition to any other remedy to which they are entitled at law or in equity.\nIn addition, each of the parties hereto (a) consents to submit itself to the\npersonal jurisdiction of the Chancery or other Courts of the State of Delaware\nin the event any dispute arises out of this Agreement or the transactions\ncontemplated by this Agreement, (b) agrees that it will not attempt to deny or\ndefeat such personal jurisdiction by motion or other request for leave from any\nsuch court, (c) agrees that it will not bring any action relating to this\nAgreement or the transactions contemplated by this Agreement in any court other\nthan the Chancery or other Courts of the State of Delaware, and each of the\nparties irrevocably waives the right to trial by jury, and (d) each of the\nparties irrevocably consents to service of process by first class certified\nmail, return receipt requested, postage prepaid, to the address at which such\nparty is to receive notice.\n\n     Section 8.10  SEVERABILITY.\n\n          If any term or other provision of this Agreement is invalid, illegal\nor incapable of being enforced by any rule of law or public policy, all other\nconditions and provisions of this Agreement shall nevertheless remain in full\nforce and effect. Upon such determination that any term other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall\nnegotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible to the fullest extent permitted by\napplicable Law in an acceptable manner to the end that the transactions\ncontemplated hereby are fulfilled to the extent possible.\n\n\n               [REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]\n\n\n\n                                       57\n\n\n          WHEREOF, Parent, Sub and the Company have caused this\nAgreement to be signed by their respective officers thereunto duly authorized,\nall as of the date first written above.\n\n                                    YAHOO! INC.\n\n\n                                    By:   \/s\/ TERRY SEMEL     \n                                          ---------------------\n                                          Name: Terry Semel\n                                          Title: Chairman and Chief Executive \n                                                 Officer\n  \n\n                                    HJ ACQUISITION CORP.\n\n\n                                    By:   \/s\/ TERRY SEMEL     \n                                          ---------------------\n                                          Name: Terry Semel\n                                          Title: Chief Executive Officer\n\n\n                                    HOTJOBS.COM, LTD.\n\n\n                                    By:   \/s\/ DIMITRI BOYLAN      \n                                          ---------------------\n                                          Name: Dimitri Boylan\n                                          Title: President and \n                                                 Chief Executive Officer\n\n\n\n\n\n\n                                   ANNEX I\n\n     Notwithstanding any other provisions of the Offer, and in addition to (and\nnot in limitation of) Sub's rights to extend and amend the Offer at any time in\nits sole discretion (subject to the provisions of the Merger Agreement), Sub\nshall not be required to accept for payment or, subject to any applicable rules\nand regulations of the SEC, including Rule 14e-l(c) under the Exchange Act\n(relating to Sub's obligation to pay for or return tendered Shares promptly\nafter termination or withdrawal of the Offer), pay for, and may delay the\nacceptance for payment of or, subject to the restriction referred to above, the\npayment for, any validly tendered Shares unless the Minimum Condition shall have\nbeen satisfied. Furthermore, notwithstanding any other provisions of the Offer,\nSub shall not be required to accept for payment or pay for any validly tendered\nShares if, at the scheduled expiration date (i) the waiting period (and any\nextension thereof) applicable to the Offer under the HSR Act shall not have\nexpired or been terminated, (ii) the Offer Registration Statement shall not have\nbecome effective under the Securities Act or shall be the subject of any stop\norder or proceeding seeking a stop order, (iii) the shares of Parent Common\nStock to be issued in the Offer and the Merger and such other shares of Parent\nCommon Stock to be reserved for issuance in connection with the Offer and the\nMerger shall not have been approved for listing on the Nasdaq National Market,\nsubject to official notice of issuance or (iv) any of the following events shall\noccur and be continuing:\n\n          (a) Restraints shall be in effect preventing the consummation of the\nOffer or the Merger;\n\n          (b) there shall be pending any suit, action or proceeding by any\nGovernmental Entity (i) challenging the acquisition by Parent or Sub of any of\nthe Shares, seeking to restrain or prohibit the consummation of the Offer or the\nMerger, or seeking to place limitations on the ownership of the Shares (or\nshares of common stock of the Surviving Corporation) by Parent or Sub or seeking\nto obtain from the Company, Parent or Sub any damages that are material in\nrelation to the Company, (ii) seeking to prohibit or materially limit the\nownership or operation by the Company or its Subsidiaries, Parent or any of\nParent's Subsidiaries of any material portion of any business or of any assets\nof the Company, Parent or any of Parent's Subsidiaries, or to compel the\nCompany, Parent or any of Parent's Subsidiaries to divest or hold separate any\nmaterial portion of any business or of any assets of the Company, Parent or any\nof their respective Subsidiaries, as a result of the Offer or the Merger or\n(iii) seeking to prohibit Parent or any of its Subsidiaries from effectively\ncontrolling in any material respect the business or operations of the Company or\nits Subsidiaries;\n\n          (c) there shall have not been obtained, other than the filing provided\nfor under Section 1.6 and filings pursuant to the HSR Act (which are addressed\nin Sections 5.5(b) and (c)), all consents, approvals and actions of, filings\nwith and notices to any Governmental Entity required of Parent, the Company or\nany of their Subsidiaries to consummate the Offer or the Merger, the issuance of\nParent Common Stock in the Offer or the Merger and the other transactions\ncontemplated hereby, the failure of which to be obtained or taken, individually\nor in the aggregate, would reasonably be expected to have a Material Adverse\nEffect on Parent and its Subsidiaries (including the Surviving Corporation and\nits Subsidiaries), taken together after giving effect to the Offer and the\nMerger, provided, that, no consents, approvals, actions, filings \n\n\n                                       58\n\n\nor notices related to any antitrust requirements of any jurisdiction, except as \nset forth in clause (i) of the preamble to this Annex I, shall be a condition \nhereunder;\n\n          (d) any representation or warranty of the Company contained in the\nAgreement shall not be true and correct in all respects without reference to any\nqualification as to materiality such that the aggregate effect of any\ninaccuracies in such representations and warranties will have a Material Adverse\nEffect on the Company, in each case as of the date of such determination, except\nto the extent such representations and warranties expressly relate to an earlier\ndate, in which case as of such earlier date and except for the representations\nand warranties contained in Section 3.1(q)(v) of the Merger Agreement which\nshall be qualified as to materiality with respect to Parent and its\nSubsidiaries, taken as a whole;\n\n          (e) Parent shall not have received a certificate signed on behalf of\nthe Company by the chief executive officer and the chief financial officer of\nthe Company to the effect that each representation and warranty of the Company\ncontained in the Agreement is true and correct