Common use of Share Exchange Clause in Contracts

Share Exchange. At the Closing (and in any event immediately prior to the Effective Time), upon the terms and subject to the conditions of this Agreement, (a) the Rollover Holder hereby shall transfer, exchange and deliver to Merger Sub a number of shares of Company Stock (such shares, the “Company Exchange Stock”) having an aggregate value (valued in the manner set forth below) (the “Exchanged Company Stock Value”) equal to the Allocated Sale Percentage multiplied by the amount equal to the product of (i) 0.35 multiplied by (ii) (A) the Base Purchase Price minus (B) the sum of the Closing Option Consideration, the Closing Restricted Stock Unit Consideration, the aggregate exercise price of the First Tier In-The-Money Options and the Representative Expense Fund) (in the case of the foregoing clauses (A) and (B), as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement)) and (b) in exchange therefor, Merger Sub shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver to the Rollover Holder a number of shares of Parent Common Stock (rounding up or down to the nearest whole share), in book-entry form, equal to (i) the Exchanged Company Stock Value divided by (ii) $104.36 (such price, the “Parent Trading Price,” such shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement).

Share Exchange. At As soon as reasonably practicable following the Closing (Effective Time and in accordance with Sections 202 et seq. (including Sections 185 and 187) of the German Stock Corporation Law (Aktiengesetz) (the "GSCL") and any event immediately prior additional requirements pursuant to Section 6.14, Parent shall: (i) effect the increase of its stated share capital (Grundkapital) by (A) using authorized share capital (Ausnutzung Genehmigten Kapitals) to issue new Parent Ordinary Shares at nominal value without premium (zum geringsten Ausgabebetrag) underlying the Merger Consideration to the Effective TimeContribution Agent for the benefit of the former holders of shares of the Company Common Stock (the "Share Issuance") against the contribution by the Contribution Agent to Parent of all of the issued and outstanding shares of Surviving Corporation Common Stock by contribution-in-kind by a resolution (Vorstandsbeschluss) of the Parent Executive Board with the approval (Zustimmung des Aufsichtsrats) of the Parent Supervisory Board and (B) registering the implementation of such increase of Parent's stated capital with the commercial register (Handelsregister) of the local court (Amtsgericht) Aachen of Parent (the "Commercial Register") (such registration, the "Share Capital Increase"), upon the terms ; and subject to the conditions of this Agreement, (aii) cause (A) the Rollover Holder hereby shall transferContribution Agent to deposit with the Depositary, exchange and deliver to Merger Sub a number for the benefit of the holders of shares of Company Stock (such sharesCommon Stock, the “Company Exchange Stock”) having an aggregate value (valued in Parent Ordinary Shares underlying the manner set forth below) (the “Exchanged Company Stock Value”) equal to the Allocated Sale Percentage multiplied by the amount equal to the product of (i) 0.35 multiplied by (ii) (A) the Base Purchase Price minus Merger Consideration, (B) the sum of Depositary to issue to the Closing Option ConsiderationExchange Agent the Parent ADSs comprising the Merger Consideration and (C) the Exchange Agent to deliver in accordance with this Article II, the Closing Restricted Parent ADSs reflecting the Merger Consideration and evidenced by Parent ADRs to the former holders of shares of Company Common Stock Unit Consideration(such Parent ADSs, together with any dividends or distributions with respect thereto, being referred to as the aggregate exercise price "Exchange Fund") and any cash in lieu of Parent ADRs representing fractional Parent ADSs (the First Tier In-The-Money Options and the Representative Expense Fund) (actions described in the case of the foregoing clauses (Ai) and (Bii) above, collectively, the "Share Exchange"). The Exchange Agent shall, as set forth pursuant to irrevocable instructions, deliver the Parent ADSs evidenced by American Depositary Receipts issued by the Depository on behalf of Parent ("Parent ADRs") contemplated to be issued pursuant to Section 2.01 out of the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing Exchange Fund in accordance with Section 1.05 2.02(b). The Exchange Fund shall not be used for any other purpose. At the Effective Time, Parent's obligation to effect the Share Exchange shall become unconditional, subject only to the completion of the Merger Agreementcontribution-in-kind by the Contribution Agent described in this Section 2.02(a)) and (b) in exchange therefor, Merger Sub shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver . Subject to the Rollover Holder a number approval of shares the Commercial Register, the transfer (dingliche und schuldrechtliche Übertragung) of Parent Surviving Corporation Common Stock (rounding up or down to Parent by the Contribution Agent by contribution-in-kind shall be made subject to the nearest whole share)condition subsequent that the implementation of the capital increase (Durchführung der Kapitalerhöhung) is registered in the Commercial Register within a reasonable period of time following the filing of the application for registration; provided, in book-entry form, equal to (i) that if the Exchanged Company Stock Value divided by (ii) $104.36 (Commercial Register refuses such priceregistration because of the condition subsequent, the “Parent Trading Price,” such shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock contribution-in-kind shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement)made without such condition subsequent.

