DATE UPON
WHICH SUCH CONDITION IS SATISFIED.
SECTION 2.2
PAYMENT OF REDEMPTION PRICE.
THE AGGREGATE REDEMPTION PRICE TO BE PAID BY THE COMPANY TO SELLER FOR THE
SHARES IS $304,834,555.31 (THREE HUNDRED AND FOUR MILLION, EIGHT HUNDRED AND
THIRTY-FOUR THOUSAND AND FIVE HUNDRED AND FIFTY-FIVE DOLLARS AND THIRTY-ONE
CENTS) IN CASH (THE "REDEMPTION PRICE"). THE COMPANY SHALL DELIVER TO SELLER ON
THE REDEMPTION DATE THE REDEMPTION PRICE FOR THE SHARES BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED BY SELLER.
SECTION 2.3
SURRENDER OF REDEEMED SHARES.
SELLER SHALL DELIVER TO THE COMPANY ON THE REDEMPTION DATE (I) THE STOCK
CERTIFICATE REPRESENTING THE SHARES OR A STATEMENT OF LOST STOCK CERTIFICATE IN
THE FORM ATTACHED HERETO AS EXHIBIT A AND (II) A STOCK POWER IN THE FORM
ATTACHED HERETO AS EXHIBIT B FOR THE TRANSFER OF THE SHARES TO THE COMPANY. ON
THE REDEMPTION DATE, THE COMPANY SHALL RECORD THE TRANSFER OF THE SHARES IN ITS
CORPORATE RECORDS.
SECTION 2.4
CONDITIONS TO REDEMPTION;
NOTIFICATION.
(A)
CONDITIONS.
THE RESPECTIVE OBLIGATION OF
THE COMPANY AND SELLER TO EFFECT THE REDEMPTION IS SUBJECT TO THE SATISFACTION,
EXPIRY OR WAIVER OF EACH OF THE FOLLOWING CONDITIONS:
(i)
No Injunctions or Restraints.
No
Governmental Entity shall have enacted, issued, promulgated, enforced or entered
any Laws or Orders (whether temporary,
3
PRELIMINARY OR PERMANENT) THAT PROHIBITS OR MATERIALLY RESTRAINS THE REDEMPTION
CONTEMPLATED HEREBY;
(II)
FINANCING.
THE COMPANY SHALL HAVE
OBTAINED THE EXTERNAL FINANCING; PROVIDED, HOWEVER, THAT AT 23:59 (EASTERN TIME)
ON DECEMBER 28, 2006 SUCH CONDITION SHALL AUTOMATICALLY EXPIRE AND NO LONGER BE
A CONDITION HEREUNDER; AND
(III)
MERGER.
THE MERGER SHALL HAVE BECOME
EFFECTIVE PURSUANT TO THE TERMS OF THE MERGER AGREEMENT.
(B)
NOTIFICATIONS.
THE COMPANY SHALL NOTIFY
SELLER IN WRITING WITHIN ONE BUSINESS DAY OF IT OBTAINING APPROVAL FROM THE
CREDIT COMMITTEE OF THE RELEVANT BANK THAT SUCH BANK WILL PROVIDE THE EXTERNAL
FINANCING. EACH OF THE COMPANY AND SELLER SHALL NOTIFY THE OTHER IN WRITING
WITHIN FIVE BUSINESS DAYS IN THE EVENT THAT IT BECOMES AWARE OF ANY
CIRCUMSTANCES WHICH COULD REASONABLY BE EXPECTED TO LEAD TO THE CONDITION SET
FORTH IN SECTION 2.4(A)(I) NOT BEING SATISFIED.
THE FAILURE TO GIVE A
NOTIFICATION PURSUANT TO THIS SECTION 2.4(B) SHALL NOT AFFECT THE SATISFACTION
OF EITHER OF THE, CONDITIONS SET FORTH IN SECTION 2.4(A).
ARTICLE 3
COVENANTS AND SELLER APPOINTMENT RIGHTS
SECTION 3.1
COMPANY COVENANTS.
THE COMPANY
COVENANTS TO SELLER THAT:
(A)
BETWEEN THE EFFECTIVE TIME AND THE
REDEMPTION DATE, UNLESS SELLER SHALL OTHERWISE AGREE IN WRITING, THE BUSINESS OF
THE COMPANY AND ITS SUBSIDIARIES SHALL BE CONDUCTED ONLY IN THE ORDINARY COURSE
OF BUSINESS IN ALL MATERIAL RESPECTS, AND THE COMPANY AND ITS SUBSIDIARIES SHALL
USE ALL THEIR RESPECTIVE COMMERCIALLY REASONABLE EFFORTS TO PRESERVE INTACT IN
ALL MATERIAL RESPECTS THEIR BUSINESS ORGANIZATION. BETWEEN THE EFFECTIVE TIME
AND THE REDEMPTION DATE, WITHOUT THE PRIOR CONSENT OF SELLER, THE COMPANY SHALL
NOT TAKE ANY OF THE ACTIONS CONTEMPLATED BY ARTICLE 5 OF THE MERGER AGREEMENT.
(B)
FOLLOWING THE EFFECTIVE TIME AND PRIOR