OFFICE UNTIL THEIR RESPECTIVE SUCCESSORS ARE DULY ELECTED AND
QUALIFIED, OR THEIR EARLIER DEATH, RESIGNATION OR REMOVAL.
ARTICLE II
CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES
SECTION 2.1
EFFECT ON CAPITAL STOCK.
AT THE EFFECTIVE TIME, BY
VIRTUE OF THE MERGER AND WITHOUT ANY ACTION ON THE PART OF THE COMPANY, MERGER
SUB OR THE HOLDERS OF ANY SECURITIES OF THE COMPANY OR MERGER SUB:
(A)
CONVERSION OF COMPANY COMMON STOCK.
EACH SHARE OF COMMON STOCK,
PAR VALUE $.01 PER SHARE, OF THE COMPANY OUTSTANDING IMMEDIATELY PRIOR TO THE
EFFECTIVE TIME (SUCH SHARES, COLLECTIVELY, "COMPANY COMMON STOCK," AND EACH, A
"SHARE"), OTHER THAN (I) SHARES TO BE CANCELLED PURSUANT TO SECTION 2.1(B) AND
(II) DISSENTING SHARES (AS HEREINAFTER DEFINED), SHALL BE CONVERTED
AUTOMATICALLY INTO AND SHALL THEREAFTER REPRESENT THE RIGHT TO RECEIVE
3
THIRTY-FOUR DOLLARS ($34.00) IN CASH PLUS THE ADDITIONAL PER SHARE CONSIDERATION
(THE "MERGER CONSIDERATION").
THE "ADDITIONAL PER SHARE CONSIDERATION" SHALL
MEAN AN AMOUNT PER SHARE, IF ANY, ROUNDED TO THE NEAREST WHOLE CENT, EQUAL TO
(1) THIRTY-FOUR DOLLARS ($34) MULTIPLIED BY (2) EIGHT PERCENT (8%) MULTIPLIED BY
(3) THE ANNUALIZED PORTION (AS HEREINAFTER DEFINED).
THE "ANNUALIZED PORTION"
SHALL MEAN THE QUOTIENT OBTAINED BY DIVIDING (X) THE NUMBER OF DAYS ACTUALLY
ELAPSED FROM AND EXCLUDING JANUARY 1, 2008 TO AND INCLUDING THE CLOSING DATE BY
(Y) 365.
ALL SHARES THAT HAVE BEEN CONVERTED INTO THE RIGHT TO RECEIVE THE
MERGER CONSIDERATION AS PROVIDED IN THIS SECTION 2.1 SHALL BE AUTOMATICALLY
CANCELLED AND SHALL CEASE TO EXIST, AND THE HOLDERS OF CERTIFICATES WHICH
IMMEDIATELY PRIOR TO THE EFFECTIVE TIME REPRESENTED SUCH SHARES SHALL CEASE TO
HAVE ANY RIGHTS WITH RESPECT TO SUCH SHARES OTHER THAN THE RIGHT TO RECEIVE THE
MERGER CONSIDERATION.
(B)
ESOP AND MERGER SUB-OWNED SHARES.
EACH SHARE THAT IS OWNED,
DIRECTLY OR INDIRECTLY, BY THE ESOP OR MERGER SUB IMMEDIATELY PRIOR TO THE
EFFECTIVE TIME OR HELD BY THE COMPANY IMMEDIATELY PRIOR TO THE EFFECTIVE TIME
(IN EACH CASE, OTHER THAN ANY SUCH SHARES HELD ON BEHALF OF THIRD PARTIES) (THE
"CANCELLED SHARES") SHALL BE CANCELLED AND RETIRED AND SHALL CEASE TO EXIST, AND
NO CONSIDERATION SHALL BE DELIVERED IN EXCHANGE FOR SUCH CANCELLATION AND
RETIREMENT.
(C)
TREATMENT OF COMPANY PREFERRED STOCK.
EACH SHARE OF SERIES E
PREFERRED STOCK OF THE COMPANY THAT IS OWNED IMMEDIATELY PRIOR TO THE EFFECTIVE
TIME BY AN EAGLE ENTITY, WHICH SHARES CONSTITUTE ALL THE OUTSTANDING SHARES OF
SERIES E PREFERRED STOCK, SHALL REMAIN OUTSTANDING FOLLOWING THE MERGER IN
ACCORDANCE WITH THEIR TERMS.
(D)
CONVERSION OF MERGER SUB COMMON STOCK.
ALL THE SHARES OF COMMON
STOCK, PAR VALUE $.01 PER SHARE, OF MERGER SUB ISSUED AND OUTSTANDING
IMMEDIATELY PRIOR TO THE EFFECTIVE TIME SHALL BE CONVERTED INTO AND BECOME, IN
THE AGGREGATE, 56,521,739 VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE SHARES OF
COMMON STOCK, PAR VALUE $.01 PER SHARE, OF THE SURVIVING CORPORATION WITH THE
SAME RIGHTS, POWERS AND PRIVILEGES AS THE SHARES SO CONVERTED AND, TOGETHER WITH
THE SHARES OF SERIES E PREFERRED STOCK REFERRED TO ABOVE IN SECTION 2.1(C),
SHALL