Share Exchange. At Subject to the terms of this Stock Purchase Agreement (the "Agreement") at the Closing (on the Closing Date, and in any event immediately prior full consideration for the assignment, transfer, and delivery to the Effective TimeAcquiror by the Stockholders of all or substantially all of the issued and outstanding shares of Common Stock of Mediatech ("Mediatech's Common Stock"), upon the terms Stockholders shall receive an aggregate of 900,000 shares of the $.001 par value per share Common Stock of the Acquiror ("Acquiror's Common Stock"), promissory notes (the "Promissory Notes") in the aggregate of $6,200,000 less sums attributable to a calculation (the "Loan Adjustment Calculation") hereinafter described, and subject to an aggregate of $3,000,000 cash. The cash, Acquiror's Common Stock, and the conditions Promissory Notes shall be shared, on a pro rata basis, among the Stockholders of this AgreementMediatech in accordance with their percentage ownership of Mediatech on the Closing Date. The amount of consideration paid for 100% of the issued and outstanding shares shall be reduced, (a) on a pro rata basis, by the Rollover Holder hereby shall transfer, exchange and deliver to Merger Sub a number of shares of Company Mediatech owned by Stockholders who refuse to participate in this Stock (such shares, the “Company Exchange Stock”) having an aggregate value (valued in the manner set forth below) Purchase Agreement (the “Exchanged Company Stock Value”) equal "Declining Stockholders"). The Declining Stockholders shall remain minority stockholders of Mediatech. The number of shares to be issued to the Allocated Sale Percentage multiplied by Stockholders shall be adjusted, as necessary, to account for any forward or reverse stock splits, stock dividends, or any other increases or reductions of the amount equal number of Acquiror's shares outstanding without receiving compensation therefor in money, property, or services. The Promissory Note, attached hereto as Schedule 1.1, shall require Acquiror, commencing twelve (12) months from the closing date, to make payments in quarterly installments of $125,000 per quarter, including accrued interest at the product rate of eight percent (i8%) 0.35 multiplied by (ii) (A) per annum until the Base Purchase Price minus (B) the sum ten year anniversary of the Closing Option Consideration, the Closing Restricted Date at which time any unpaid principal sum balance and any accrued and unpaid interest shall be paid in full. The shares of Acquiror's Common Stock Unit Consideration, the aggregate exercise price of the First Tier In-The-Money Options and the Representative Expense Fund) (in the case of the foregoing clauses (A) and (B), as set forth on the Estimated Base Purchase Price Statement (as the same may to be revised prior issued to the Closing in accordance with Section 1.05 of the Merger Agreement)) Stockholders shall bear a restrictive legend, and (b) in exchange therefor, Merger Sub shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver be subject to the Rollover Holder a number of shares of Parent Common Stock (rounding lock-up or down to the nearest whole share), provisions provided in book-entry form, equal to (i) the Exchanged Company Stock Value divided by (ii) $104.36 (such price, the “Parent Trading Price,” such shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement).6.2

Share Exchange. (a) The Shareholders agree to transfer to Freedom, and Freedom agrees to purchase from the Shareholders, all of the Shareholders' right, title and interest in the Steampunk Stock, representing 100% of the issued share capital of Steampunk, free and clear of all mortgages, liens, pledges, security interests, restrictions, encumbrances, or adverse claims of any nature. (b) At the Closing (and as defined in any event immediately prior to the Effective TimeSection 2 below), upon surrender by the terms Shareholders and the cancellation by Steampunk of the certificates evidencing the Steampunk Stock as registered in the name of each Shareholder, and pursuant to the registration of Freedom in the register of members maintained by Steampunk as the new holder of the Steampunk Stock and the issuance of a certificate evidencing the aforementioned registration of the Steampunk Stock in the name of Freedom, Freedom will cause 4,812,209 shares (the “New Shares”) (subject to the conditions of this Agreement, (a) the Rollover Holder hereby shall transfer, exchange and deliver to Merger Sub a number of adjustment for fractionalized shares of Company Stock (such shares, the “Company Exchange Stock”) having an aggregate value (valued in the manner as set forth below) of