ADVANCE OF
ITS ISSUANCE.
THE PARTIES AGREE THAT THEY WILL FILE A CURRENT REPORT ON FORM
8-K ANNOUNCING THE EXECUTION OF THIS AGREEMENT AND ATTACHING COPIES OF THIS
AGREEMENT AND THE JOINTLY APPROVED PRESS RELEASE.
SECTION 6.13.
SHAREHOLDER LITIGATION.
THE COMPANY
SHALL GIVE PARENT THE OPPORTUNITY TO PARTICIPATE IN THE DEFENSE OR SETTLEMENT OF
ANY SHAREHOLDER LITIGATION AGAINST THE COMPANY AND ITS DIRECTORS RELATING TO ANY
OF THE TRANSACTIONS UNTIL THE PURCHASE OF SHARES OF COMPANY COMMON STOCK
PURSUANT TO THE OFFER, AND THEREAFTER, SHALL GIVE PARENT THE OPPORTUNITY TO
DIRECT THE DEFENSE OF SUCH LITIGATION AND, IF PARENT SO CHOOSES TO DIRECT SUCH
LITIGATION, PARENT SHALL GIVE THE COMPANY AND ITS DIRECTORS AN OPPORTUNITY TO
PARTICIPATE IN SUCH LITIGATION; PROVIDED, HOWEVER, THAT NO SUCH SETTLEMENT SHALL
BE AGREED TO WITHOUT PARENT'S OR THE COMPANY'S CONSENT, WHICH CONSENT SHALL NOT
BE UNREASONABLY WITHHELD; AND PROVIDED FURTHER THAT NO SETTLEMENT REQUIRING A
PAYMENT BY A DIRECTOR SHALL BE AGREED TO WITHOUT SUCH DIRECTOR'S CONSENT.
SECTION 6.14.
FIRPTA.
THE COMPANY SHALL DELIVER TO
PURCHASER PRIOR TO THE EXPIRATION OF THE OFFER A CERTIFIED STATEMENT, PREPARED
IN ACCORDANCE WITH TREASURY REGULATION SECTION 1.1445-2(C), THAT THE SHARES OF
COMPANY COMMON STOCK ARE NOT "UNITED STATES REAL PROPERTY INTERESTS" WITHIN THE
MEANING OF SECTION 897 OF THE CODE.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 7.1.
CONDITIONS TO EACH PARTY'S
OBLIGATION TO EFFECT THE MERGER.
THE RESPECTIVE OBLIGATIONS OF EACH PARTY TO
EFFECT THE MERGER ARE SUBJECT TO THE SATISFACTION OR WAIVER, WHERE PERMISSIBLE,
PRIOR TO THE EFFECTIVE TIME, OF THE FOLLOWING CONDITIONS:
(A)
IF REQUIRED BY THE PBCL, THIS AGREEMENT
SHALL HAVE BEEN APPROVED BY THE REQUISITE AFFIRMATIVE VOTE OF THE SHAREHOLDERS
OF THE COMPANY IN ACCORDANCE WITH APPLICABLE LAW;
(B)
NO STATUTE, RULE, REGULATION, EXECUTIVE
ORDER, DECREE OR INJUNCTION SHALL HAVE BEEN ENACTED, ENTERED, PROMULGATED, OR
ENFORCED BY ANY COURT OR GOVERNMENTAL ENTITY WHICH IS IN EFFECT AND HAS THE
EFFECT OF PROHIBITING THE CONSUMMATION OF THE MERGER; AND
(C)
(X) IN THE CASE OF THE COMPANY'S
OBLIGATIONS, ALL GOVERNMENTAL CONSENTS, ORDERS AND APPROVALS LEGALLY REQUIRED
FOR THE CONSUMMATION OF THE MERGER AND THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL HAVE BEEN OBTAINED AND BE IN EFFECT AT THE EFFECTIVE TIME, EXCEPT WHERE
THE FAILURE TO OBTAIN ANY SUCH CONSENT WOULD NOT REASONABLY BE EXPECTED TO
SUBJECT
49
any officer, director, employee or shareholder of the Company to civil or
criminal liability in respect of the failure to obtain such consent, and (y) in
the case of Parent's and Purchaser's obligations, (A) all governmental consents,
orders and approvals legally required for the consummation of the Merger and the
transactions contemplated hereby shall have been obtained and be in effect at
the Effective Time, and (B) there shall not be threatened or pending any suit,
action, or proceeding by any Governmental Entity, or by any other person which
has a reasonable possibility of success, with respect to this Agreement or the
Transactions, except where the failure to obtain any such consent or the