time as set forth herein (the "Purchasers"), on the other
hand.
Certain terms used and not otherwise defined in the text of this
Agreement are defined in Appendix A hereof.
W I T N E S S E T H
WHEREAS, the Company desires to issue and to sell to the Purchasers, and the
Purchasers desire to purchase from the Company, shares of a newly created series
of the Company's preferred stock, to be designated as Series A Convertible
Preferred Stock, par value $0.10 per share ("Series A Preferred Stock"),
convertible into shares of the Company's common stock, $0.10 par value per share
("Common Stock"), all in accordance with the terms and provisions of this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants herein contained, the parties hereto,
intending to be bound, hereby agree as follows:
1.
SALE AND PURCHASE OF PREFERRED STOCK.
1.1.
SALE AND PURCHASE; PURCHASE PRICE.
UPON THE TERMS AND SUBJECT TO
THE CONDITIONS HEREIN CONTAINED, THE COMPANY AGREES TO SELL TO EACH PURCHASER
AND, SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN, EACH PURCHASER
AGREES, SEVERALLY AND NOT JOINTLY, TO PURCHASE FROM THE COMPANY, THAT NUMBER OF
DULY AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE SHARES OF
SERIES A PREFERRED STOCK (EACH, A "SHARE" AND, COLLECTIVELY, THE "SHARES") SET
FORTH ON SCHEDULE I HERETO OPPOSITE SUCH PURCHASER'S NAME, AS SUCH SCHEDULE I
MAY BE AMENDED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 1.2 HEREOF.
THE PURCHASE PRICE PER SHARE SHALL BE $2,150.00, BEING THE
EQUIVALENT ON AN AS-IF-CONVERTED BASIS AS OF THE CLOSING DATE OF $2.15 PER SHARE
OF COMMON STOCK (THE "PURCHASE PRICE").
THE RIGHTS, PREFERENCES, PRIVILEGES AND
RESTRICTIONS OF SERIES A PREFERRED STOCK SHALL BE AS SET FORTH IN A CERTIFICATE
OF DESIGNATION, THE FORM OF WHICH SHALL BE AS SET FORTH AS EXHIBIT A HERETO (THE
"CERTIFICATE OF DESIGNATION").
1.2.
CLOSING.
A CLOSING OF THE TRANSACTIONS CONTEMPLATED HEREBY (THE
"CLOSING") SHALL TAKE PLACE ON SUCH DATE AND AT SUCH TIME AND PLACE AS SHALL BE
MUTUALLY ACCEPTABLE TO THE COMPANY AND THE PURCHASERS, IMMEDIATELY AFTER THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE SATISFACTION OR WAIVER OF THE
CONDITIONS SET FORTH IN SECTION 5 HEREOF.
AT THE CLOSING, (X) THE COMPANY SHALL
DELIVER TO EACH PURCHASER PARTICIPATING IN THE CLOSING CERTIFICATES REPRESENTING
THE NUMBER OF SHARES SET FORTH OPPOSITE SUCH PURCHASER'S NAME ON SCHEDULE I
HERETO AND (Y) EACH PURCHASER SHALL PAY, IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE
TRANSFER TO THE COMPANY'S ACCOUNT, NOTICE OF WHICH SHALL HAVE BEEN GIVEN TO THE
PURCHASERS NOT LESS THAN TWO (2) BUSINESS DAYS PRIOR TO THE CLOSING DATE, THE
AMOUNT SET FORTH ON SCHEDULE I HERETO OPPOSITE SUCH PURCHASER'S NAME,
REPRESENTING AN AGGREGATE INVESTMENT AMOUNT FOR ALL PURCHASERS OF $15,500,000
(THE " COMMITMENT AMOUNT").
THE DATE OF THE CLOSING IS REFERRED TO HEREIN AS
THE "CLOSING DATE".
2.
REQUIRED STOCKHOLDER APPROVAL AND
ISSUANCE AUTHORIZATION.
As soon as practicable, and in any event within