Freedom’s common stock, par value $.0001 to be issued to the Shareholders (or their designees), and Lin will cause 10,096,229 shares of his Common Stock (the “Exchanged Company Stock ValueLin Stock,” together with the New Shares, the “Acquisition Stock”) equal to be transferred to the Allocated Sale Percentage multiplied by Shareholders (or their designees), which collectively shall represent 55% of the amount equal issued and outstanding common stock of Freedom immediately after the Closing (as hereinafter defined), in exchange for the Steampunk Stock, representing 100% of the issued share capital of Steampunk, as further set forth on the capitalization table annexed hereto as Schedule 1(b) and made a part hereof. The Acquisition Stock will be issued and transferred (as the case may be) to the product of (i) 0.35 multiplied by (ii) (A) the Base Purchase Price minus (B) the sum of the Closing Option Consideration, the Closing Restricted Stock Unit Consideration, the aggregate exercise price of the First Tier In-The-Money Options and the Representative Expense Fund) (in the case of the foregoing clauses (A) and (B), Shareholders as set forth on Exhibit A (subject to adjustment as set forth below), at the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 Closing. As a result of the Merger Agreement)) and (b) in exchange therefor, Merger Sub shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver to of the Rollover Holder a number of shares of Parent Common Steampunk Stock for the Acquisition Stock (rounding up or down to the nearest whole share), in book-entry form, equal to (i) the Exchanged Company Stock Value divided by (ii) $104.36 (such price, the “Parent Trading Price,” such shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”), Steampunk will become a wholly owned subsidiary (the “Subsidiary”) of Freedom (the “Parent”). For purposes No fractional shares of common stock are to be issued pursuant hereto; if an issuance would result in the forgoing, each issuance of a fraction of a share of Series A Preferred Stock included in the Company Exchange Stock common stock, Freedom shall be valued at the Series A Per Share Amount, each round such fraction of a share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior common stock up to the Closing in accordance with Section 1.05 of the Merger Agreement)nearest whole share.

Share Exchange. At the Closing (Issuance of Series B Convertible Preferred ------------------------------------------------------------- Stock, Series C Convertible Preferred Stock and in any event immediately prior to the Effective Time), upon the terms and subject to the conditions of this Agreement, Series C Warrants. ------------------------------------------------------------------ (a) Upon the Rollover Holder hereby following terms and conditions, the Company shall transfer, exchange and deliver issue to Merger Sub a each DVA Shareholder the number of shares of Company Stock (such sharesthe Company's Series B Convertible Preferred Stock, the “Company Exchange Stock”) having an aggregate par value (valued in the manner set forth below) $.01 (the “Exchanged Company Stock Value”"Series B Preferred Stock") equal to or ------------------------ Series C Convertible Preferred Stock, par value $.01 (the Allocated Sale Percentage multiplied by the amount equal to the product of (i"Series C Preferred ------------------ Stock") 0.35 multiplied by (ii) (A) the Base Purchase Price minus (B) the sum of the Closing Option Consideration, the Closing Restricted Stock Unit Consideration, the aggregate exercise price of the First Tier In-The-Money Options and the Representative Expense Fund) (in the case of the foregoing clauses (A) and (B), as set forth opposite the name of such DVA Shareholder on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement)) and (b) Exhibit B ----- --------- hereto, in exchange therefor, Merger Sub shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver to for the Rollover Holder a number of shares of Parent common stock of DVA (the "DVA --- Common Stock (rounding up or down Stock") also set forth opposite the name of such DVA Shareholder on ------------- Exhibit B hereto. Pursuant to the nearest whole share), in book-entry form, equal to (i) the Exchanged Company Stock Value divided by (ii) $104.36 (such pricethis Section 1.2, the “Parent Trading Price,” such Company will issue an ---------- ------------ aggregate of 26,750 shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included and an aggregate of 49,451 shares of Series C Preferred Stock to the DVA Shareholders, in exchange for 100% of the issued and outstanding capital stock of DVA. The Series B