Common use of Amendment of the Merger Agreement Clause in Contracts

Amendment of the Merger Agreement. Paragraph (a) of Section 1.8 of the Merger Agreement is hereby deleted in its entirety and the following is hereby substituted therefor: (a) At the Effective Time, each option granted by the Company to purchase shares of Company Common Stock (each a “Company Option”) pursuant to any stock option plan, program or arrangement of the Company, including, without limitation, the Company’s 1996 Employee Stock Option Plan (as amended) and 1996 Stock Plan for Non-Employee Directors (collectively, the “Company Option Plans”), that is outstanding and unexercised immediately prior to the Effective Time shall cease to represent a right to acquire shares of Company Common Stock and shall be converted automatically into options to purchase shares of Parent Common Stock, and Parent shall assume each such Company Option (hereinafter, “Assumed Option”) subject to the terms of the applicable Company Option Plan and the agreement evidencing the grant thereunder of such Assumed Option (other than the provisions thereof providing for termination of such Assumed Option at the Effective Time); provided, however, that (i) the number of shares of Parent Common Stock purchasable upon exercise of such Assumed Option shall be equal to the number of shares of Company Common Stock that were purchasable under such Company Option immediately prior to the Effective Time multiplied by the Exchange Ratio, and rounded down to the nearest whole share, and (ii) the per share exercise price under such Assumed Option shall be adjusted by dividing the per share exercise price under such Company Option by the Exchange Ratio, and rounding up to the nearest whole cent. In the case of any Assumed Option that is an “incentive stock option” (as defined in Section 422 of the Code), the exercise price, the number of shares of Parent Common Stock purchasable pursuant to such Assumed Option and the terms and conditions of exercise of such option shall be determined in order to comply, to the fullest extent possible, with Section 424(a) of the Code. Prior to the Effective Time, Parent shall prepare and file with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-8 (or other appropriate form) registering all the shares of Parent Common Stock subject to the Assumed Options, and such registration statement shall be kept effective (and the current status of the prospectus or prospectuses required thereby shall be maintained) as long as any Assumed Option remains outstanding.

Amendment of the Merger Agreement. Paragraph (a) of The Merger Agreement shall be deemed amended as follows, without requiring any further action by any Person. 2.1. Section 1.8 2.2 of the Merger Agreement is hereby deleted amended to read in its entirety full as follows: “The closing of the Merger (the “Closing”) will take place at the offices of Shearman & Sterling LLP at 599 L▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇he second Business Day following the satisfaction or waiver of the conditions set forth in Sections 7 and 8 (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), or at such other place and on such other date as Parent and the following Company may agree in writing (such date of Closing, the “Closing Date”).” 2.2. The second sentence of Section 2.3 is hereby substituted therefor:amended to read in full as follows: “The Merger will become effective at and as of 11:59pm (New York time) on the date that the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or such other later time as is agreed upon by the parties and set forth in the Certificate of Merger in accordance with the DGCL (the “Effective Time ”).” (a) At 2.3. Section 3.2.2 of the Merger Agreement is hereby amended to read in full as follows: “All Options outstanding at the Effective Time, each option granted by the Company to purchase shares of Company Common Stock (each a “Company Option”) pursuant to any stock option planother than Vested Options, program or arrangement of the Company, including, without limitation, the Company’s 1996 Employee Stock Option Plan (as amended) and 1996 Stock Plan for Non-Employee Directors (collectively, the “Company Option Plans”), that is outstanding and unexercised immediately prior to the Effective Time shall cease to represent a right to acquire shares of Company Common Stock and shall be converted automatically into options to purchase shares of Parent Common Stock, and Parent shall assume each such Company Option (hereinafter, “Assumed OptionRollover Options”) subject to the terms of the applicable Company Option Plan and the agreement evidencing the grant thereunder of such Assumed Option (other than the provisions thereof providing for termination of such Assumed Option at the Effective Time); provided, however, that (i) the acquire a number of shares of Parent Common Stock purchasable upon exercise of such Assumed common stock (“Parent Shares”). Each Rollover Option shall be equal exercisable for, and represent the right to the acquire, that whole number of shares of Company Common Stock that were purchasable under such Company Option immediately prior to the Effective Time multiplied by the Exchange Ratio, and Parent Shares (rounded down to the nearest whole share, number of Parent Shares) equal to the number of Shares of Company Common Stock subject to such Option multiplied by a fraction the numerator of which shall be equal to the Company Common Stock Price Per Share and the denominator of which shall be equal to the closing price of Parent Shares on the Business Day prior to the Effective Time (such fraction being hereinafter referred to as the “Exchange Ratio”) and the exercise price per option on Parent Shares shall be the amount equal to the exercise price per share subject to such Option divided by the Exchange Ratio (rounded upward to the nearest full cent).” 2.4. Section 3.2.3 of the Merger Agreement is hereby amended by replacing (i) the words “Replacement Option” with “Rollover Option” and (ii) the per share exercise price under such Assumed Option shall be adjusted by dividing the per share exercise price under such Company Option by the Exchange Ratio, and rounding up to the nearest whole cent. In the case of any Assumed Option that is an words “incentive stock optionReplacement Options” (as defined in Section 422 of the Code), the exercise price, the number of shares of Parent Common Stock purchasable pursuant to such Assumed Option and the terms and conditions of exercise of such option shall be determined in order to comply, to the fullest extent possible, with Section 424(a) of the Code. Prior to the Effective Time, Parent shall prepare and file with the Securities and Exchange Commission (the “SECRollover Options”) a registration statement on Form S-8 (or other appropriate form) registering all the shares of Parent Common Stock subject to the Assumed Options, and such registration statement shall be kept effective (and the current status of the prospectus or prospectuses required thereby shall be maintained) as long as any Assumed Option remains outstanding.