interests thereof.
"Trading Day" means (i) a day on which the Common Stock is traded on a Trading
Market, or (ii) if the Common Stock is not listed on a Trading Market, a day on
which the Common Stock is traded on the over-the-counter market, as reported by
the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on the OTC
Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding its functions of
reporting prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
3
"Trading Market" means the following markets or exchanges on which the Common
Stock is listed or quoted for trading on the date in question: the American
Stock Exchange, the New York Stock Exchange, the Nasdaq Global Market or the
Nasdaq Capital Market.
"Transaction Documents" means this Agreement and the Warrants and any other
documents or agreements executed in connection with the transactions
contemplated hereunder.
"Warrants" means the Common Stock Purchase Warrants, in the form of Exhibit A,
issuable to the Purchasers at the Closing, which warrants shall have an exercise
price equal to $2.00 per share and shall be exercisable for a period of 5 years.
"Warrant Shares" means the shares of Common Stock issuable upon exercise of the
Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 PURCHASE OF COMMON STOCK.
(A) AT THE CLOSING, EACH PURCHASER SHALL PURCHASE FROM THE COMPANY, SEVERALLY
AND NOT JOINTLY, AND THE COMPANY SHALL ISSUE AND SELL TO EACH PURCHASER, (A) A
NUMBER OF SHARES EQUAL TO SUCH PURCHASER'S SUBSCRIPTION AMOUNT DIVIDED BY THE
PER SHARE PURCHASE PRICE AND (B) THE WARRANTS, REGISTERED IN THE NAME OF EACH
PURCHASER, PURSUANT TO WHICH SUCH PURCHASER SHALL HAVE THE RIGHT TO ACQUIRE UP
TO THE NUMBER OF SHARES OF COMMON STOCK EQUAL TO 10% OF THE SHARES TO BE ISSUED
TO SUCH PURCHASER AT THE CLOSING.
THE AGGREGATE NUMBER OF SHARES SOLD HEREUNDER
(WHEN AGGREGATED WITH THE AGGREGATE NUMBER OF WARRANT SHARES) SHALL, IN NO
EVENT, EXCEED FIVE HUNDRED FIFTY THOUSAND (550,000) SHARES.
THE OFFERING AND
SALE OF THE SHARES (THE "OFFERING") ARE BEING MADE PURSUANT TO (1) AN EFFECTIVE
REGISTRATION STATEMENT ON FORM S-3 (INCLUDING THE PROSPECTUS CONTAINED THEREIN
(THE "BASE PROSPECTUS") AND (2) A PROSPECTUS SUPPLEMENT (THE "PROSPECTUS
SUPPLEMENT" AND TOGETHER WITH THE BASE PROSPECTUS, THE "PROSPECTUS") CONTAINING
CERTAIN SUPPLEMENTAL INFORMATION REGARDING THE SHARES AND TERMS OF THE OFFERING
THAT WILL BE FILED WITH THE COMMISSION AND DELIVERED TO THE PURCHASER (OR MADE
AVAILABLE TO THE PURCHASER BY THE FILING BY THE COMPANY OF AN ELECTRONIC VERSION
THEREOF WITH THE COMMISSION).
(B) UPON SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 2.2, (I) EACH
PURCHASER SHALL DELIVER TO THE COMPANY SUCH PURCHASER'S SUBSCRIPTION AMOUNT BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN