SHARE, FOR THE AGGREGATE PURCHASE PRICE AND
(II) PAY THE FEES TO SELLER AT THE CLOSING.
2.
AGREEMENT NOT TO CONVERT.
IN FURTHER CONSIDERATION OF THE
AGGREGATE PURCHASE PRICE AND THE FEES, PROVIDED THAT THE REPRESENTATIONS AND
WARRANTIES MADE BY BUYER IN SECTION 5 HEREOF ARE TRUE AND CORRECT ON THE DATE OF
THE STOCKHOLDER MEETING IN CONNECTION WITH THE APPROVAL OF THE MERGER WITH THE
SAME EFFECT AS THOUGH MADE ON SUCH DATE AND BUYER HAS COMPLIED IN ALL MATERIAL
RESPECTS WITH ITS OBLIGATIONS SET FORTH IN THIS AGREEMENT THROUGH SUCH DATE,
SELLER HEREBY AGREES IT HAS NOT AND WILL NOT EXERCISE ITS CONVERSION RIGHTS OR,
IF IT HAS ALREADY EXERCISED ITS CONVERSION RIGHTS, IT HEREBY WITHDRAWS AND
REVOKES SUCH EXERCISE AND WILL EXECUTE ALL NECESSARY DOCUMENTS AND TAKE ALL
ACTIONS REQUIRED IN FURTHERANCE OF SUCH REVOCATION.
3.
CLOSING MATTERS.
(A)
WITHIN ONE BUSINESS DAY OF THE DATE OF THIS AGREEMENT, BUYER SHALL
SEND THE NOTICE ATTACHED AS ANNEX 1 HERETO TO CONTINENTAL.
(B)
PRIOR TO THE CLOSING, SELLER SHALL DELIVER OR CAUSE TO BE
DELIVERED TO BUYER APPROPRIATE INSTRUCTIONS FOR BOOK ENTRY TRANSFERS OF
OWNERSHIP OF THE SHARES FROM SELLER TO BUYER.
(C)
THE CLOSING OF THE PURCHASE AND SALE OF THE SHARES ("CLOSING")
WILL OCCUR ON THE DATE ON WHICH BUYER'S TRUST ACCOUNT IS LIQUIDATED IN
CONNECTION WITH THE CONSUMMATION OF THE MERGER, WHICH CONSUMMATION SHALL OCCUR
NO LATER THAN 11:59 P.M. EASTERN STANDARD TIME ON THE SEVENTH DAY FOLLOWING THE
CONSUMMATION OF THE MERGER (THE "CLOSING DATE").
AT THE CLOSING, BUYER SHALL
PAY SELLER THE AGGREGATE PURCHASE PRICE AND THE FEES BY WIRE TRANSFER FROM
PROSPECT'S TRUST ACCOUNT OF IMMEDIATELY AVAILABLE FUNDS IN ACCORDANCE WITH THE
IRREVOCABLE INSTRUCTIONS ATTACHED AS ANNEX I HERETO TO AN ACCOUNT SPECIFIED BY
SELLER AND SELLER SHALL DELIVER THE SHARES TO BUYER ELECTRONICALLY USING THE
DEPOSITORY TRUST COMPANY'S DWAC (DEPOSIT/WITHDRAWAL AT CUSTODIAN) SYSTEM TO AN
ACCOUNT SPECIFIED BY BUYER.
IT SHALL BE A CONDITION TO THE OBLIGATION OF BUYER
ON THE ONE HAND AND SELLER ON THE OTHER HAND, TO CONSUMMATE THE TRANSFER OF THE
SHARES CONTEMPLATED HEREUNDER THAT THE OTHER PARTY'S REPRESENTATIONS AND
WARRANTIES ARE TRUE AND CORRECT ON THE CLOSING DATE WITH THE SAME EFFECT AS
THOUGH MADE ON SUCH DATE, UNLESS WAIVED IN WRITING BY THE PARTY TO WHOM SUCH
REPRESENTATIONS AND WARRANTIES ARE MADE.
(D)
IN THE EVENT THAT THE MERGER IS NOT CONSUMMATED BY 11:59 P.M.
EASTERN STANDARD ON NOVEMBER 14, 2009 AND BUYER HAS NOT DISSOLVED AND LIQUIDATED
ITS ASSETS AND PAID SELLER THE LIQUIDATION VALUE OF ITS SHARES BY NOVEMBER 20,
2009, THEN BUYER SHALL PAY TO SELLER IN IMMEDIATELY AVAILABLE FUNDS, UNTIL BUYER
LIQUIDATES AND DISTRIBUTES ITS ASSETS TO ITS STOCKHOLDERS, AN AMOUNT EQUAL TO
THE LESSER OF (I) 4.0% OF THE PURCHASE PRICE PER SHARE PER MONTH (PRO-RATED ON A
DAILY BASIS BASED ON THE DATE WHEN PAYMENT IS REQUIRED AND THE DATE SUCH PAYMENT
IS MADE) OR (II) THE HIGHEST LAWFUL RATE, FOR EACH SHARE HELD BY SELLER FROM THE