Preferred Stock shall have the rights set forth in the Company Exchange Certificate of Designations, Limitations and Preferences attached hereto as Exhibit F. The --------- Series C Preferred Stock shall be valued at have the rights set forth in the Certificate of Designations, Limitations and Preferences attached hereto as Exhibit G. ---------- (b) Upon the following terms and conditions, the Company shall issue to TotalCFO, LLC ("TotalCFO"), in its capacity as a DVA Shareholder, -------- Series B Per Share Amount and each share C Warrants, in substantially the form attached hereto as Exhibit H (the --------- "Series C Warrants"), to purchase the number of shares of Common Stock included in as set ------------------- forth opposite the Company Exchange Stock shall be valued at the Per Share Participating Amountname of TotalCFO on Exhibit B hereto, in each case as set forth on exchange for the Estimated Base Purchase Price Statement --------- surrender and cancellation of Warrant No. 1 to subscribe for and purchase 2,000,000 shares of the Common Stock of DVA (as the same may be revised prior to the Closing "DVA Warrant"). The Company and DVA Shareholders are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration afforded by Section 1.05 4(2) of the Merger Agreement)Securities Act, including Regulation D, and/or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments to be made hereunder.

Share Exchange. At the Closing (and in any event immediately prior to the Effective Time), upon On the terms and subject to the conditions of set forth in this Agreement, (a) the Rollover Holder hereby shall transfer, exchange Company agrees to issue and deliver to Merger Sub the Investor the Exchange Interim Securities and a warrant (the “Warrant”) to purchase the number of shares of Company Common Stock (such shares, the “Company Exchange Stock”) having an aggregate value (valued in the manner set forth below) (the “Exchanged Company Stock Value”) equal to the Allocated Sale Percentage multiplied by the amount equal to the product of (i) 0.35 multiplied by (ii) (A) the Base Purchase Price minus number of Exchange Interim Securities multiplied by (B) the quotient of (x) 790,000,000 and (y) the sum of (1) the Closing Option Considerationshares of Series M Interim Stock issued to the Investor and the additional holders of preferred stock of the Company (the “Preferred Stock”) pursuant to the Exchange and the other private exchange offers (other than the UST Exchanges) as contemplated by the Transaction Outline (the “Transaction Outline”) dated as of February 27, 2009 as agreed upon with the UST (as defined below), the Closing Restricted Investor and certain holders of the Company’s preferred stock (the “Private Exchanges”) and attached as Annex A, (2) the shares of Series M Interim Stock Unit Considerationissued to the United States Department of the Treasury (the “UST”) pursuant to the private exchange offer (the “First UST Exchange”) with the UST previous to, or concurrent with, the aggregate exercise price issuances contemplated by (1) as contemplated by the Transaction Outline, and (3) the shares of Series M Interim Stock to be issued to the UST pursuant to subsequent exchanges (each, a “Subsequent UST Exchange” and, together with the First UST Exchange, the “UST Exchanges”) upon consummation of the First Tier In-The-Money Options public exchange offers to be made by the Company for its preferred securities, trust preferred securities and enhanced trust preferred securities as contemplated by the Representative Expense Fund) Transaction Outline (in it being agreed by the case Company and acknowledged by the Investor that pursuant to the terms of the foregoing clauses (A) and (B)Warrant, as set forth on the Estimated Base Purchase Price Statement (as number of shares of Common Stock subject to any such warrant will be automatically reduced at the same may be revised prior time of the closing of any Subsequent UST Exchange to reflect the issuance of any Series M Interim Stock at such time to the Closing UST, in accordance with Section 1.05 of the Merger Agreementforegoing formula)) , and (b) in exchange therefor, Merger Sub at the Closing, the Investor shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver to the Rollover Holder a number of shares of Parent Common Stock (rounding up Company the Exchange Preferred Shares duly endorsed or down to the nearest whole share), accompanied by stock powers duly endorsed in book-entry form, equal to (i) the Exchanged Company Stock Value divided by (ii) $104.36 (such price, the “Parent Trading Price,” such shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement)blank.

