Class A Common Stock (the "Adjusted Number of Shares")
and (ii) the JV Principal Amount shall be increased by an amount equal to the
product of (x) $8.6555 and (y) the excess of (I) the Base Number of Shares over
(II) the Adjusted Number of Shares.
SECTION 2.2.
CLOSING.
SUBJECT TO THE CONDITIONS SET FORTH IN THIS
AGREEMENT, THE CONSUMMATION OF THE TRANSACTIONS PROVIDED FOR IN THIS AGREEMENT
(THE "CLOSING") SHALL BE HELD AT THE TIME OF THE CLOSING UNDER THE TRANSACTION
AGREEMENT AT THE OFFICES OF WILLKIE FARR & GALLAGHER, 787 SEVENTH AVENUE, NEW
YORK, NEW YORK 10019, OR AT SUCH OTHER PLACE AS THE CLOSING UNDER THE
TRANSACTION AGREEMENT IS TO OCCUR OR AS THE PARTIES HERETO SHALL OTHERWISE AGREE
IN WRITING.
RAMIUS SHALL PROVIDE NOTICE TO TRANSFEROR OF THE DATE OF THE
CLOSING UNDER THE TRANSACTION AGREEMENT AT LEAST THREE BUSINESS DAYS IN
ADVANCE.
AT THE CLOSING, ALL OF THE TRANSACTIONS PROVIDED FOR IN THIS
ARTICLE II SHALL BE CONSUMMATED ON A SUBSTANTIALLY CONCURRENT BASIS, EFFECTIVE
IMMEDIATELY FOLLOWING THE CONSUMMATION OF THE RAMIUS ASSET EXCHANGE.
SECTION 2.3.
CLOSING OBLIGATIONS.
IN ADDITION TO ANY OTHER DOCUMENTS
TO BE DELIVERED UNDER OTHER PROVISIONS OF THIS AGREEMENT, AT THE CLOSING:
(A)
TRANSFEROR SHALL DELIVER:
(I)
TO JV ACQUIROR, AN ASSIGNMENT (THE "ASSIGNMENT") OF ALL OF THE JV
INTEREST IN THE FORM OF EXHIBIT E HERETO, EXECUTED BY TRANSFEROR;
(II)
THE REGISTRATION RIGHTS AGREEMENT EXECUTED, IN RESPECT OF THE
EXCHANGE CONSIDERATION, BY THE UNICREDIT PARTIES THAT ARE MEMBERS OF RAMIUS AS
OF THE CLOSING AND TRANSFEROR; AND
(III)
IF THE NEW PARENT REVOLVER EXECUTION HAS NOT OCCURRED, AN
EXECUTED COUNTERPART TO THE JV NOTE, EXECUTED BY THE UNICREDIT PARTIES THERETO.
(B)
NEW PARENT SHALL, AND RAMIUS, COWEN AND JV ACQUIROR SHALL CAUSE
NEW PARENT TO, DELIVER TO TRANSFEROR:
9
(I)
DULY EXECUTED AND VALIDLY ISSUED STOCK
CERTIFICATES IN THE NAME OF TRANSFEROR REPRESENTING THE COMMON STOCK
CONSIDERATION;
(II)
ON BEHALF OF JV ACQUIROR, EVIDENCE THAT
THE SHARES OF CLASS A COMMON STOCK INCLUDED IN THE EXCHANGE CONSIDERATION HAVE
BEEN AUTHORIZED FOR LISTING ON THE NASDAQ;
(III)
(X) IF THE NEW PARENT REVOLVER EXECUTION HAS
NOT OCCURRED, THE JV NOTE AND THE JV NOTE SECURITY AGREEMENT, EACH EXECUTED BY
NEW PARENT AND ANY SUBSIDIARIES PARTY THERETO OR (Y) IF THE NEW PARENT REVOLVER
EXECUTION HAS OCCURRED, THE JV PRINCIPAL AMOUNT IN CASH; AND
(IV)
THE REGISTRATION RIGHTS AGREEMENT EXECUTED BY
NEW PARENT.
(C)
RAMIUS SHALL DELIVER TO NEW PARENT AND
TRANSFEROR THE REGISTRATION RIGHTS AGREEMENT EXECUTED BY RAMIUS.
(D)
JV ACQUIROR SHALL DELIVER TO PARK EXCHANGE
LLC:
(I)
THE JOINDER AGREEMENT EXECUTED BY
ACQUIROR.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF TRANSFEROR
Transferor represents and warrants to the other parties hereto, both as of the
date hereof and as of the Closing, as follows:
SECTION 3.1.
ORGANIZATION AND GOOD STANDING.
EACH OF THE UNICREDIT PARTIES IS A ENTITY DULY ORGANIZED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION, WITH FULL
CORPORATE POWER AND AUTHORITY TO CONDUCT