TO HAVE WAIVED ITS RIGHT TO
INDEMNIFICATION WITH RESPECT TO SUCH DISPUTED AND UNSETTLED MATTERS.
SECTION 2.8
CONVERSION OF THE BCCM SHARES.
(A)
CONVERSION OF SHARES. ALL OF THE BCCM SHARES OUTSTANDING AS OF THE
EFFECTIVE TIME SHALL, BY VIRTUE OF THE MERGER AND WITHOUT ANY ACTION ON THE PART
OF THE BCCM
13
SHAREHOLDERS OR THE PURCHASER, AUTOMATICALLY BE CONVERTED INTO THE RIGHT TO
RECEIVE MERGER CONSIDERATION.
(B)
TREASURY SHARES.
EACH SHARE OF CAPITAL STOCK HELD IN BCCM'S TREASURY AS
OF THE EFFECTIVE TIME, IF ANY, SHALL, BY VIRTUE OF THE MERGER, BE CANCELED
WITHOUT PAYMENT OF ANY CONSIDERATION THEREFOR.
(C)
PURCHASER SHARES. EACH SHARE OF CAPITAL STOCK OF PURCHASER ISSUED AND
OUTSTANDING IMMEDIATELY PRIOR TO THE EFFECTIVE TIME WILL REMAIN ISSUED AND
OUTSTANDING AND SHALL CONSTITUTE ONE (1) SHARE OF CAPITAL STOCK OF THE SURVIVING
COMPANY.
SECTION 2.9
EXCHANGE OF CERTIFICATES. AT THE CLOSING, CERTIFICATES
REPRESENTING THE BCCM SHARES SHALL BE CANCELED IN EXCHANGE FOR THE MERGER
CONSIDERATION.
ARTICLE III
UNIT PURCHASE AND CLOSING
SECTION 3.1
UNIT PURCHASE.
(A)
UPON THE TERMS AND SUBJECT TO THE
CONDITIONS OF THIS AGREEMENT, AT THE CLOSING, (I) CROMPTON AGREES TO SELL TO
PURCHASER, AND THE PURCHASER SHALL PURCHASE FROM CROMPTON, THE CROMPTON
INTEREST, FREE AND CLEAR OF ALL LIENS, (II) EACH OF THE MANAGEMENT MEMBERS
AGREES TO SELL TO PURCHASER, AND THE PURCHASER SHALL PURCHASE FROM THE
MANAGEMENT MEMBERS, THE MANAGEMENT MEMBERS' INTEREST, FREE AND CLEAR OF ALL
LIENS AND (III) EACH OF THE CARRYHOLDERS AGREES TO RECEIVE PAYMENT HEREUNDER IN
FULL SATISFACTION OF SUCH CARRYHOLDER'S RIGHTS TO ITS CARRIED INTEREST, ALL IN
ACCORDANCE WITH NUMBERS AND AMOUNTS SET FORTH ON SCHEDULE 4.5, WITH RESPECT TO
THE CROMPTON AND MANAGEMENT MEMBERS, AND SCHEDULE 1.1 WITH RESPECT TO THE
CARRYHOLDERS.
(B)
PURCHASER SHALL NOT BE REQUIRED TO PURCHASE THE CROMPTON INTEREST, THE
MANAGEMENT MEMBERS' INTEREST OR THE CARRIED INTEREST, UNLESS (I) THE DS SELLERS,
AS A GROUP, SELL AND CONVEY TO PURCHASER ALL OF THE CROMPTON INTEREST, THE
MANAGEMENT MEMBERS' INTEREST AND THE CARRIED INTEREST, AND (II) THE MERGER HAS
BEEN EFFECTED PURSUANT TO ARTICLE II.
SECTION 3.2
PURCHASE PRICE.
(A)
IN CONSIDERATION FOR THE SALE AND
CONVEYANCE BY CROMPTON TO PURCHASER OF THE CROMPTON INTEREST, THE SALE AND
CONVEYANCE BY THE MANAGEMENT MEMBERS OF THE MANAGEMENT MEMBERS' INTEREST AND THE
FULL SATISFACTION OF ALL CARRYHOLDERS' RIGHT TO THEIR RESPECTIVE CARRIED
INTEREST, PURCHASER SHALL, AT THE CLOSING, SUBJECT TO SECTION 3.1(B), (I) PAY TO
CROMPTON THE AMOUNT SET FORTH OPPOSITE ITS NAME ON SCHEDULE 4.5, (II) PAY TO
EACH OF THE MANAGEMENT MEMBERS THE AMOUNTS SET FORTH OPPOSITE EACH OF THEIR
NAMES ON SCHEDULE 4.5 AND (III) PAY TO EACH OF THE CARRYHOLDERS THE AMOUNTS SET
FORTH OPPOSITE EACH OF THEIR NAMES ON SCHEDULE 1.1 PURSUANT TO THE TERMS OF THE
CARRYHOLDERS' AGENCY AGREEMENT (THE CONSIDERATION DESCRIBED IN THE FOREGOING
ITEMS (I) THROUGH (III), THE "PURCHASE PRICE").
ALL AMOUNTS PAYABLE AT CLOSING
SHALL BE PAID IN CASH BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS TO
ACCOUNTS DESIGNATED BY DS SELLERS AT