Agreement to each of the parties on behalf of
each of them.
1.3
SECURITIES ISSUED.
FOR PURPOSES HEREOF, "SHARES" OR "PREFERRED
STOCK" SHALL MEAN SHARES OF SERIES C PREFERRED STOCK ISSUED HEREUNDER (THE TERMS
OF WHICH WILL BE SET FORTH IN A CERTIFICATE OF DESIGNATIONS IN SUBSTANTIALLY THE
FORM ATTACHED HERETO AS EXHIBIT A, WHICH CERTIFICATE OF DESIGNATIONS SHALL BE
FILED BY THE COMPANY NOT LATER THAN TWO BUSINESS DAYS PRIOR TO THE CLOSING DATE)
(THE SHARES ARE ALSO SOMETIMES REFERRED TO HEREIN AS THE "SECURITIES"), AND THE
"APPLICABLE NUMBER OF SHARES" SHALL MEAN A NUMBER EQUAL TO THE QUOTIENT OBTAINED
BY DIVIDING (A) AGGREGATE PURCHASE PRICE (EXPRESSED IN U.S. DOLLARS) DIVIDED BY
THE PRODUCT OF 1.4 MULTIPLIED BY $0.17771
BY (B) 1,000, WITH THE RESULT ROUNDED
DOWN TO THE NEAREST WHOLE SHARE.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as specifically contemplated by this Agreement or as set forth in the SEC
Documents, the Company hereby represents and warrants to the Purchaser, as of
the date hereof and as of the Closing Date, that:
2.1
ORGANIZATION AND QUALIFICATION.
THE COMPANY IS DULY INCORPORATED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE,
WITH THE CORPORATE POWER AND AUTHORITY TO CONDUCT ITS BUSINESS AS CURRENTLY
CONDUCTED OR PROPOSED TO BE CONDUCTED AS DISCLOSED IN THE SEC DOCUMENTS.
THE
COMPANY IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING IN EVERY
JURISDICTION IN WHICH THE NATURE OF THE BUSINESS CONDUCTED BY IT OR PROPERTY
OWNED BY IT MAKES SUCH QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE
SO QUALIFIED OR IN GOOD STANDING, AS THE CASE MAY BE, WOULD NOT REASONABLY BE
EXPECTED TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A COMPANY MATERIAL ADVERSE
EFFECT.
2.2
AUTHORIZATION; ENFORCEMENT.
THE COMPANY HAS ALL REQUISITE CORPORATE
POWER AND AUTHORITY TO ENTER INTO AND TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT, TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND TO ISSUE THE
SECURITIES IN ACCORDANCE WITH THE TERMS HEREOF.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT BY THE COMPANY AND THE CONSUMMATION BY IT OF THE
TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING THE ISSUANCE OF THE SECURITIES) HAVE
BEEN DULY AUTHORIZED BY THE BOARD AND NO FURTHER CONSENT OR AUTHORIZATION OF THE
COMPANY, THE BOARD OR ITS STOCKHOLDERS IS REQUIRED.
THIS AGREEMENT HAS BEEN
DULY EXECUTED AND DELIVERED BY THE COMPANY AND CONSTITUTES A LEGAL, VALID AND
BINDING OBLIGATION OF THE COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE
WITH ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, OR MORATORIUM OR SIMILAR LAWS AFFECTING
CREDITORS' AND CONTRACTING PARTIES' RIGHTS GENERALLY AND EXCEPT AS
ENFORCEABILITY MAY BE SUBJECT TO GENERAL PRINCIPLES OF EQUITY.
2
2.3
CAPITALIZATION.
AS OF MAY 8, 2013, THE AUTHORIZED CAPITAL STOCK OF
THE COMPANY CONSISTS OF (A) 245,000,000 SHARES OF COMMON STOCK, OF WHICH
64,036,405 SHARES WERE ISSUED AND OUTSTANDING, (B) 170,000 SHARES OF SERIES A
JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK, PAR VALUE $.01 PER SHARE, NONE
OF