in all respects without reference\nto any qualification as to materiality such that the aggregate effect of any\ninaccuracies in such representations and warranties will not have a Material\nAdverse Effect on the Company, in each case as of the date of such\ndetermination, except to the extent such representations and warranties\nexpressly relate to an earlier date, in which case as of such earlier date and\nexcept for the representations and warranties contained in Section 3.1(q)(v) of\nthe Merger Agreement which shall be qualified as to materiality with respect to\nParent and its Subsidiaries, taken as a whole;\n\n          (f) there shall have not been obtained all consents, the absence of\nwhich, in the aggregate, would be reasonably likely to have a Material Adverse\nEffect on the Company, provided, that, no consents, approvals, actions, filings\nor notices related to any antitrust requirements of any jurisdiction, except as\nset forth in clause (i) of the preamble to this Annex I, shall be a condition\nhereunder;\n\n          (g) the Company (i) shall have not performed or not complied with all\nagreements and covenants required to be performed by it under the Agreement that\nare qualified as to Material Adverse Effect or (ii) shall have not performed or\nnot complied with all agreements and covenants required to be performed by it\nunder the Agreement that are not qualified as to Material Adverse Effect except\nwhere such nonperformance or noncompliance individually or in the aggregate\nwould not reasonably be expected to have a Material Adverse Effect on the\nCompany;\n\n          (h) Parent shall not have received a certificate signed on behalf of\nthe Company by the chief executive officer and the chief financial officer of\nthe Company to the effect that the Company (i) shall have performed or complied\nwith all agreements and covenants required to be performed by it under the\nAgreement that are qualified as to Material Adverse Effect and (ii) shall have\nperformed or complied with all agreements and covenants required to be performed\nby it under the Agreement that are not qualified as to Material Adverse Effect\nexcept where such nonperformance or noncompliance individually or in the\naggregate would not reasonably be expected to have a Material Adverse Effect on\nthe Company;\n\n                                     \n\n\n          (i) Parent shall not have received from each Person named in the\nletter referred to in Section 5.10 an executed copy of an agreement\nsubstantially in the form of Exhibit 5.10 hereto.\n\n     The foregoing conditions are for the benefit of Parent and Sub, may be\nasserted by Parent or Sub and may be waived by Parent or Sub in whole or in part\nat any time and from time to time, subject to the terms of the Merger Agreement.\nThe failure by Parent or Sub at any time to exercise any of the foregoing rights\nshall not be deemed a waiver of any such right and, each such right shall be\ndeemed an ongoing right which may be asserted at any time and from time to time.\n\n     The capitalized terms used in this Annex I shall have the meanings set\nforth in the Merger Agreement to which it is annexed, except that the term\n\"Merger Agreement\" shall be deemed to refer to the Agreement to which this Annex\nI is annexed.\n\n\n\n                                                                    Exhibit 5.10\n\n\n                       FORM OF COMPANY AFFILIATE AGREEMENT\n\n      THIS AFFILIATE AGREEMENT, dated as of ______________ (the \"AGREEMENT\"),\nis made by the undersigned stockholder (\"STOCKHOLDER\") of HotJobs.com, Ltd.,\na Delaware corporation (the \"COMPANY\"), in favor of and for the benefit of\nYahoo! Inc., a Delaware corporation (\"PARENT\"). Capitalized terms not\notherwise defined in this Agreement have the meanings ascribed to them in the\nMerger Agreement (as defined below).\n\n                                    RECITALS\n\n      A. Parent and the Company have entered into an Agreement and Plan of\nMerger, dated as of December [], 2001 (the \"MERGER AGREEMENT\"), pursuant to\nwhich [HJ Acquisition Corp., a Delaware corporation and a wholly owned\nsubsidiary of Parent][OR ANOTHER DIRECT OR INDIRECT WHOLLY-OWNED SUBSIDIARY OF\nPARENT] (\"MERGER SUB\"), (subject to the conditions set forth therein) shall\ncommence an offer (the \"OFFER\") in which each of the issued and outstanding\nshares of common stock, par value $0.01, of the Company (\"COMPANY COMMON STOCK\")\nmay be exchanged for the right to receive from Parent (A) a fraction of a share\nof common stock, par value $0.001 per share of Parent as determined in\naccordance with the Merger Agreement and (B) cash, without interest, in an\namount to be paid in accordance with the Merger Agreement followed by either the\nmerger of Merger Sub with and into the Company or the merger of the Company with\nand into Merger Sub (the \"MERGER\");\n\n      B. Pursuant to the Merger Agreement (a) subject to the terms of the Offer,\nupon consummation of the Offer, Merger Sub shall accept for payment and pay for\nany shares of Company Common Stock validly tendered and not withdrawn in the\nOffer, including shares of Company Common Stock validly tendered and not\nwithdrawn by Stockholder as of such time, and (b) at the Effective Time,\noutstanding shares of Company Common Stock, including any Company Common Stock\nowned by Stockholder as of the Effective Time, will be converted into the right\nto receive shares of Parent Common Stock and cash, without interest, in\naccordance with Article II of the Merger Agreement;\n\n      C.  The execution and delivery of this Agreement by Stockholder is a\nmaterial inducement to Parent to enter into the Merger Agreement; and\n\n      D. Stockholder has been advised that Stockholder may be deemed to be an\n\"affiliate\" of the Company, as such term is used for purposes of paragraphs (c)\nand (d) of Rule 145 of the Securities and Exchange Commission (the \"COMMISSION\")\nunder the Securities Act, although nothing contained herein shall be construed\nas an admission by Stockholder that Stockholder is in fact an affiliate of the\nCompany.\n\n      NOW, THEREFORE, intending to be legally bound, the parties agree as\nfollows:\n\n            SECTION 1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.\n\n                                       \n\n\n                  (a) Stockholder is the holder and \"BENEFICIAL OWNER\" (as\ndefined in Rule 13d-3 under the Exchange Act) of the number of outstanding\nshares of Company Common Stock set forth beneath Stockholder's signature on the\nsignature page hereof (the \"COMPANY SHARES\"), and Stockholder has good and valid\ntitle to the Company Shares, free and clear of any liens, pledges, security\ninterests, adverse claims, equities, options, proxies, charges, encumbrances or\nrestrictions of any nature. Stockholder has the sole right to vote and to\ndispose of the Company Shares.\n\n                  (b) Stockholder is the holder of options to purchase the\nnumber of shares of Company Common Stock set forth beneath Stockholder's\nsignature on the signature page hereof (the \"COMPANY OPTIONS\"), and Stockholder\nhas good and valid title to the Company Options, free and clear of any liens,\npledges, security interests, adverse claims, equities, options, proxies,\ncharges, encumbrances or restrictions of any nature.\n\n                  (c) Stockholder does not own, of record or beneficially,\ndirectly or indirectly, any securities of the Company other than the Company\nShares and the Company Options.\n\n                  (d) Stockholder has carefully read this Agreement and, to the\nextent Stockholder felt necessary, has discussed with counsel the limitations\nimposed on Stockholder's ability to sell, transfer or otherwise dispose of the\nCompany Shares, the Company Options, the shares of Parent Common Stock that\nStockholder is to receive in the Offer and\/or the Merger and the options to\npurchase shares of Parent Common Stock that Stockholder is to receive in respect\nof the Company Options in connection with the Offer and\/or the Merger.