TRANSFERRED, IN WHOLE OR IN PART, BY THE INVESTOR TO
ANY AFFILIATE (AS DEFINED IN RULE 12B-2 UNDER THE EXCHANGE ACT) OF THE INVESTOR
OVER WHICH THE INVESTOR OR ANY OF ITS AFFILIATES EXERCISES INVESTMENT AUTHORITY,
INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO VOTING AND DISPOSITIVE RIGHTS;
PROVIDED, THAT ANY SUCH ASSIGNEE ASSUMES THE OBLIGATIONS OF THE INVESTOR
HEREUNDER AND AGREES IN WRITING TO BE BOUND BY THE TERMS OF THIS AGREEMENT IN
THE SAME MANNER AS THE INVESTOR.
NOTWITHSTANDING THE FOREGOING OR ANY OTHER
PROVISIONS HEREIN, NO SUCH ASSIGNMENT WILL RELIEVE THE INVESTOR OF ITS
OBLIGATIONS HEREUNDER IF SUCH ASSIGNEE FAILS TO PERFORM SUCH OBLIGATIONS. EXCEPT
AS PROVIDED IN THE SIXTH PARAGRAPH OF THIS AGREEMENT AND THE LAST SENTENCE OF
SECTION 2(A) WITH RESPECT TO ULTIMATE PURCHASERS, AND EXCEPT AS PROVIDED IN
SECTION 8 WITH RESPECT TO THE INDEMNIFIED PARTIES, THIS AGREEMENT (INCLUDING THE
DOCUMENTS AND INSTRUMENTS REFERRED TO IN THIS AGREEMENT) IS NOT INTENDED TO AND
DOES NOT CONFER UPON ANY PERSON OTHER THAN THE PARTIES HERETO ANY RIGHTS OR
REMEDIES UNDER THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THE INVESTOR MAY
DIRECT THE COMPANY, BY NOTICE GIVEN TO THE COMPANY AT LEAST ONE BUSINESS DAY
PRIOR TO THE CLOSING
32
Date, to deliver the number of ECA Shares to be purchased by an Ultimate
Purchaser to such Ultimate Purchaser, in which case payment for such ECA Shares
will be made directly to the Company by such Ultimate Purchaser; provided that
in no such case shall the Investor be relieved of its obligation to pay for such
ECA Shares in the event the Ultimate Purchaser does not so pay, and no Ultimate
Purchaser shall obtain any rights of the Investor under this Agreement.
Notwithstanding the foregoing or any other provisions hereof, the Investor may
not assign any of its rights or obligations under this Agreement to the extent
such assignment would violate applicable securities laws.
13.
PRIOR NEGOTIATIONS; ENTIRE AGREEMENT.
THIS AGREEMENT (INCLUDING
THE EXHIBITS HERETO AND THE DOCUMENTS AND INSTRUMENTS REFERRED TO IN THIS
AGREEMENT) CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDES ALL
PRIOR AGREEMENTS, ARRANGEMENTS OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXCEPT
THAT THE PARTIES HERETO ACKNOWLEDGE THAT ANY CONFIDENTIALITY AGREEMENTS
HERETOFORE EXECUTED AMONG THE PARTIES WILL CONTINUE IN FULL FORCE AND EFFECT.
14.
GOVERNING LAW; VENUE.
THIS AGREEMENT WILL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE
INVESTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF, AND VENUE IN, THE
UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND WAIVES
ANY OBJECTION BASED ON FORUM NON CONVENIENS.
15.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, ALL OF WHICH WILL BE CONSIDERED ONE AND THE SAME AGREEMENT AND
WILL BECOME EFFECTIVE WHEN COUNTERPARTS HAVE BEEN SIGNED BY EACH OF THE PARTIES
AND DELIVERED TO THE OTHER PARTY (INCLUDING VIA FACSIMILE OR OTHER ELECTRONIC
TRANSMISSION), IT BEING UNDERSTOOD THAT EACH