HOLDER BOTH A
TIMELY AND DULY COMPLETED SUBSCRIPTION FORM AND TIMELY PAYMENT FOR THE SHARES
BEING PURCHASED BY SUCH HOLDER, THE AMENDED PLAN SHALL PROVIDE THAT THE HOLDER
SHALL BE DEEMED TO HAVE RELINQUISHED AND WAIVED ITS RIGHT TO PARTICIPATE IN THE
RIGHTS OFFERING.
3
(E)
THE COMPANY HEREBY AGREES AND UNDERTAKES TO GIVE THE INVESTOR BY
ELECTRONIC FACSIMILE TRANSMISSION THE CERTIFICATION BY AN EXECUTIVE OFFICER OF
THE COMPANY CONFORMING TO THE REQUIREMENTS SPECIFIED HEREIN FOR SUCH
CERTIFICATION OF EITHER (I) A TRUE AND ACCURATE CALCULATION OF THE NUMBER OF
UNSUBSCRIBED SHARES AND THE AGGREGATE PURCHASE PRICE THEREFOR (A "PURCHASE
NOTICE") OR (II) IN THE ABSENCE OF ANY UNSUBSCRIBED SHARES, THE FACT THAT THERE
ARE NO UNSUBSCRIBED SHARES AND THAT THE BACKSTOP COMMITMENT (AS DEFINED IN
SECTION 2(A)) IS TERMINATED (A "SATISFACTION NOTICE"), AS SOON AS PRACTICABLE
AFTER THE EXPIRATION TIME AND, IN ANY EVENT, AT LEAST FOUR (4) BUSINESS DAYS
PRIOR TO THE EFFECTIVE DATE (THE DATE OF TRANSMISSION OF CONFIRMATION OF A
PURCHASE NOTICE OR A SATISFACTION NOTICE, THE "DETERMINATION DATE").
(F)
THERE WILL BE OVER-SUBSCRIPTION RIGHTS PROVIDED IN CONNECTION
WITH THE RIGHTS OFFERING, PROVIDED THAT THE RIGHT OF ANY CREDITOR TO
OVERSUBSCRIBE WILL NOT EXCEED 200% OF THE NUMBER OF SHARES SUCH CREDITOR IS
ENTITLED TO PURCHASE WITHOUT GIVING EFFECT TO ANY OVERSUBSCRIPTION RIGHT.
(G)
IN THE EVENT THE EXPIRATION TIME HAS NOT OCCURRED BY MAY 15, 2007,
ON MAY 16, 2007, THE COMPANY WILL PAY TO THE INVESTOR A NONREFUNDABLE FEE OF
$1,875,000, AND IN THE EVENT THE EXPIRATION TIME HAS NOT OCCURRED BY MAY 31,
2007, ON JUNE 1, 2007, THE COMPANY WILL PAY TO THE INVESTOR AN ADDITIONAL
NONREFUNDABLE FEE OF $1,875,000.
THE FEES PAYABLE PURSUANT TO THIS SECTION 2(G)
ARE HEREINAFTER REFERRED TO AS THE "EXPIRATION TIME FEE."
2.
THE BACKSTOP COMMITMENT AND PURCHASED SHARES.
(A)
ON THE BASIS OF THE REPRESENTATIONS AND WARRANTIES CONTAINED
HEREIN, BUT SUBJECT TO THE CONDITIONS SET FORTH IN SECTION 7 (INCLUDING WITHOUT
LIMITATION THE ENTRY OF THE AGREEMENT ORDER (AS DEFINED IN SECTION 5(A)) AND THE
AGREEMENT ORDER BECOMING A FINAL AGREEMENT ORDER (AS DEFINED BELOW IN THIS
SECTION)), THE INVESTOR AGREES TO PURCHASE ON THE CLOSING DATE, AND THE COMPANY
AGREES TO ISSUE AND SELL, AT THE AGGREGATE PURCHASE PRICE THEREFOR, ALL
UNSUBSCRIBED SHARES (THE "BACKSTOP COMMITMENT") AND ALL PURCHASED SHARES.
"FINAL AGREEMENT ORDER" SHALL MEAN THE AGREEMENT ORDER, WHICH HAS NOT BEEN
REVERSED, STAYED, MODIFIED OR AMENDED, AND AS TO WHICH (A) THE TIME TO APPEAL,
SEEK CERTIORARI OR REQUEST REARGUMENT OR FURTHER REVIEW OR REHEARING HAS
EXPIRED, AND NO APPEAL, PETITION FOR CERTIORARI OR REQUEST FOR REARGUMENT OR
FURTHER REVIEW OR REHEARING HAS BEEN TIMELY FILED, OR (B) ANY APPEAL THAT HAS
BEEN OR MAY BE TAKEN OR ANY PETITION FOR CERTIORARI OR REQUEST FOR REARGUMENT OR
FURTHER REVIEW OR REHEARING THAT HAS BEEN OR MAY BE FILED HAS BEEN RESOLVED BY
THE HIGHEST COURT TO WHICH THE ORDER OR JUDGMENT WAS APPEALED, FROM WHICH
CERTIORARI WAS SOUGHT OR TO WHICH THE REQUEST