\nStockholder fully understands the limitations that this Agreement and federal\nand applicable state securities laws place upon Stockholder's ability to sell,\nassign, transfer or otherwise dispose of securities of the Company and\nsecurities of Parent.\n\n                  (e) Stockholder acknowledges and understands that the\nrepresentations, warranties and covenants made by Stockholder set forth in this\nAgreement will be relied upon by Parent, the Company and their respective\naffiliates and counsel, and that substantial losses and damages may be incurred\nby such persons if Stockholder's representations, warranties or covenants are\nbreached.\n\n      SECTION 2. COMPLIANCE WITH RULE 145 AND THE SECURITIES ACT.\n\n                  (a) Stockholder has been advised that (i) the issuance of\nshares of Parent Common Stock in connection with the Offer and the Merger is\nexpected to be effected pursuant to a Registration Statement filed by Parent on\nForm S-4, and the resale of such shares will be subject to the restrictions set\nforth in Rule 145 under the Securities Act unless such shares are otherwise\ntransferred pursuant to an effective registration statement under the Securities\nAct or an appropriate exemption from registration, and (ii) Stockholder may be\ndeemed to be an affiliate of the Company. Stockholder accordingly agrees not to\nsell, pledge, transfer or otherwise dispose of any shares of Parent Common Stock\nissued to Stockholder in the Offer and\/or the Merger unless (i) such sale,\npledge, \n\n\n                                       2\n\n\ntransfer or other disposition is made in conformity with the requirements of\nRule 145 under the Securities Act, (ii) such sale, pledge, transfer or other\ndisposition is made pursuant to an effective registration statement under the\nSecurities Act, or (iii) Stockholder delivers to Parent a written opinion of\ncounsel, in form and substance reasonably acceptable to Parent, to the effect\nthat such sale, pledge, transfer or other disposition is otherwise exempt from\nregistration under the Securities Act.\n\n                  (b) Parent will give stop transfer instructions to its\ntransfer agent with respect to any Parent Common Stock received by Stockholder\npursuant to the Offer or the Merger, and there will be placed on the\ncertificates representing such Parent Common Stock, or any substitutions\ntherefor, legends stating in substance:\n\n      \"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION\n      TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933 APPLIES,\n      AND MAY ONLY BE TRANSFERRED IN CONFORMITY WITH RULE 145, PURSUANT TO AN\n      EFFECTIVE REGISTRATION STATEMENT, OR IN ACCORDANCE WITH A WRITTEN OPINION\n      OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER, IN FORM AND SUBSTANCE TO\n      THE EFFECT THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE\n      SECURITIES ACT OF 1933.\"\n\nand\n\n      \"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,\n      PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH\n      THE REQUIREMENTS OF THE CONDITIONS SPECIFIED IN THE AFFILIATE AGREEMENT\n      DATED AS OF ________________ BETWEEN THE HOLDER OF THIS CERTIFICATE AND\n      THE ISSUER, A COPY OF WHICH AGREEMENT MAY BE INSPECTED BY THE HOLDER OF\n      THIS CERTIFICATE AT THE PRINCIPAL OFFICES OF THE ISSUER OR FURNISHED BY\n      THE ISSUER TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST AND\n      WITHOUT CHARGE.\"\n\nThe legends set forth above shall be removed (by delivery of a substitute\ncertificate without such legends), and Parent shall so instruct its transfer\nagent, if a registration statement respecting the sale of the shares has been\ndeclared effective under the Securities Act or if Stockholder delivers to Parent\n(i) satisfactory written evidence that the shares have been sold in compliance\nwith Rule 145 (in which case, the substitute certificate will be issued in the\nname of the transferee), or (ii) an opinion of counsel, in form and substance\nreasonably acceptable to Parent, to the effect that sale of the shares by the\nholder thereof is no longer subject to Rule 145.\n\n      SECTION 3.  SPECIFIC PERFORMANCE.\n\n\n                                       3\n\n\nStockholder agrees that in the event of any breach or threatened breach by\nStockholder of any covenant, obligation or other provision contained in this\nAgreement, Parent shall be entitled (in addition to any other remedy that may be\navailable to Parent) to: (a) a decree or order of specific performance or\nmandamus to enforce the observance and performance of such covenant, obligation\nor other provision; and (b) an injunction restraining such breach or threatened\nbreach. Stockholder further agrees that neither Parent nor any other person or\nentity shall be required to obtain, furnish or post any bond or similar\ninstrument in connection with or as a condition to obtaining any remedy referred\nto in this Section 3, and Stockholder irrevocably waives any right Stockholder\nmay have to require the obtaining, furnishing or posting of any such bond or\nsimilar instrument.\n\n      SECTION 4.  MISCELLANEOUS.\n\n                  (a) This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same document.\n\n                  (b) This Agreement shall be enforceable by, and shall inure to\nthe benefit of and be binding upon, the parties and their respective successors\nand assigns. As used in this Agreement, the term \"successors and assigns\" means,\nwhere the context so permits, heirs, executors, administrators, trustees and\nsuccessor trustees, and personal and other representatives.\n\n                  (c) If any provision of this Agreement or any part of any such\nprovision is held under any circumstances to be invalid or unenforceable in any\njurisdiction, then (i) such provision or part thereof shall, with respect to\nsuch circumstances and in such jurisdiction, be deemed amended to conform to\napplicable laws so as to be valid and enforceable to the fullest possible\nextent, (ii) the invalidity or unenforceability of such provision or part\nthereof under such circumstances and in such jurisdiction shall not affect the\nvalidity or enforceability of such provision or part thereof under any other\ncircumstances or in any other jurisdiction, and (iii) the invalidity or\nunenforceability of such provision or part thereof shall not affect the validity\nor enforceability of the remainder of such provision or the validity or\nenforceability of any other provision of this Agreement. Each provision of this\nAgreement is separable from every other provision of this Agreement, and each\npart of each provision of this Agreement is separable from every other part of\nsuch provision.\n\n                  (d) This Agreement is made under, and shall be construed and\nenforced in accordance with, the laws of the State of Delaware applicable to\nagreements made and to be performed solely therein, without giving effect to\nprinciples of conflicts of law. In any action between the parties hereto,\nwhether arising out of this Agreement or otherwise, (i) each of the parties\nirrevocably and unconditionally consents and submits to the jurisdiction and\nvenue of the Chancery or other Courts of the State of Delaware; (ii) if any such\naction is commenced in a state court, then, subject to applicable law, no party\nshall object to the removal of such action to any federal court located in\nDelaware; (iii) each of the parties irrevocably waives the right to trial by\njury; and (iv) each of the parties \n\n\n                                       4\n\n\nirrevocably consents to service of process by first class certified mail, return\nreceipt requested, postage prepaid, to the address at which such party is to \nreceive notice.\n\n                  (e) Stockholder shall execute and\/or cause to be delivered to\nParent such instruments and other documents and shall take such other actions as\nParent may reasonably request to effectuate the intent and purposes of this\nAgreement.