be deemed to be a Subsidiary of the Company.
"Tax Return" shall have the meaning set forth in Section 3.11(a).
"Taxes" shall mean all U.S. federal, state, local and foreign income, gross
income, corporation, advance corporation, gross receipts, estimated, import,
customs, duties, transfer, excise, property, sales, use, value-added, license,
payroll, pay as you earn, withholding, social security and franchise or other
governmental taxes, imposed by any Governmental Body and any interest, penalties
or additions to tax with respect thereto.
"Transaction Documents" shall mean this Agreement, the schedules and exhibits
hereto, the Certificate of Designations, the Series B-1 Shares, the Registration
Rights Agreement, the Investors' Rights Agreement, and any certificate or other
document delivered by or on behalf of the Company or the Investors pursuant to
this Agreement or in connection with the transactions contemplated by this
Agreement.
"Unaudited Financial Statements" shall have the meaning specified in Section
3.07.
SECTION 1.02.
RULES OF CONSTRUCTION.
UNLESS THE
CONTEXT OTHERWISE REQUIRES:
(A)
AN ACCOUNTING TERM DEFINED BY GAAP THAT IS
NOT OTHERWISE DEFINED HEREIN HAS THE MEANING ASSIGNED TO IT IN ACCORDANCE WITH
GAAP;
(B)
"OR" IS NOT EXCLUSIVE;
(C)
WORDS IN THE SINGULAR INCLUDE THE PLURAL,
AND WORDS IN THE PLURAL INCLUDE THE SINGULAR;
(D)
THE WORDS "INCLUDE" AND "INCLUDING" SHALL BE
DEEMED TO MEAN "INCLUDE, WITHOUT LIMITATION," AND "INCLUDING, WITHOUT
LIMITATION";
6
(E)
"HEREIN," "HEREOF," "HERETO," "HEREUNDER"
AND OTHER WORDS OF SIMILAR IMPORT REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO
ANY PARTICULAR ARTICLE, SECTION, PARAGRAPH OR CLAUSE WHERE SUCH TERMS MAY
APPEAR;
(F)
REFERENCES TO SECTIONS MEAN REFERENCES TO
SUCH SECTION IN THIS AGREEMENT, UNLESS STATED OTHERWISE; AND
(G)
THE USE OF ANY GENDER SHALL BE APPLICABLE TO
ALL GENDERS.
ARTICLE II
ISSUANCE, SALE AND PURCHASE OF THE SERIES B-1 STOCK
SECTION 2.01.
SALE AND PURCHASE OF THE SERIES B-1
STOCK.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THIS AGREEMENT, THE
COMPANY WILL SELL TO THE INITIAL PURCHASER, AND THE INITIAL PURCHASER WILL
PURCHASE FROM THE COMPANY, AN AGGREGATE OF 3,640,000 SHARES OF THE SERIES B-1
STOCK (THE "SERIES B-1 SHARES") FOR AN AGGREGATE PURCHASE PRICE OF $90,750,000
(THE "INITIAL PURCHASE PRICE").
THE COMPANY WILL THEN CAUSE THE INITIAL
PURCHASER TO IMMEDIATELY SELL THE SHARES TO THE INVESTORS, AND THE INVESTORS
WILL SEVERALLY PURCHASE FROM THE INITIAL PURCHASER, AN AGGREGATE OF 3,640,000
SHARES OF THE SERIES B-1 SHARES FOR AN AGGREGATE PURCHASE PRICE OF $91,000,000]
(THE "PURCHASE PRICE").
THE NUMBER OF SERIES B-1 SHARES TO BE PURCHASED BY EACH
INVESTOR AT THE CLOSING AND THE PORTION OF THE AGGREGATE PURCHASE PRICE TO BE
PAID BY EACH INVESTOR AT THE CLOSING IN THE EXCHANGE THEREFOR, SHALL BE AS
SPECIFIED IN SCHEDULE 2.01 (WITH RESPECT TO EACH SUCH INVESTOR, SUCH INVESTOR'S
"SPECIFIED PURCHASE PRICE").
SECTION 2.02.
CLOSING.
(A)
SUBJECT TO THE SATISFACTION OR WAIVER OF
THE CONDITIONS SET FORTH IN THIS AGREEMENT, THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED BY SECTION 2.01 (THE "CLOSING") SHALL TAKE PLACE AT 10:00 AM ON
FEBRUARY 28, 2005, OR AT SUCH OTHER