ALL ACTIONS NECESSARY TO CAUSE THE NEW PARENT
PARTIES TO COMPLY WITH THEIR RESPECTIVE OBLIGATIONS HEREUNDER.
NOTWITHSTANDING
ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, TO THE EXTENT THAT NEW PARENT
FAILS TO FULFILL ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT DUE SOLELY TO THE
BREACH OF THIS AGREEMENT BY EITHER RAMIUS OR COWEN, SUCH BREACHING PARTY SHALL
BE SOLELY LIABLE FOR ANY SUCH FAILURE BY NEW PARENT.
SECTION 8.4.
REGISTRATION RIGHTS AGREEMENT.
COWEN AND RAMIUS SHALL CAUSE NEW PARENT TO EXECUTE AND DELIVER TO TRANSFEROR THE
REGISTRATION RIGHTS AGREEMENT, AT OR PRIOR TO CLOSING.
SECTION 8.5.
JV NOTE; JV NOTE SECURITY
AGREEMENT.
IF THE NEW PARENT REVOLVER EXECUTION HAS NOT OCCURRED, COWEN AND
RAMIUS SHALL CAUSE NEW PARENT TO EXECUTE AND DELIVER TO TRANSFEROR THE JV NOTE
AND THE JV NOTE SECURITY AGREEMENT, AT OR PRIOR TO CLOSING.
SECTION 8.6.
TRANSFER RESTRICTION - JV INTEREST.
FOR A PERIOD OF ONE YEAR FOLLOWING THE CLOSING, JV ACQUIROR WILL NOT SELL,
TRANSFER OR OTHERWISE DISPOSE OF ALL OR A PORTION
18
OF THE JV INTEREST AND WILL NOT ACQUIRE ANY ADDITIONAL INTEREST IN THE JV;
PROVIDED THAT NO SALE, TRANSFER OR DISPOSITION TO ANY UNRELATED THIRD-PARTY
PURCHASER FROM JV ACQUIROR SHALL BE PROHIBITED HEREUNDER.
SECTION 8.7.
REORGANIZATION.
IN CONNECTION WITH
ANY MERGER, CONSOLIDATION, TENDER OFFER, OR ANY OTHER TRANSACTION RESULTING IN
THE STOCKHOLDERS OF NEW PARENT IMMEDIATELY BEFORE SUCH TRANSACTION OWNING
SUBSTANTIALLY THE SAME AGGREGATE VOTING POWER OF THE RESULTANT ENTITY, NEW
PARENT SHALL USE ITS REASONABLE BEST EFFORTS TO ENSURE THAT BA ALPINE HOLDINGS'
RIGHT TO DESIGNATE A BOARD DESIGNEE TO THE SURVIVING OR SUCCEEDING PARENT
COMPANY SHALL BE PRESERVED ON THE TERMS DESCRIBED HEREIN, INCLUDING THE
REQUISITE OWNERSHIP THRESHOLDS.
SECTION 8.8.
TAX TREATMENT. THE PARTIES HERETO
AGREE TO TREAT THE JV INTEREST EXCHANGE AS A TAXABLE TRANSACTION FOR U.S.
FEDERAL INCOME TAX PURPOSES THAT IS NOT PART OF THE CODE SECTION 351 EXCHANGE
CONTEMPLATED BY THE TRANSACTION AGREEMENT. NEW PARENT AND JV ACQUIROR (AND
COWEN, AS SUCCESSOR TO JV ACQUIROR) AGREE TO REPORT THE JV INTEREST EXCHANGE
CONSISTENTLY WITH THE FOREGOING ON ALL APPLICABLE TAX RETURNS AND WILL NOT TAKE
ANY ACTION, OR KNOWINGLY FAIL TO TAKE ANY ACTION, WHICH ACTION OR FAILURE TO ACT
COULD BE REASONABLY LIKELY TO CAUSE THE JV INTEREST EXCHANGE TO BE TREATED AS A
TAX-FREE TRANSACTION FOR U.S. FEDERAL INCOME TAX PURPOSES.
SECTION 8.9.
REGISTRATION.
RAMIUS SHALL IN GOOD
FAITH EVALUATE AND CONSIDER WHETHER THE SHARES OF CLASS A COMMON STOCK INCLUDED
IN THE EXCHANGE CONSIDERATION MAY IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS
BE INCLUDED IN THE REGISTRATION STATEMENT ON FORM S-4 (THE "FORM S-4") TO BE
FILED BY COWEN IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION AGREEMENT.
IF RAMIUS DETERMINES THAT SUCH SHARES MAY BE SO
INCLUDED, RAMIUS SHALL USE COMMERCIALLY REASONABLE EFFORTS TO INCLUDE SUCH
SHARES IN THE FORM S-4.
Section 8.8.
Closing.
Transferor, HVB AG,
Cowen, Ramius and New Parent each acknowledge and agree that the parties to this
Agreement intend (a) for the conditions to each