\n\n                  (f) This Agreement and any Stockholders Agreement between\nStockholder and Parent collectively set forth the entire understanding of Parent\nand Stockholder relating to the subject matter hereof and thereof and supersede\nall other prior agreements and understandings between Parent and Stockholder\nrelating to the subject matter hereof and thereof.\n\n                  (g) The rights and remedies of Parent under this Agreement are\nnot exclusive of or limited by any other rights or remedies which it may have,\nwhether at law, in equity, by contract or otherwise, all of which shall be\ncumulative (and not alternative). Without limiting the generality of the\nforegoing, the rights and remedies of Parent under this Agreement, and the\nobligations and liabilities of Stockholder under this Agreement, are in addition\nto their respective rights, remedies, obligations and liabilities under common\nlaw requirements and under all applicable statutes, rules and regulations.\nNothing in this Agreement shall limit any of Stockholder's obligations, or the\nrights or remedies of Parent, under any Stockholders Agreement between Parent\nand Stockholder; and nothing in any such Stockholders Agreement shall limit any\nof Stockholder's obligations, or any of the rights or remedies of Parent, under\nthis Agreement.\n\n                  (h) This Agreement and all obligations of Stockholder\nhereunder are personal to Stockholder and may not be transferred or delegated by\nStockholder at any time. Parent may freely assign any or all of its rights under\nthis Agreement, in whole or in part, to any other person or entity without\nobtaining the consent or approval of Stockholder.\n\n                  (i) Each of the representations, warranties, covenants and\nobligations contained in this Agreement shall survive the consummation of the\nOffer and the Merger.\n\n                  (j) Counsel to the parties to the Merger Agreement shall be\nentitled to rely upon this Agreement as needed.\n\n                  (k) This Agreement shall not be modified or amended, or any\nright waived or any obligations excused, except by a written agreement signed by\nboth parties.\n\n                  (l) Notwithstanding any other provision contained in this\nAgreement, this Agreement and all obligations under this Agreement shall\nterminate upon the termination of the Merger Agreement in accordance with its\nterms.\n\n\n                                       5\n\n\nIN WITNESS WHEREOF, this Agreement is executed as of the date first stated\nabove.\n\n                                    STOCKHOLDER\n\n\n                                    By:________________________\n                                      Name:\n                                     Title:\n\nNumber of Company Shares Owned:_______________\nNumber of Shares of Company Common Stock Issuable upon Exercise of Stock\nOptions:_________\nAddress of Stockholder:\n\n---------------------------\n\n---------------------------\n\n\n\n                                                                    Exhibit 5.15\n\n\n                          FORM OF STOCKHOLDER AGREEMENT\n\n          THIS STOCKHOLDER AGREEMENT is entered into as of December [], 2001, by\nand among Yahoo! Inc., a Delaware corporation (together with its successors,\n\"PARENT\"), HJ Acquisition Corp., a Delaware corporation and a wholly owned\nsubsidiary of Parent (\"MERGER SUB\") and ___________________ (\"STOCKHOLDER\"), a\nstockholder of HotJobs.com, Ltd., a Delaware corporation (the \"COMPANY\").\n\n                                    RECITALS\n\n          A. Parent, Merger Sub and the Company are entering into an Agreement\nand Plan of Merger of even date herewith (the \"MERGER AGREEMENT\") which provides\n(subject to the conditions set forth therein) for the commencing an offer by\nMerger Sub in which each of the issued and outstanding shares of Company Common\nStock (as defined below) may be exchanged for the right to receive from Parent\n(A) a fraction of a share of common stock, par value $0.001 per share of Parent\nas determined in accordance with the Merger Agreement and (B) cash, without\ninterest, in an amount to be paid in accordance with the Merger Agreement\nfollowed by either the merger of Merger Sub with and into the Company or the\nmerger of the Company with and into Merger Sub (the \"MERGER\"). Capitalized terms\nnot otherwise defined herein shall have the respective meanings ascribed to them\nin the Merger Agreement.\n\n          B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under\nthe Exchange Act) of such number of shares of the outstanding capital stock of\nthe Company and shares subject to outstanding options as is indicated on the\nsignature page of this Agreement; and\n\n          C. In order to induce Parent and Merger Sub to enter into the Merger\nAgreement, Stockholder is entering into this Stockholder Agreement.\n\n          NOW, THEREFORE, intending to be legally bound, the parties hereto\nagree as follows:\n\n          Section 1. CERTAIN DEFINITIONS.\n\n          For purposes of this Stockholder Agreement:\n\n            1. \"COMPANY COMMON STOCK\" shall mean the common stock, par value\n$0.01 per share, of the Company.\n\n            2. \"EXPIRATION DATE\" shall mean the earliest of:\n\n               (i) the date upon which the Merger Agreement is validly\nterminated pursuant to Article VII thereof; and\n\n               (ii) the date upon which the Merger becomes effective.\n\n\n\n\n            3. Stockholder shall be deemed to \"OWN\" or to have acquired\n\"OWNERSHIP\" of a security if Stockholder is the record and\/or beneficial owner\n(as defined in Rule 13d-3 under the Exchange Act) of such security.\n\n            4. \"PERSON\" shall mean any individual, corporation, limited\nliability company, partnership, trust or other entity, or governmental\nauthority.\n\n            5. \"SUBJECT SECURITIES\" shall mean: (i) all securities of the\nCompany (including all shares of Company Common Stock and all options and other\nrights to acquire shares of Company Common Stock) Owned by Stockholder as of the\ndate of this Stockholder Agreement; and (ii) all additional securities of the\nCompany (including all additional shares of Company Common Stock and all\nadditional options and other rights to acquire shares of Company Common Stock)\nof which Stockholder acquires Ownership during the period from the date of this\nStockholder Agreement through the Expiration Date.\n\n            6. A Person shall be deemed to have a effected a \"TRANSFER\" of a\nsecurity if such Person directly or indirectly: (i) sells, pledges, encumbers,\ngrants an option with respect to, transfers, distributes or disposes of such\nsecurity or any interest in such security; (ii) enters into an agreement or\ncommitment contemplating the possible sale of, pledge of, encumbrance of, grant\nof an option with respect to, transfer of or disposition of such security or any\ninterest therein; (iii) grants any proxy, power-of-attorney or other\nauthorization or consent with respects to any such security or any interest\ntherein; (iv) deposits any such security or any interest therein into a voting\ntrust, or enters into a voting agreement or arrangement with respect to any such\nsecurity or any interest therein; or (v) takes any other action that would in\nany way restrict, limit or interfere with the performance of such Stockholder's\nobligations hereunder or the transactions contemplated hereby.\n\n          Section 2.   TRANSFER OF SUBJECT SECURITIES.