STOCK EXCHANGED FOR THE CAPITAL SECURITIES PURSUANT
TO ARTICLE II HEREOF ARE BEING REACQUIRED BY THE COMPANY AND SHALL HAVE THE
STATUS OF AUTHORIZED BUT UNISSUED SHARES OF PREFERRED STOCK OF THE COMPANY
UNDESIGNATED AS TO SERIES AND MAY BE DESIGNATED OR REDESIGNATED AND ISSUED OR
REISSUED, AS THE CASE MAY BE, AS PART OF ANY SERIES OF PREFERRED STOCK OF THE
COMPANY; PROVIDED THAT SUCH SHARES SHALL NOT BE REISSUED AS SHARES OF SERIES A
PREFERRED STOCK.
SECTION 1.2
THE CLOSING.
(A)
THE CLOSING OF THE EXCHANGE (THE "CLOSING") WILL TAKE PLACE AT THE
OFFICES OF CADWALADER, WICKERSHAM & TAFT LLP, ONE WORLD FINANCIAL CENTER, NEW
YORK, NEW YORK 10281, AT 9:00 A.M., EST ON THE FIRST BUSINESS DAY IMMEDIATELY
FOLLOWING THE DAY ON WHICH ALL OF THE CONDITIONS SET FORTH IN SECTIONS 1.2(C)
AND (D) ARE SATISFIED OR WAIVED (OTHER THAN THOSE CONDITIONS THAT BY THEIR TERMS
MUST BE SATISFIED ON THE CLOSING DATE, BUT SUBJECT TO THE SATISFACTION OR WAIVER
OF THOSE CONDITIONS), OR AT SUCH OTHER PLACE, TIME AND DATE AS SHALL BE AGREED
BETWEEN THE COMPANY AND THE INVESTOR.
THE TIME AND DATE ON WHICH THE CLOSING
OCCURS IS REFERRED TO IN THIS AGREEMENT AS THE "CLOSING DATE".
(B)
SUBJECT TO THE FULFILLMENT OR WAIVER OF THE CONDITIONS TO THE CLOSING
IN THIS SECTION 1.2, AT THE CLOSING (I) THE COMPANY WILL DELIVER THE CAPITAL
SECURITIES TO THE INVESTOR, AS EVIDENCED BY ONE OR MORE CERTIFICATES DATED THE
CLOSING DATE AND REGISTERED IN THE NAME OF THE INVESTOR OR ITS DESIGNEE(S) AND
(II) THE INVESTOR WILL DELIVER THE CERTIFICATE REPRESENTING THE SERIES A SHARES
TO THE COMPANY.
(C)
THE RESPECTIVE OBLIGATIONS OF EACH OF THE INVESTOR AND THE COMPANY TO
CONSUMMATE THE EXCHANGE ARE SUBJECT TO THE FULFILLMENT (OR WAIVER BY THE COMPANY
AND THE INVESTOR, AS APPLICABLE) PRIOR TO THE CLOSING OF THE CONDITIONS THAT
(I) ANY APPROVALS OR AUTHORIZATIONS OF ALL UNITED STATES AND OTHER GOVERNMENTAL,
REGULATORY OR JUDICIAL AUTHORITIES (COLLECTIVELY, "GOVERNMENTAL ENTITIES")
REQUIRED FOR THE CONSUMMATION OF THE EXCHANGE SHALL HAVE BEEN OBTAINED OR MADE
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO EACH PARTY AND SHALL BE IN FULL
FORCE AND EFFECT AND ALL WAITING PERIODS REQUIRED BY UNITED STATES AND OTHER
APPLICABLE LAW, IF ANY, SHALL HAVE EXPIRED AND (II) NO PROVISION OF ANY
APPLICABLE UNITED STATES OR OTHER LAW AND NO JUDGMENT, INJUNCTION, ORDER OR
DECREE OF ANY GOVERNMENTAL ENTITY SHALL PROHIBIT CONSUMMATION OF THE EXCHANGE AS
CONTEMPLATED BY THIS AGREEMENT.
(D)
THE OBLIGATION OF THE INVESTOR TO CONSUMMATE THE EXCHANGE IS ALSO
SUBJECT TO THE FULFILLMENT (OR WAIVER BY THE INVESTOR) AT OR PRIOR TO THE
CLOSING OF EACH OF THE FOLLOWING CONDITIONS:
(I)
THE HOLDERS OF THE COMMON STOCK SHALL HAVE DULY APPROVED, BY PROXY
VOTE OR OTHERWISE, THE ISSUANCE OF THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF
-2-
THE CAPITAL SECURITIES (THE "UNDERLYING COMMON SHARES") TO THE INVESTOR UPON THE
CONVERSION OF THE CAPITAL SECURITIES TO SHARES OF COMMON STOCK;
(II)
(A) THE REPRESENTATIONS