STANDBY PURCHASER IN WRITING AS TO
(I) THE AGGREGATE NUMBER OF CASH-OUT SHARES, (II) THE AGGREGATE NUMBER OF SHARES
OF NEW COMMON STOCK TO BE ISSUED TO THE STANDBY PURCHASERS IN THEIR CAPACITY AS
CLAIM 3 HOLDERS AND CLAIM 4 HOLDERS, (III) THE AGGREGATE NUMBER OF RETAINED
SHARES, (IV) THE SUBSCRIPTION PRICE, (V) THE AGGREGATE NUMBER OF STANDBY
PURCHASE SHARES, (VI) THE NUMBER OF STANDBY PURCHASE SHARES TO BE PURCHASED BY
EACH STANDBY PURCHASER AND ITS RESPECTIVE STANDBY PERCENTAGE AND (VII) THE
AGGREGATE SUBSCRIPTION PRICE PAYABLE BY EACH STANDBY PURCHASER TO THE COMPANY
FOR ITS STANDBY PURCHASE SHARES.
(C)
UPON THE TERMS AND SUBJECT TO THE CONDITIONS CONTAINED IN THIS
AGREEMENT, AT THE CLOSING THE COMPANY SHALL ISSUE AND SELL TO EACH STANDBY
PURCHASER, AND EACH STANDBY PURCHASER SHALL SUBSCRIBE FOR AND PURCHASE FROM THE
COMPANY (INDEPENDENT OF THE OBLIGATION OF ANY OTHER STANDBY PURCHASER) ITS
STANDBY PERCENTAGE OF THE STANDBY PURCHASE SHARES (THE "STANDBY PURCHASE").
8
2.2
Closing; Payments.
(A)
THE COMPLETION OF THE STANDBY PURCHASE (THE "CLOSING") SHALL TAKE
PLACE AT THE OFFICES OF AKIN GUMP STRAUSS HAUER & FELD LLP IN NEW YORK, NEW
YORK, ON THE DATE ON WHICH ALL OF THE CONDITIONS TO THE OCCURRENCE OF THE
EFFECTIVE DATE (OTHER THAN THE CONDITION OF RECEIPT OF PAYMENT FROM THE STANDBY
PURCHASERS OF THE PURCHASE PRICE IN RESPECT OF THEIR STANDBY PURCHASE) HAVE BEEN
SATISFIED OR WAIVED AND ALL OF THE CONDITIONS SET FORTH UNDER SECTIONS 6 AND 7
HAVE BEEN SATISFIED OR WAIVED BY THE COMPANY OR THE STANDBY PURCHASERS (AS
APPLICABLE), OR AT SUCH OTHER LOCATION OR ON SUCH OTHER DATE AS MAY BE MUTUALLY
AGREED BY THE COMPANY AND THE STANDBY PURCHASERS (THE DAY ON WHICH THE CLOSING
TAKES PLACE BEING THE "CLOSING DATE").
THE CLOSING SHALL BE DEEMED TO BE
EFFECTIVE AS OF 12:01 A.M. ON THE CLOSING DATE AND ALL DOCUMENTS AND INSTRUMENTS
WILL BE DEEMED TO HAVE BEEN DELIVERED SIMULTANEOUSLY AT SUCH TIME.
(B)
AT THE CLOSING, EACH STANDBY PURCHASER HEREBY AGREES, SEVERALLY,
BUT NOT JOINTLY, TO PAY THE COMPANY THE AGGREGATE SUBSCRIPTION PRICE FOR ITS
STANDBY PERCENTAGE OF THE STANDBY PURCHASE SHARES TO BE PURCHASED BY SUCH
STANDBY PURCHASER HEREUNDER (THE AGGREGATE OF SUCH PAYMENTS BY ALL OF THE
STANDBY PURCHASERS, THE "PURCHASE PRICE") BY WIRE TRANSFER OF IMMEDIATELY
AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED BY THE COMPANY AT LEAST THREE BUSINESS
DAYS PRIOR TO THE SCHEDULED CLOSING DATE.
(C)
AT THE CLOSING, UPON RECEIPT IN FULL OF THE AGGREGATE SUBSCRIPTION
PRICE FOR EACH STANDBY PURCHASER'S STANDBY PERCENTAGE OF THE STANDBY PURCHASE
SHARES TO BE PURCHASED BY EACH STANDBY PURCHASER HEREUNDER, THE COMPANY SHALL
DELIVER TO SUCH STANDBY PURCHASER (OR ITS DESIGNEES) STOCK CERTIFICATES OR
EVIDENCE OF BOOK-ENTRY RECORD OWNERSHIP REPRESENTING THE STANDBY PURCHASE SHARES
TO BE ISSUED BY THE COMPANY TO SUCH STANDBY PURCHASER PURSUANT TO THIS
AGREEMENT, FREE AND CLEAR OF ANY LIENS, EXCEPT LIENS CREATED BY OR OTHERWISE
RESULTING FROM ACTIONS BY SUCH STANDBY PURCHASER.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as