\n\n            1. Transferee of Subject Securities to be Bound by this Stockholder\nAgreement. Stockholder agrees that, except as may be provided herein, during the\nperiod from the date of this Stockholder Agreement through the Expiration Date,\nStockholder shall not cause or permit any Transfer of any of the Subject\nSecurities to be effected unless each Person to which any of such Subject\nSecurities, or any interest in any of such Subject Securities, is or may be\nTransferred shall have: (a) executed a counterpart of this Stockholder Agreement\nand a irrevocable proxy in the form attached hereto as Exhibit A (with such\nmodifications as Parent may reasonably request); and (b) agreed to hold such\nSubject Securities (or interest in such Subject Securities) subject to all of\nthe terms and provisions of this Stockholder Agreement; provided, that nothing\nin this Stockholder Agreement shall prohibit Stockholder from (i) Transferring\nSubject Securities to Parent or Merger Sub pursuant to Section 3(1)(iii) hereof,\n(ii) selling at any time and from time to time up to an aggregate of one million\n(1,000,000) shares of Company Common Stock, free of any and all restrictions, to\nany Person other than, directly or indirectly, to any Person known to\nStockholder to have made (or announced its intention to make) a Takeover\nProposal or (iii) transfers to a trust, family limited \n\n\n\n                                       2\n\n\npartnership or similar entity, provided such shares remain beneficially owned by\nStockholder and subject to the restrictions of this agreement (each, a \n\"PERMITTED TRANSFER\").\n\n             2. No Transfer of Voting Rights. Stockholder shall ensure that,\nduring the period from the date of this Stockholder Agreement through the\nExpiration Date: (a) none of the Company Common Stock owned by Stockholder is\ndeposited into a voting trust; and (b) no proxy is granted, and no voting\nagreement or similar agreement is entered into, with respect to any of the\nCompany Common Stock owned by Stockholder.\n\n             3. No Transfer to Parent or Related Parties. Stockholder has no\nplan or intention to, and will not, Transfer any of the Subject Securities\n(including through derivative transactions such as equity swaps, collars, or put\nprotection arrangements which would have the economic effect of a transfer of\nthe burdens, benefits, or other facets of ownership) to Parent or any person\nrelated to Parent within the meaning of Treasury Regulation section\n1.368-1(e)(3), directly or indirectly (including through partnerships or through\nthird parties in connection with a plan to so Transfer such Subject Securities),\nexcept as pursuant to Section 3(1)(iii) hereof.\n\n          Section 3. TENDER AND VOTING OF SHARES.\n\n            1. Stockholder Agreement. Stockholder agrees that, during the period\nfrom the date of this Stockholder Agreement through the Expiration Date:\n\n               (i) at any meeting of stockholders of the Company, however\ncalled, and at every adjournment or postponement thereof, Stockholder shall (i)\nappear at the meeting, or otherwise cause all shares of Company Common Stock\nOwned by Stockholder, to be counted as present thereat for purposes of\nestablishing a quorum, (ii) vote or cause all shares of Company Common Stock\nOwned by Stockholder to be voted in favor of the approval and adoption of the\nMerger Agreement and the approval of the Merger and (iii) vote or cause all\nshares of Company Common Stock Owned by Stockholder to be voted, against (A) any\nTakeover Proposal (other than one by Parent or Merger Sub) and (B) any amendment\nof the Company's Articles of Incorporation or Bylaws or other proposal, action\nor transaction involving the Company or any of its Subsidiaries or any of its\nstockholders, which amendment or other proposal, action or transaction that\ncould reasonably be expected to prevent or materially impede or delay the\nconsummation of the Offer, the Merger or the other transactions contemplated by\nthe Merger Agreement or this Agreement or to deprive Parent of any material\nportion of the benefits anticipated by Parent to be received from the\nconsummation of the Offer, the Merger or the other transactions contemplated by\nthe Merger Agreement or this Agreement, or change in any manner the voting\nrights of Company Common Stock presented to the stockholders of the Company\n(regardless of any recommendation of the Board of Directors of the Company) or\nin respect of which vote or consent of the stockholders is requested or sought,\nunless such transaction has been approved in advance by Parent or Merger Sub;\n\n\n                                       3\n\n\n(ii) in the event written consents are solicited or otherwise sought from\nstockholders of the Company with respect to the approval or adoption of the\nMerger Agreement or with respect to the approval of the Merger, Stockholder\nshall cause to be validly executed, with respect to all shares of Company Common\nStock Owned by Stockholder as of the record date fixed for the consent to the\nproposed action, a written consent or written consents to such proposed action;\nand\n\n               (iii) subject to the right of such Stockholder to make Permitted\nTransfers, such Stockholder shall tender all shares of Company Common Stock\nOwned by Stockholder as of the date of the commencement of the Offer into the\nOffer as promptly as practicable, and in no event later than the twentieth\nbusiness day, following the commencement by Merger Sub of the Offer pursuant to\nSection 1.1 of the Merger Agreement, and such Stockholder shall not withdraw any\nshares so tendered unless the Offer is terminated or has expired without Merger\nSub or Parent purchasing all shares of common stock of the Company validly\ntendered in the Offer and not withdrawn.\n\n               (iv) At or before the Effective Time, Stockholder agrees to take\nall reasonable efforts to effect the transfer to Parent of his one appointor\nshare relating to HotJobs.com Pty. Limited.\n\n            2. Proxy. Contemporaneously with the execution of this Stockholder\nAgreement: (i) Stockholder shall deliver to Parent a proxy in the form attached\nto this Stockholder Agreement as Exhibit A, which shall be irrevocable prior to\nthe Expiration Date to the fullest extent permitted by law, with respect to the\nSubject Securities referred to therein (the \"PROXY\"); and (ii) Stockholder shall\ncause to be delivered to Parent an additional proxy (in the form attached hereto\nas Exhibit A) executed on behalf of the record owner of any Subject Securities\nthat are Owned beneficially (within the meaning of Rule 13d-3 under the Exchange\nAct), but not of record, by Stockholder; provided that any and all shares of\nCompany Common Stock that are Transferred in a Permitted Transfer shall without\nany action on the part of the Company, Parent or Stockholder be released from\nsuch Proxy.\n\n            3. No Exercise Requirement. Nothing in this Stockholder Agreement\nshall obligate Stockholder to exercise or convert any options or other rights to\nacquire shares of Company Common Stock that are Owned by the Stockholder.\n\n          Section 4. NO SOLICITATION. During the period from the date of this\nStockholder Agreement through the Expiration Date, Stockholder shall not, nor\nshall Stockholder authorize or permit any of representative of Stockholder to,\ndirectly or indirectly take any action prohibited by Section 4.2 of the Merger\nAgreement. Nothing contained in this Section 4 shall prevent Stockholder, when\nacting solely in his capacity as a director or officer of the Company, from\ntaking actions permitted under the Merger Agreement.\n\n\n                                       4\n\n\n          Section 5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder\nhereby represents and warrants to Parent as follows:\n\n            1. Authorization, etc. Stockholder has the absolute and unrestricted\nright, power, authority and legal capacity to execute and deliver this\nStockholder Agreement and the Proxy and to perform Stockholder's obligations\nhereunder and thereunder. This Stockholder Agreement and the Proxy have been\nvalidly executed and delivered by such Stockholder and constitute the legal,\nvalid and binding obligations of such Stockholder, enforceable against such\nStockholder in accordance with their terms, subject to laws of general\napplication relating to bankruptcy, insolvency and the relief of debtors, and\nthe availability of the remedy of specific performance or injunctive or other\nforms of equitable relief may be subject to equitable defenses and would be\nsubject to the discretion of the court before which any proceeding therefor may\nbe brought.