PROVIDE
TO THE INVESTOR AND ITS COUNSEL A COPY OF A DRAFT OF THE CONFIRMATION ORDER AND
A REASONABLE OPPORTUNITY TO REVIEW AND COMMENT ON SUCH DRAFT PRIOR TO SUCH ORDER
BEING FILED WITH THE BANKRUPTCY COURT.
(C)
RIGHTS OFFERING.
TO EFFECTUATE THE RIGHTS OFFERING AS PROVIDED
HEREIN AND TO USE COMMERCIALLY REASONABLE EFFORTS TO SEEK ENTRY OF AN ORDER OF
THE BANKRUPTCY COURT, PRIOR TO THE COMMENCEMENT OF THE RIGHTS OFFERING,
AUTHORIZING THE COMPANY TO CONDUCT THE RIGHTS OFFERING PURSUANT TO THE
SECURITIES EXEMPTION PROVISIONS SET FORTH IN SECTION 1145(A) OF THE BANKRUPTCY
CODE.
(D)
LISTING.
TO USE COMMERCIALLY REASONABLE EFFORTS TO LIST AND
MAINTAIN THE LISTING OF THE NEW COMMON STOCK (AND ANY APPLICABLE ASSOCIATED
SHARE PURCHASE RIGHTS) ON THE NYSE OR THE QUOTATION OF THE NEW COMMON STOCK (AND
ANY APPLICABLE ASSOCIATED SHARE PURCHASE RIGHTS) ON NASDAQ.
(E)
NOTIFICATION.
TO NOTIFY, OR TO CAUSE THE SUBSCRIPTION AGENT TO
NOTIFY, ON EACH FRIDAY DURING THE RIGHTS EXERCISE PERIOD AND ON EACH BUSINESS
DAY DURING THE
19
FIVE (5) BUSINESS DAYS PRIOR TO THE EXPIRATION TIME (AND ANY EXTENSIONS
THERETO), OR MORE FREQUENTLY IF REASONABLY REQUESTED BY THE INVESTOR, THE
INVESTOR OF THE AGGREGATE NUMBER OF RIGHTS KNOWN BY THE COMPANY OR THE
SUBSCRIPTION AGENT TO HAVE BEEN EXERCISED PURSUANT TO THE RIGHTS OFFERING AS OF
THE CLOSE OF BUSINESS ON THE PRECEDING BUSINESS DAY OR THE MOST RECENT
PRACTICABLE TIME BEFORE SUCH REQUEST, AS THE CASE MAY BE.
(F)
UNSUBSCRIBED SHARES.
TO DETERMINE THE NUMBER OF UNSUBSCRIBED
SHARES, IF ANY, IN GOOD FAITH, AND TO PROVIDE A PURCHASE NOTICE OR A
SATISFACTION NOTICE THAT ACCURATELY REFLECTS THE NUMBER OF UNSUBSCRIBED SHARES
AS SO DETERMINED AND TO PROVIDE TO THE INVESTOR A CERTIFICATION BY THE
SUBSCRIPTION AGENT OF THE UNSUBSCRIBED SHARES OR, IF SUCH CERTIFICATION IS NOT
AVAILABLE, SUCH WRITTEN BACKUP TO THE DETERMINATION OF THE UNSUBSCRIBED SHARES
AS INVESTOR MAY REASONABLY REQUEST.
(G)
STOCK SPLITS, DIVIDENDS, ETC.
IN THE EVENT OF ANY STOCK SPLIT,
STOCK DIVIDEND, STOCK COMBINATION OR SIMILAR TRANSACTION AFFECTING THE NUMBER OF
ISSUED AND OUTSTANDING SHARES OF NEW COMMON STOCK, THE PURCHASE PRICE AND THE
NUMBER OF ECA SHARES TO BE PURCHASED HEREUNDER WILL BE PROPORTIONALLY ADJUSTED
TO REFLECT THE INCREASE OR DECREASE IN THE NUMBER OF ISSUED AND OUTSTANDING
SHARES OF NEW COMMON STOCK.
(H)
HSR.
TO PROMPTLY PREPARE AND FILE ALL NECESSARY DOCUMENTATION AND
TO EFFECT ALL APPLICATIONS THAT ARE NECESSARY OR ADVISABLE UNDER THE HSR ACT SO
THAT THE APPLICABLE WAITING PERIOD SHALL HAVE EXPIRED OR BEEN TERMINATED
THEREUNDER WITH RESPECT TO THE PURCHASE OF ECA SHARES HEREUNDER, AND NOT TO TAKE
ANY ACTION THAT IS INTENDED OR REASONABLY LIKELY TO MATERIALLY IMPEDE OR DELAY
THE ABILITY OF THE PARTIES TO OBTAIN ANY NECESSARY APPROVALS REQUIRED FOR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(I)
EFFECTIVENESS OF THE REGISTRATION STATEMENT.
TO PREPARE AND
FILE, IN COOPERATION WITH THE INVESTOR, A SHELF REGISTRATION STATEMENT (THE
"REGISTRATION STATEMENT") COVERING RESALES OF NEW COMMON STOCK HELD BY THE
INVESTOR AND THE ULTIMATE PURCHASERS AS SOON