"Senior Secured Notes" has the meaning set forth in the Preamble.
"Shares" means shares of the Company's Common Stock.
"Significant Subsidiary" has the meaning assigned thereto in Rule 1-02(w) of
Regulation S-X and each Subsidiary that is party to the Guaranty and Security
Agreement.
"Subsidiary" means any Person in which the Company, directly or indirectly, owns
capital stock or holds an equity or similar interest.
"Trading Day" means (a) any day on which the Common Stock is listed or quoted
and traded on its primary Trading Market, (b) if the Common Stock is not then
listed or quoted and traded on any Eligible Market, then a day on which trading
occurs on the NASDAQ National Market
3
(or any successor thereto), or (c) if trading ceases to occur on the NASDAQ
National Market (or any successor thereto), any Business Day.
"Trading Market" means the Nasdaq National Market or any other Eligible Market,
or any national securities exchange, market or trading or quotation facility on
which the Common Stock is then listed or quoted.
"Transaction" means the transaction contemplated by the Transaction Documents.
"Transaction Documents" means this Agreement, the schedules and exhibits
attached hereto, the Convertible Notes, the Senior Secured Notes, the Warrants
and the Guaranty and Security Agreement.
"Warrant" has the meaning set forth in the Preamble.
"Warrant Shares" has the meaning set forth in the Preamble.
ARTICLE II
PURCHASE AND SALE
2.1
CLOSING.
(A)
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 5.1(A)
AND 5.2 HEREIN, AT THE CLOSING THE COMPANY SHALL ISSUE AND SELL TO EACH
INVESTOR, AND EACH INVESTOR SHALL, SEVERALLY AND NOT JOINTLY, PURCHASE FROM THE
COMPANY, SUCH NUMBER OF COMMON SHARES, CONVERTIBLE NOTES, SENIOR SECURED NOTES
AND WARRANTS SET FORTH OPPOSITE SUCH INVESTOR'S NAME ON EXHIBIT A HERETO UNDER
THE HEADINGS "COMMON SHARES", "CONVERTIBLE NOTES", "SENIOR SECURED NOTES" AND
"WARRANTS". THE DATE AND TIME OF THE CLOSING AND SHALL BE 10:00 A.M., NEW YORK
CITY TIME, ON THE CLOSING DATE. THE CLOSING SHALL TAKE PLACE AT THE OFFICES OF
COMPANY COUNSEL.
(B)
AT THE CLOSING, EACH INVESTOR SHALL DELIVER OR CAUSE TO BE
DELIVERED TO THE COMPANY THE PURCHASE PRICE SET FORTH OPPOSITE SUCH INVESTOR'S
NAME ON EXHIBIT A HERETO UNDER THE HEADING "PURCHASE PRICE" IN UNITED STATES
DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN ACCOUNT
DESIGNATED IN WRITING TO SUCH INVESTOR BY THE COMPANY FOR SUCH PURPOSE.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. THE COMPANY HEREBY
REPRESENTS AND WARRANTS TO EACH INVESTOR THAT, EXCEPT AS SET FORTH IN THE SEC
REPORTS (AS HEREINAFTER DEFINED) OR IN THE SCHEDULE OF EXCEPTIONS ATTACHED AS
EXHIBIT I TO THIS AGREEMENT, WHICH EXCEPTIONS SHALL BE DEEMED TO BE PART OF THE
REPRESENTATIONS AND WARRANTIES MADE HEREUNDER, THE FOLLOWING REPRESENTATIONS ARE
TRUE AND COMPLETE AS OF THE DATE HEREOF. THE SCHEDULE OF EXCEPTIONS SHALL BE
ARRANGED IN SECTIONS CORRESPONDING TO THE NUMBERED AND LETTERED SECTIONS AND
SUBSECTIONS CONTAINED IN THIS SECTION 3, AND THE DISCLOSURES IN