\n\n            2. No Conflicts or Consents.\n\n               (i) The execution and delivery of this Stockholder Agreement and\nthe Proxy by Stockholder do not, and the performance of this Stockholder\nAgreement and the Proxy by Stockholder will not: (i) conflict with or violate\nany law, rule, regulation, order, decree or judgment applicable to Stockholder\nor by which Stockholder or any of Stockholder's properties is or may be bound or\naffected; or (ii) result in or constitute (with or without notice or lapse of\ntime) any breach of or default under, or give to any other Person (with or\nwithout notice or lapse of time) any right of termination, amendment,\nacceleration or cancellation of, or result (with or without notice or lapse of\ntime) in the creation of any encumbrance or restriction on any of the Subject\nSecurities pursuant to, any contract to which Stockholder is a party or by which\nStockholder or any of Stockholder's affiliates or properties is or may be bound\nor affected, except in the case of clause (i) or (ii) above where any of such\nevents would not have a material adverse effect on Stockholder or otherwise\nimpair Stockholder's ability to satisfy Stockholder's obligations hereunder.\n\n               (ii) The execution and delivery of this Stockholder Agreement and\nthe Proxy by Stockholder do not, and the performance of this Stockholder\nAgreement and the Proxy by Stockholder will not, require any consent or approval\nof any Person.\n\n            3. Title to Securities. As of the date of this Stockholder\nAgreement: (a) Stockholder holds of record (free and clear of any liens, claims,\noptions, rights of first refusal, co-sale rights, charges or other encumbrances,\ncollectively, \"LIENS\") the number of outstanding shares of Company Common Stock\nset forth under the heading \"Shares Held of Record\" on the signature page\nhereof; (b) Stockholder holds (free and clear of any Liens) the options and\nother rights to acquire shares of Company Common Stock set forth under the\nheading \"Options and Other Rights\" on the signature page hereof; (c) Stockholder\nOwns the additional securities of the Company set forth under the heading\n\"Additional Securities Beneficially Owned\" on the signature page \n\n\n                                       5\n\n\nhereof; and (d) Stockholder does not directly or indirectly Own any shares of\ncapital stock or other securities of the Company, or any option, warrant or\nother right to acquire (by purchase, conversion or otherwise) any shares of\ncapital stock or other securities of the Company, other than the shares and\noptions and other rights specified on the signature page hereof.\n\n            4. Accuracy of Representations. The representations and warranties\ncontained in this Stockholder Agreement are accurate in all material respects as\nof the date of this Stockholder Agreement, will be accurate in all material\nrespects at all times through the Expiration Date and will be accurate in all\nmaterial respects as of the date of the consummation of the Merger as if made on\nthat date.\n\n          Section 6. FURTHER ASSURANCES. From time to time and without\nadditional consideration, Stockholder shall (at Stockholder's sole expense)\nexecute and deliver, or cause to be executed and delivered, such additional\ntransfers, assignments, endorsements, proxies, consents and other instruments,\nand shall (at Stockholder's sole expense) take such further actions, as Parent\nmay reasonably request for the purpose of carrying out and furthering the intent\nof this Stockholder Agreement.\n\n          Section 7. MISCELLANEOUS.\n\n            1. Independence of Obligations. The covenants and obligations of\nStockholder set forth in this Stockholder Agreement shall be construed as\nindependent of any other agreement or arrangement between Stockholder, on the\none hand, and the Company or Parent, on the other. The existence of any claim or\ncause of action by Stockholder against the Company or Parent shall not\nconstitute a defense to the enforcement of any of such covenants or obligations\nagainst Stockholder.\n\n            2. Specific Performance. Stockholder agrees that in the event of any\nbreach or threatened breach by Stockholder of any covenant, obligation or other\nprovision contained in this Stockholder Agreement, Parent shall be entitled (in\naddition to any other remedy that may be available to Parent) to: (a) a decree\nor order of specific performance or mandamus to enforce the observance and\nperformance of such covenant, obligation or other provision; and (b) an\ninjunction restraining such breach or threatened breach. Stockholder further\nagrees that neither Parent nor any other person or entity shall be required to\nobtain, furnish or post any bond or similar instrument in connection with or as\na condition to obtaining any remedy referred to in this Section 7(2), and\nStockholder irrevocably waives any right Stockholder may have to require the\nobtaining, furnishing or posting of any such bond or similar instrument.\n\n            3. Other Agreements. Nothing in this Stockholder Agreement shall\nlimit any of the rights or remedies of Parent under the Merger Agreement, or any\nof the rights or remedies of Parent or any of the obligations of Stockholder\nunder any agreement between Stockholder and Parent or any certificate or\ninstrument executed on behalf of Stockholder in favor of Parent; and nothing in\nthe Merger Agreement or in any other agreement, certificate or instrument shall\nlimit any of the rights or remedies of Parent or any of the obligations of\nStockholder under this Stockholder Agreement.\n\n\n                                       6\n\n\n            4. Notices. Any notice or other communication required or permitted\nto be delivered to Stockholder or Parent under this Stockholder Agreement shall\nbe in writing and shall be deemed properly delivered, given and received when\ndelivered to the address or facsimile telephone number set forth beneath the\nname of such party below (or to such other address or facsimile telephone number\nas such party shall have specified in a written notice given to the other\nparty):\n\nIf to Parent or Merger Sub, to:\n\n                   Yahoo! Inc.\n                   701 First Avenue\n                   Sunnyvale, California 94089\n                   Attention:  General Counsel\n                   Telephone:  (408) 349-3300\n                   Facsimile:  (408) 349-3400\n\nand with a copy to:\n\n                   Skadden, Arps, Slate, Meagher &amp; Flom LLP\n                   525 University Avenue, Suite 1100\n                   Palo Alto, California 94301\n                   Attention:  Kenton J. King\n                   Telephone:  (650) 470-4500\n                   Facsimile:  (650) 470-4570\n\nIf to Stockholder: To the address set forth on the signature page hereof.\n\n            5. Severability. If any provision of this Stockholder Agreement or\nany part of any such provision is held under any circumstances to be invalid or\nunenforceable in any jurisdiction, then (a) such provision or part thereof\nshall, with respect to such circumstances and in such jurisdiction, be deemed\namended to conform to applicable laws so as to be valid and enforceable to the\nfullest possible extent, (b) the invalidity or unenforceability of such\nprovision or part thereof under such circumstances and in such jurisdiction\nshall not affect the validity or enforceability of such provision or part\nthereof under any other circumstances or in any other jurisdiction, and (c) the\ninvalidity or unenforceability of such provision or part thereof shall not\naffect the validity or enforceability of the remainder of such provision or the\nvalidity or enforceability of any other provision of this Stockholder Agreement.