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<br />ARTICLE TWO <br /> <br />THE MERGER <br /> <br />Section 2.1 <br /> <br />Mereer. <br /> <br />(a) Structure of the Merger. Except as otherwise provided in this Section 2.l(a). <br />and subject to the terms and conditions of this Agreement, the Company shall be merged with and <br />into Merger Sub in accordance with the DGCL and the TBCA, the separate existence of the <br />Company shall cease, and Merger Sub shall be the Surviving Corporation. Upon the consummation <br />of the Merger on the terms and conditions of this Agreement, the Surviving Corporation shall <br />succeed to all the rights, assets, liabilities and obligations of the Company and Merger Sub in <br />accordance with the provisions of the DGCL and the TBCA. In the event that all of the conditions <br />set forth in Article Six and Article Seven (excluding conditions that, by their terms, cannot be <br />satisfied until the Closing Date) have been satisfied or waived in accordance with the terms of this <br />Agreement, other than (i) the condition set forth in Section 6.6 that Parent shall have received the <br />tax opinion referenced therein, or (ii) the condition set forth in Section 7.5 that the Company shall <br />have received the tax opinion referenced therein, then, subject to the other terms and conditions of <br />this Agreement, the parties acknowledge and agree that Merger Sub shall be merged with and into <br />the Company in accordance with the DGCL and the TBCA, the separate existence of Merger Sub <br />shall cease, and the Company shall be the Surviving Corporation (the "Reverse Merger"). The <br />parties acknowledge and agree that promptly upon the determination that the Reverse Merger is <br />required pursuant to this Section 2.1( a). the parties shall amend and restate this Agreement in its <br />entirety on the same terms and conditions as set forth herein, other than such terms and conditions <br />that relate to the form of the Merger and the tax implications with respect thereto, which shall be <br />revised accordingly. <br /> <br />(b) Consummation of Merger. At the Closing, the parties shall cause the Merger <br />to be consummated by duly filing with (i) the Secretary of State of Delaware a properly executed <br />certificate of merger in accordance with the provisions of the DGCL and (ii) the Secretary of State <br />of Texas properly executed articles of merger in accordance with the provisions of the TBCA. Such <br />certificate of merger and articles of merger shall collectively be referred to herein as the "Certificate <br />ofMereer." In accordance with the DGCL, the TBCA and the terms of the Certificate of Merger, <br />the Merger shall be effective at the time and date which is (A) the later of (i) the date and time of <br />the filing of the certificate of merger with the Secretary of State of Delaware (or such other time as <br />may be specified in such certificate as may be permitted by law) and (ii) the date and time of the <br />filing of the articles of merger with the Secretary of State of Texas (or such other time as may be <br />specified'in such articles as may be permitted by law) or (B) such other time and date as Parent and <br />the Company may agree (such time and date being hereinafter referred to respectively as the <br />"Effective Time" and the "Effective Date"). <br /> <br />(c) Certificate of Incorooration and Bvlaws. The certificate of incorporation of <br />Merger Sub, as in existence immediately prior to the Effective Time, shall be the certificate of <br />incorporation of the Surviving Corporation from and after the Effective Time unless and until <br /> <br />A T1I90584-8 <br /> <br />2 <br />