Share Exchange. At the Closing (and in any event immediately prior to the Effective Time), upon Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing (as hereinafter defined), the Parties shall do the following: (a) the Rollover Holder hereby Each AX Shareholder shall transfer, exchange convey, assign, and deliver all AX Shares owned by such AX Shareholder to Merger Sub a number of VADO in exchange for shares of Company Vado Common Stock (such shares, at the “Company Exchange Stock”) having an aggregate value (valued in the manner set forth below) exchange ratio of 8.75 shares of Vado Common Stock (the “Exchanged Company Stock ValueExchange Ratio”) equal to the Allocated Sale Percentage multiplied by the amount equal to the product of (i) 0.35 multiplied by (ii) (A) the Base Purchase Price minus (B) the sum of the Closing Option Consideration, the Closing Restricted Stock Unit Consideration, the aggregate exercise price of the First Tier In-The-Money Options and the Representative Expense Fund) (in the case of the foregoing clauses (A) and (B)for each AX Share, as set forth on Schedule 1.01(a), together with such documents evidencing the Estimated Base Purchase Price Statement transfer and assignments of their respective interests in AX in the form satisfactory to VADO. The AX Shares transferred to VADO at the Closing (as defined in Section 1.02), which is set forth on Schedule 1.01(a), will constitute 100% of the same may issued and outstanding shares of capital stock of AX, or such lesser percentage as provided in Section 6.01 of this Agreement. Only AX Shareholders who are an accredited investors as such term defined by Rule 501(a) under the Securities Act of 1933 (the “Securities Act”) shall be revised prior eligible to be a party to this Agreement. (b) As consideration for its acquisition of the AX Shares, at the Closing VADO shall issue the VADO Exchange Shares to the AX Shareholders at the Exchange Ratio in the amounts set forth opposite each AX Shareholder’s name on Schedule 1.01(a) hereto by issuing or causing the issuance of such Exchange Shares to the AX Shareholders in book entry form with VADO’s transfer agent. A copy of the pro forma capitalization table immediately following the Closing is set forth in Schedule 1.01(b). (c) Immediately following the Closing (as hereinafter defined), all outstanding AX stock options and restricted stock units (together, “AX Employee Awards”), issued pursuant to AX employee benefit plans shall be assumed by VADO under a newly adopted equity incentive plan of VADO (the “VADO Equity Incentive Plan”) in form and substance satisfactory to AX, and exchanged for VADO stock options and restricted stock units, as applicable (together, “VADO Awards”) at the Exchange Ratio, as set forth in Schedule 1.01(c) and otherwise on terms consistent, insofar as is practicable, with the terms of such AX Employee Awards, including the general vesting terms of the AX Employee Awards but excluding any change of control provisions providing for accelerated vesting which may have otherwise been triggered by this Agreement, and AX will obtain, execute and deliver such waivers or agreements with the holders of such AX Employee Awards as are necessary and in such forms as VADO and AX shall approve to amend such vesting provisions in accordance with the foregoing. (d) For federal income tax purposes, the Share Exchange is intended to constitute a “reorganization” within the meaning of Section 1.05 368(a)(1)(B) of the Merger Agreement)) Code and (b) the parties shall report the transactions contemplated by this Agreement consistent with such intent and shall take no position in exchange therefor, Merger Sub shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver any tax filing or legal proceeding inconsistent therewith. Notwithstanding anything to the Rollover Holder a number of shares of Parent Common Stock (rounding up contrary contained in this Agreement, the Parties acknowledge and agree that no Party is making any representation or down warranty as to the nearest whole share)qualification of the Share Exchange as a reorganization under Section 368 of the Code or as to the effect, in book-entry formif any, equal that any transaction consummated prior to or after the Closing Date has or may have on such reorganization status. The Parties acknowledge and agree that each (i) has had the Exchanged Company Stock Value divided opportunity to obtain independent legal and tax advice with respect to the transactions contemplated by this Agreement, and (ii) $104.36 (such price, the “Parent Trading Price,” such shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement)is responsible for paying its own Taxes.