\nEach provision of this Stockholder Agreement is separable from every other\nprovision of this Stockholder Agreement, and each part of each provision of this\nStockholder Agreement is separable from every other part of such provision.\n\n            6. Governing Law; Jurisdiction. This Stockholder Agreement is made\nunder, and shall be construed and enforced in accordance with, the laws of the\nState of Delaware applicable to agreements made and to be performed solely\ntherein, without giving effect to principles of conflicts of law. In any action\nbetween the parties hereto, whether arising out of this Stockholder Agreement or\notherwise: (a) each of the parties \n\n\n                                       7\n\n\nirrevocably and unconditionally consents and submits to the jurisdiction and\nvenue of the Chancery or other Courts of the State of Delaware; (b) if any such\naction is commenced in a state court, then, subject to applicable law, no party\nshall object to the removal of such action to any federal court located in\nDelaware; (c) each of the parties irrevocably waives the right to trial by jury;\nand (d) each of the parties irrevocably consents to service of process by first\nclass certified mail, return receipt requested, postage prepaid, to the address\nat which such party is to receive notice in accordance with Section 7(4).\n\n            7. Waiver. No failure on the part of Parent to exercise any power,\nright, privilege or remedy under this Stockholder Agreement, and no delay on the\npart of Parent in exercising any power, right, privilege or remedy under this\nStockholder Agreement, shall operate as a waiver of such power, right, privilege\nor remedy; and no single or partial exercise of any such power, right, privilege\nor remedy shall preclude any other or further exercise thereof or of any other\npower, right, privilege or remedy. Parent shall not be deemed to have waived any\nclaim arising out of this Stockholder Agreement, or any power, right, privilege\nor remedy under this Stockholder Agreement, unless the waiver of such claim,\npower, right, privilege or remedy is expressly set forth in a written instrument\nduly executed and delivered on behalf of Parent; and any such waiver shall not\nbe applicable or have any effect except in the specific instance in which it is\ngiven.\n\n            8. Attorneys' Fees. If any legal action or other legal proceeding\nrelating to this Stockholder Agreement or the enforcement of any provision of\nthis Stockholder Agreement is brought against Stockholder, the prevailing party\nshall be entitled to recover reasonable attorneys' fees, costs and disbursements\n(in addition to any other relief to which the prevailing party may be entitled).\n\n            9. Captions. The captions contained in this Stockholder Agreement\nare for convenience of reference only, shall not be deemed to be a part of this\nStockholder Agreement and shall not be referred to in connection with the\nconstruction or interpretation of this Stockholder Agreement.\n\n            10. Officers and Directors. Stockholder, a director or officer of\nthe Company, makes no agreement or understanding herein in his or her capacity\nas such director or officer, and nothing herein will limit or affect, or give\nrise to any liability to Stockholder by virtue of, any actions taken by\nStockholder in his or her capacity as an officer or director of the Company in\nexercising its rights under the Merger Agreement.\n\n            11. Entire Agreement. This Stockholder Agreement (including the\nProxy) and any affiliate agreement between Stockholder and Parent collectively\nset forth the entire understanding of Parent and Stockholder relating to the\nsubject matter hereof and thereof and supersede all other prior agreements and\nunderstandings between Parent and Stockholder relating to the subject matter\nhereof and thereof.\n\n            12. Non-exclusivity. The rights and remedies of Parent under this\nStockholder Agreement are not exclusive of or limited by any other rights or\nremedies which it may have, whether at law, in equity, by contract or otherwise,\nall of which shall be cumulative (and not alternative). Without limiting the\ngenerality of the foregoing, the \n\n\n                                       8\n\n\nrights and remedies of Parent under this Stockholder Agreement, and the\nobligations and liabilities of Stockholder under this Stockholder Agreement, are\nin addition to their respective rights, remedies, obligations and liabilities\nunder common law requirements and under all applicable statutes, rules and\nregulations. Nothing in this Stockholder Agreement shall limit any of\nStockholder's obligations, or the rights or remedies of Parent, under any\naffiliate agreement between Parent and Stockholder; and nothing in any such\naffiliate agreement shall limit any of Stockholder's obligations, or any of the\nrights or remedies of Parent, under this Stockholder Agreement.\n\n            13. Amendments. This Stockholder Agreement may not be amended,\nmodified, altered or supplemented other than by means of a written instrument\nduly executed and delivered on behalf of Parent and Stockholder.\n\n            14. Assignment; Binding Effect. Neither this Stockholder Agreement\nnor any of the interests or obligations hereunder may be assigned or delegated\nby Stockholder, and any attempted or purported assignment or delegation of any\nof such interests or obligations shall be void. Subject to the preceding\nsentence, this Stockholder Agreement shall be binding upon Stockholder and\nStockholder's heirs, estate, executors, personal representatives, successors and\nassigns, and shall inure to the benefit of Parent and its successors and\nassigns. Without limiting any of the restrictions set forth in Section 2 or\nelsewhere in this Stockholder Agreement, this Stockholder Agreement shall be\nbinding upon any Person to whom any Subject Securities are Transferred prior to\nthe termination of this Stockholder Agreement; provided that no Person who\nreceives shares of Company Common Stock in a Permitted Transfer shall be bound\nby this Stockholder Agreement. Nothing in this Stockholder Agreement is intended\nto confer on any Person (other than Parent and its successors and assigns) any\nrights or remedies of any nature.\n\n            15. Expenses. All costs and expenses incurred in connection with the\ntransactions contemplated by this Stockholder Agreement shall be paid by the\nparty incurring such costs and expenses.\n\n            16. Termination. This Stockholder Agreement shall automatically\nterminate on the Expiration Date; provided, however, that the termination of\nthis Stockholder Agreement shall not relieve Stockholder from any liability for\nany previous breach of this Stockholder Agreement.\n\n            17. Counterparts. This Stockholder Agreement may be executed by the\nparties in separate counterparts, each of which when so executed and delivered\nshall be an original, but all of which shall together constitute one and the\nsame instrument.\n\n            18. Construction.\n\n               (i) For purposes of this Stockholder Agreement, whenever the\ncontext requires: the singular number shall include the plural, and vice versa;\nthe masculine gender shall include the feminine and neuter genders; \n\n\n                                       9\n\n\nthe feminine gender shall include the masculine and neuter genders; and the \nneuter gender  shall include masculine and feminine genders.\n\n               (ii) The parties agree that any rule of construction to the\neffect that ambiguities are to be resolved against the drafting party shall not\nbe applied in the construction or interpretation of this Stockholder Agreement.\n\n               (iii) As used in this Stockholder Agreement, the words \"include\"\nand \"including,\" and variations thereof, shall not be deemed to be terms of\nlimitation, but rather shall be deemed to be followed by the words \"without\nlimitation.\"\n\n               (iv) Except as otherwise indicated, all references in this\nStockholder Agreement to \"Sections\" and \"Exhibits\" are intended to refer to\nSections of this Stockholder Agreement and Exhibits to this Stockholder\nAgreement.