SENIOR EXECUTIVE OFFICER
CERTIFYING TO THE EFFECT THAT THE CONDITION SET FORTH IN SECTION 1.2(D)(VIII)(A)
HAS BEEN SATISFIED; "SENIOR EXECUTIVE OFFICERS" MEANS THE COMPANY'S "SENIOR
EXECUTIVE OFFICERS" AS DEFINED IN SECTION 111 OF THE EESA AND THE COMPENSATION
REGULATIONS.
SECTION 1.3
INTERPRETATION.
WHEN A REFERENCE IS MADE IN THIS AGREEMENT TO
"RECITALS," "ARTICLES," "SECTIONS," "ANNEXES" OR "SCHEDULES" SUCH REFERENCE
SHALL BE TO A RECITAL, ARTICLE OR SECTION OF, OR ANNEX OR SCHEDULE TO, THIS
AGREEMENT, UNLESS OTHERWISE INDICATED.
THE TERMS DEFINED IN THE SINGULAR HAVE A
COMPARABLE MEANING WHEN USED IN THE PLURAL, AND VICE VERSA.
REFERENCES TO
"HEREIN", "HEREOF", "HEREUNDER" AND THE LIKE REFER TO THIS AGREEMENT AS A WHOLE
AND NOT TO ANY PARTICULAR SECTION OR PROVISION, UNLESS THE CONTEXT REQUIRES
OTHERWISE.
THE TABLE OF CONTENTS AND HEADINGS CONTAINED IN THIS AGREEMENT ARE
FOR REFERENCE PURPOSES ONLY AND ARE NOT PART OF THIS AGREEMENT.
WHENEVER THE
WORDS "INCLUDE," "INCLUDES" OR "INCLUDING" ARE USED IN THIS AGREEMENT, THEY
SHALL BE DEEMED FOLLOWED BY THE WORDS "WITHOUT LIMITATION." NO RULE OF
CONSTRUCTION AGAINST THE DRAFTSPERSON SHALL BE APPLIED IN CONNECTION WITH THE
INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT, AS THIS AGREEMENT IS THE
PRODUCT OF NEGOTIATION BETWEEN SOPHISTICATED PARTIES ADVISED BY COUNSEL.
ALL
REFERENCES TO "$" OR "DOLLARS" MEAN THE LAWFUL CURRENCY OF THE UNITED STATES OF
AMERICA.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL REFERENCES TO ANY
STATUTE, RULE OR REGULATION ARE TO THE STATUTE, RULE OR REGULATION AS AMENDED,
MODIFIED, SUPPLEMENTED OR REPLACED FROM TIME TO TIME (AND, IN THE CASE OF
STATUTES, INCLUDE ANY RULES AND REGULATIONS PROMULGATED UNDER THE STATUTE) AND
TO ANY SECTION OF ANY STATUTE, RULE OR REGULATION INCLUDE ANY SUCCESSOR TO THE
SECTION.
REFERENCES TO A "BUSINESS DAY" SHALL MEAN ANY DAY EXCEPT SATURDAY,
SUNDAY AND ANY DAY ON WHICH BANKING INSTITUTIONS IN THE STATE OF NEW YORK
GENERALLY ARE AUTHORIZED OR REQUIRED BY LAW OR OTHER GOVERNMENTAL ACTIONS TO
CLOSE.
ARTICLE II
EXCHANGE
SECTION 2.1
EXCHANGE; DIVIDEND EXCHANGE.
(A)
ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH IN THIS
AGREEMENT, (I) THE COMPANY AGREES TO ISSUE THE CAPITAL SECURITIES TO THE
INVESTOR IN EXCHANGE FOR 72,000 SHARES OF THE SERIES A SHARES, AND THE INVESTOR
AGREES TO DELIVER TO THE COMPANY THE SERIES A SHARES IN EXCHANGE FOR THE CAPITAL
SECURITIES, AND (II) THE COMPANY AND THE INVESTOR MUTUALLY AGREE TO AMEND AND
RESTATE THE OLD WARRANT TO REFLECT THE TERMS AND CONDITIONS OF THE AMENDED
WARRANT.
(B)
SIMULTANEOUSLY WITH THE EXCHANGE, THE COMPANY SHALL DELIVER TO THE
INVESTOR PURSUANT TO THE DIVIDEND EXCHANGE THE NUMBER OF SHARES OF CAPITAL
SECURITIES (ROUNDED TO THE NEAREST WHOLE NUMBER) DETERMINED BY DIVIDING THE
TOTAL AMOUNT OF THE CASH PAYMENT OF ACCRUED AND UNPAID DIVIDENDS THAT WOULD
OTHERWISE BE PAYABLE TO THE INVESTOR (ROUNDED TO THE NEAREST WHOLE CENT) BY
$1,000, REPRESENTING THE LIQUIDATION AMOUNT PER SHARE OF THE CAPITAL
SECURITIES.
FOR THE AVOIDANCE OF DOUBT, IF THE CLOSING DATE WERE MARCH 31,
2010, THE TOTAL AMOUNT OF THE CASH PAYMENT OF