Share Exchange. At the Closing (and in any event immediately prior to the Effective Time), upon On the terms and subject to the conditions of set forth in this Agreement, (a) the Rollover Holder hereby shall transfer, exchange Company agrees to issue and deliver to Merger Sub the Investor the Exchange Interim Securities and a warrant (the “Warrant”) to purchase the number of shares of Company Common Stock (such shares, the “Company Exchange Stock”) having an aggregate value (valued in the manner set forth below) (the “Exchanged Company Stock Value”) equal to the Allocated Sale Percentage multiplied by the amount equal to the product of (i) 0.35 multiplied by (ii) (A) the Base Purchase Price minus number of Exchange Interim Securities multiplied by (B) the quotient of (x) 790,000,000 and (y) the sum of (1) the Closing Option Considerationshares of Series M Interim Stock issued to the Investor and the additional holders of preferred stock of the Company (the “Preferred Stock”) pursuant to the Exchange and the other private exchange offers (other than the UST Exchanges) as contemplated by the Transaction Outline (the “Transaction Outline”) dated as of February 27, 2009 as agreed upon with the UST (as defined below), the Closing Restricted Investor and certain holders of the Company’s preferred stock (the “Private Exchanges”) and attached as Annex B, (2) the shares of Series M Interim Stock Unit Considerationissued to the United States Department of the Treasury (the “UST”) pursuant to the private exchange offer (the “First UST Exchange”) with the UST previous to, or concurrent with, the aggregate exercise price issuances contemplated by (1) as contemplated by the Transaction Outline, and (3) the shares of Series M Interim Stock to be issued to the UST pursuant to subsequent exchanges (each, a “Subsequent UST Exchange” and, together with the First UST Exchange, the “UST Exchanges”) upon consummation of the First Tier In-The-Money Options public exchange offers to be made by the Company for its preferred securities, trust preferred securities and enhanced trust preferred securities as contemplated by the Representative Expense Fund) Transaction Outline (in it being agreed by the case Company and acknowledged by the Investor that pursuant to the terms of the foregoing clauses (A) and (B)Warrant, as set forth on the Estimated Base Purchase Price Statement (as number of shares of Common Stock subject to any such warrant will be automatically reduced at the same may be revised prior time of the closing of any Subsequent UST Exchange to reflect the issuance of any Series M Interim Stock at such time to the Closing UST, in accordance with Section 1.05 of the Merger Agreementforegoing formula)) , and (b) in exchange therefor, Merger Sub at the Closing, the Investor shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver to the Rollover Holder a number of shares of Parent Common Stock (rounding up Company the Exchange Preferred Shares duly endorsed or down to the nearest whole share), accompanied by stock powers duly endorsed in book-entry form, equal to (i) the Exchanged Company Stock Value divided by (ii) $104.36 (such price, the “Parent Trading Price,” such shares of Parent Common Stock, the “Parent Exchange Shares” and such exchange, the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case as set forth on the Estimated Base Purchase Price Statement (as the same may be revised prior to the Closing in accordance with Section 1.05 of the Merger Agreement)blank.