\n\n\n                                       10\n\n\n            IN WITNESS WHEREOF, Parent and Stockholder have caused this\nStockholder Agreement to be executed as of the date first written above.\n\n                                          YAHOO! INC.\n\n\n                                          By:                           \n                                             ---------------------------\n                                               Name:\n                                               Title:\n\n\n                                          HJ ACQUISITION CORP.\n\n                                          By:                           \n                                             ---------------------------\n                                               Name:\n                                               Title:\n\n\n                                          STOCKHOLDER:\n\n\n                                          Address:\n                                                  ----------------------\n                                                  ----------------------\n                                                  ----------------------\n\n\n\n\n\n----------------------------------------------------------------------------\n\/SHARES HELD OF RECORD  \/                ADDITIONAL SECURITIES             \/\n----------------------------------------------------------------------------\n\/                       \/ OPTIONS AND OTHER RIGHTS   \/   BENEFICIALLY OWNED\/\n----------------------------------------------------------------------------\n\/                       \/                            \/                     \/\n----------------------------------------------------------------------------\n\/                       \/                            \/                     \/\n----------------------------------------------------------------------------\n\n\n\n\n\n\n                                                                       EXHIBIT A\n\n                            FORM OF IRREVOCABLE PROXY\n\n            The undersigned stockholder of HotJobs.com, Ltd., a Delaware\ncorporation (the \"COMPANY\"), hereby irrevocably (to the fullest extent permitted\nby law) appoints and constitutes _______, _______ and Yahoo! Inc., a Delaware\ncorporation (\"PARENT\"), and each of them, the attorneys and proxies of the\nundersigned with full power of substitution and resubstitution, to the full\nextent of the undersigned's rights with respect to (i) the outstanding shares of\ncapital stock of the Company owned of record by the undersigned as of the date\nof this proxy, which shares are specified on the final page of this proxy, and\n(ii) any and all other shares of capital stock of the Company which the\nundersigned may acquire on or after the date hereof. (The shares of the capital\nstock of the Company referred to in clauses \"(i)\" and \"(ii)\" of the immediately\npreceding sentence are collectively referred to as the \"SHARES.\") Upon the\nexecution hereof, all prior proxies given by the undersigned with respect to any\nof the Shares are hereby revoked, and the undersigned agrees that no subsequent\nproxies will be given with respect to any of the Shares.\n\n            This proxy is irrevocable, is coupled with an interest, is granted\nin connection with the execution and delivery of the Stockholder Agreement,\ndated as of the date hereof, between Parent and the undersigned (the\n\"STOCKHOLDER AGREEMENT\") and is granted in consideration of Parent entering into\nthe Agreement and Plan of Merger, dated as of the date hereof, among Parent, HJ\nAcquisition Corp. and the Company (the \"MERGER AGREEMENT\").\n\n            Shares sold by the undersigned in Permitted Transfers (as defined in\nthe Stockholder Agreement) shall, for all purposes, be and be deemed released\nfrom this proxy and no longer be included among the \"Shares\" hereunder.\n\n            The attorneys and proxies named above (and their successors) will be\nempowered, and may exercise this proxy, to vote the Shares at any meeting of the\nstockholders of the Company, however called, and at every adjournment or\npostponement thereof, or in connection with any solicitation of written consents\nfrom stockholders of the Company:\n\n                 (i) in favor of (A) the approval and adoption of the Merger\nAgreement and the approval of the merger contemplated thereby and (B) each of\nthe other actions contemplated by the Merger Agreement, and\n\n                 (ii) against (A) any Takeover Proposal (other than one by\nParent or Purchaser) and (B) any amendment of the Company's Articles of\nIncorporation or Bylaws or other proposal, action or transaction involving the\nCompany or any of its Subsidiaries or any of its stockholders, which amendment\nor other proposal, action or transaction that could reasonably be expected to\nprevent or materially impede or delay the consummation of the Offer, the Merger\nor the other transactions contemplated by the Merger Agreement or this Agreement\nor to deprive Parent of any material portion \n\n\n                                        2\n\n\nof the benefits anticipated by Parent to be received from the consummation of\nthe Offer, the Merger or the other transactions contemplated by the Merger\nAgreement or this Agreement, or change in any manner the voting rights of\nCompany Common Stock presented to the stockholders of the Company (regardless of\nany recommendation of the Board of Directors of the Company) or in respect of\nwhich vote or consent of the stockholders is requested or sought, unless such\ntransaction has been approved in advance by Parent or Purchaser.\n\n            The undersigned may vote the Shares on all other matters.\n\n            This proxy shall be binding upon the heirs, estate, executors,\npersonal representatives, successors and assigns of the undersigned (including\nany transferee of any of the Shares).\n\n            If any provision of this proxy or any part of any such provision is\nheld under any circumstances to be invalid or unenforceable in any jurisdiction,\nthen (a) such provision or part thereof shall, with respect to such\ncircumstances and in such jurisdiction, be deemed amended to conform to\napplicable laws so as to be valid and enforceable to the fullest possible\nextent, (b) the invalidity or unenforceability of such provision or part thereof\nunder such circumstances and in such jurisdiction shall not affect the validity\nor enforceability of such provision or part thereof under any other\ncircumstances or in any other jurisdiction, and (c) the invalidity or\nunenforceability of such provision or part thereof shall not affect the validity\nor enforceability of the remainder of such provision or the validity or\nenforceability of any other provision of this proxy. Each provision of this\nproxy is separable from every other provision of this proxy, and each part of\neach provision of this proxy is separable from every other part of such\nprovision.\n\n            This proxy shall terminate, and be of no further force and effect,\nautomatically upon the Expiration Date.\n\n\nDated: December [ ], 2001\n\n\n\n------------------------------------\n\n\n\nNumber of shares of common stock of the Company owned of record as of the date\nof this proxy:\n\n\n------------------------------------\n\n\n                                        3\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9377],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9626],"class_list":["post-43162","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-yahoo-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43162","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43162"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43162"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43162"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43162"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}