the following conditions (any of which may be waived by such parties,
in whole or in part):
SECTION 7.1.
ACCURACY OF REPRESENTATIONS.
THE
REPRESENTATIONS AND WARRANTIES OF RAMIUS SET FORTH IN THIS AGREEMENT SHALL BE
TRUE AND CORRECT IN ALL RESPECTS (WITHOUT REGARD TO ANY MATERIALITY QUALIFIERS
THEREIN) AS OF THE DATE HEREOF AND AS OF THE CLOSING AS THOUGH MADE ON AND AS OF
THE CLOSING, OTHER THAN REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF ANOTHER
SPECIFIC DATE OR TIME PRIOR TO THE DATE HEREOF (WHICH NEED ONLY BE TRUE AND
CORRECT AS OF SUCH DATE OR TIME); PROVIDED, HOWEVER, THAT FOR PURPOSES OF
DETERMINING SATISFACTION OF THIS CONDITION, SUCH REPRESENTATIONS AND WARRANTIES
SHALL BE DEEMED TO BE TRUE AND CORRECT IN ALL RESPECTS UNLESS THE FAILURE OR
FAILURES OF SUCH REPRESENTATIONS AND WARRANTIES TO BE SO TRUE AND CORRECT,
INDIVIDUALLY OR IN THE AGGREGATE, WOULD HAVE A MATERIAL ADVERSE EFFECT ON
RAMIUS.
SECTION 7.2.
PERFORMANCE.
EACH OF THE COVENANTS
AND OBLIGATIONS THAT EACH OF THE NEW PARENT PARTIES, RAMIUS AND COWEN IS
REQUIRED TO PERFORM OR TO COMPLY WITH PURSUANT TO THIS AGREEMENT AND EACH OF THE
COVENANTS AND OBLIGATIONS THAT SUCH PARTIES ARE REQUIRED TO PERFORM OR COMPLY
WITH PURSUANT TO THE APPLICABLE ANCILLARY AGREEMENTS, IN EACH CASE, AT OR PRIOR
TO THE CLOSING, SHALL HAVE BEEN DULY PERFORMED AND COMPLIED WITH IN ALL MATERIAL
RESPECTS.
SECTION 7.3.
RAMIUS ASSET EXCHANGE.
THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION AGREEMENT, INCLUDING, WITHOUT
LIMITATION, THE RAMIUS ASSET EXCHANGE, SHALL HAVE BEEN CONSUMMATED IN ACCORDANCE
WITH THE TRANSACTION AGREEMENT.
SECTION 7.4.
NASDAQ LISTING.
THE SHARES OF
CLASS A COMMON STOCK TO BE ISSUED AS PART OF THE EXCHANGE CONSIDERATION SHALL
HAVE BEEN AUTHORIZED FOR LISTING ON THE NASDAQ, SUBJECT TO OFFICIAL NOTICE OF
ISSUANCE.
SECTION 7.5.
NO INJUNCTIONS OR RESTRAINTS;
ILLEGALITY.
NO ORDER, INJUNCTION OR DECREE ISSUED BY ANY COURT OR AGENCY OF
COMPETENT JURISDICTION OR OTHER LAW PREVENTING OR MAKING ILLEGAL THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE IN
EFFECT.
SECTION 7.6.
DEBT CONSIDERATION.
THE JV NOTE AND
JV NOTE SECURITY AGREEMENT SHALL HAVE BEEN EXECUTED BY NEW PARENT AND ITS
SUBSIDIARIES PARTY THERETO; PROVIDED, THAT IF THE NEW PARENT REVOLVER EXECUTION
HAS OCCURRED, THE JV NOTE AND JV NOTE SECURITY AGREEMENT SHALL NOT BE EXECUTED.
ARTICLE VIII.
OTHER AGREEMENTS, ASSURANCES AND ACKNOWLEDGEMENTS
SECTION 8.1.
EXCHANGE CONSIDERATION TRANSFER
RESTRICTIONS.
(A)
SUBJECT TO SECTION 8.1(B), FOLLOWING THE
CLOSING, TRANSFEROR SHALL NOT SELL, ASSIGN, PLEDGE, TRANSFER OR OTHERWISE
DISPOSE OF ALL OR ANY PART OF THE CLASS A COMMON STOCK ISSUED AS PART OF THE
EXCHANGE CONSIDERATION (INCLUDING ANY OTHER EQUITY SECURITIES OF NEW PARENT
ISSUED OR ISSUABLE IN EXCHANGE FOR OR WITH RESPECT TO SUCH SHARES OF CLASS A
COMMON STOCK (X) BY WAY OF DIVIDEND, SPLIT OR COMBINATION OF SHARES OR (Y) IN
15
CONNECTION WITH A RECLASSIFICATION, RECAPITALIZATION, MERGER, CONSOLIDATION,
OTHER REORGANIZATION OR SIMILAR TRANSACTION); PROVIDED, THAT (I) TRANSFEROR MAY
ASSIGN ALL OR ANY PART OF THE EXCHANGE CONSIDERATION TO ANY AFFILIATE ALL OF