Share Exchange. At the Closing (Section 3.01 The Exchange and in any event immediately prior to the Effective Time), upon Other Issuance. On the terms and subject to the conditions of set forth in this Agreement, on the Closing Date (aas defined in Section 3.02), the SNO Shareholders listed in Composite Exhibit A, representing an aggregate of at least 21,285,000 and up to 21,500,000 shares of SNO’s Class A Common Stock (“SNO Class A Common Stock”) the Rollover Holder hereby and 1,000,000 shares of SNO’s Class B Common Stock (“SNO Class B Common Stock”; together with “SNO Class A Common Stock”, referred to herein as “SNO Common Stock”) (collectively, representing at least 99% and up to 100% of SNO’s issued and outstanding common stock), upon their agreement, shall transfersell, exchange assign, transfer and deliver to Merger Sub a number the Company, free and clear of all liens, pledges, encumbrances, charges, restrictions or known claims of any kind, nature, or description, all of the shares of Company Stock (such shares, the “Company Exchange Stock”) having an aggregate value (valued in the manner set forth below) (the “Exchanged Company Stock Value”) equal to the Allocated Sale Percentage multiplied SNO held by the amount equal to the product of (i) 0.35 multiplied by (ii) (A) the Base Purchase Price minus (B) the sum of the Closing Option Consideration, the Closing Restricted Stock Unit Consideration, the aggregate exercise price of the First Tier In-The-Money Options and the Representative Expense Fund) (in the case of the foregoing clauses (A) and (B), them as set forth on Composite Exhibit A; the Estimated Base Purchase Price Statement objective of such purchase (as the same may be revised prior “Exchange”) being the acquisition by the Company of at least 99% and up to the Closing in accordance with Section 1.05 100% of the Merger Agreement)) issued and (b) in exchange therefor, Merger Sub shall (and Parent agrees to cause Merger Sub to) transfer, exchange and deliver to the Rollover Holder a number of outstanding shares of Parent SNO Class A Common Stock (rounding up or down to and 100% of the nearest whole share), in book-entry form, equal to (i) the Exchanged Company Stock Value divided by (ii) $104.36 (such price, the “Parent Trading Price,” such issued and outstanding shares of Parent SNO Class B Common Stock, . In exchange for the “Parent Exchange Shares” and transfer of such exchange, securities by the “Share Exchange”). For purposes of the forgoing, each share of Series A Preferred Stock included in the Company Exchange Stock shall be valued at the Series A Per Share Amount, each share of Series A-1 Preferred Stock included in the Company Exchange Stock shall be valued at the Series A-1 Per Share Amount, each share of Series B Preferred Stock included in the Company Exchange Stock shall be valued at the Series B Per Share Amount and each share of Common Stock included in the Company Exchange Stock shall be valued at the Per Share Participating Amount, in each case SNO Shareholders as set forth on Composite Exhibit A, the Estimated Base Purchase Price Statement Company shall deliver to each such SNO Shareholder one (1) share (the “Exchange Shares”) of the Company’s common stock (“Company Common Stock”) for each share of their SNO Common Stock (an aggregate of at least 22,285,000 and up to 22,500,000 shares of the Company Common Stock). Simultaneously, the Company shall issue an aggregate of 2,500,000 shares (“Other Issued Shares”) of the Company Common Stock (“Other Issuance”) to certain other persons (“Other Persons”) as set forth in Exhibit B in exchange for, among other things, the forgiveness of the total debt to date owed by the Company to Danzig Ltd (which is an affiliate of Xxxxxxx Xxxxxxxx) in the approximate amount of $20,522. After the Exchange, Other Issuance and other transactions set forth herein have been completed, the SNO shareholders will own at least 22,285,000 and up to 22,500,000 restricted shares of Company Common Stock or ap pro x im ate ly 89% of the total outstanding shares of Com pany Com m on Stock. Upon completion of the issuance of at least 22,285,000 and up to 22,500,000 shares of the Com pany Com m on Stock to the SNO Shareholders and 2,500,000 shares of Company Common Stock to the Other Persons, there will be a total of at least 25,172,000 and up to 25,387,000 shares of the Company Common Stock outstanding and 1,000,000 shares of the Company ’s Series E Preferred Stock outstanding. No other securities of the Company will be outstanding. The Exchange Shares are hereinafter referred to as the same may be revised prior “Exchange Consideration” or the “Securities”. At the Closing, the SNO Shareholders shall, on surrender of their certificates representing their SNO shares to the Closing in accordance with Section 1.05 Company or its registrar or transfer agent, be entitled to receive a certificate or certificates evidencing their ownership of the Merger Agreement)Exchange Shares.