OR PROSPECTUS, INCLUDING PRE- AND
POST-EFFECTIVE AMENDMENTS, ALL EXHIBITS THERETO, AND ALL MATERIAL INCORPORATED
BY REFERENCE OR DEEMED TO BE INCORPORATED BY REFERENCE IN SUCH REGISTRATION
STATEMENT.
1.12
"SEC" MEANS THE SECURITIES AND EXCHANGE COMMISSION.
1.13
"SECOND CLOSING DATE" MEANS THE DATE OF THE SECOND CLOSING.
1.14
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED, AND ALL
OF THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
1.15
"TRADING MARKET" MEANS THE NASDAQ GLOBAL SELECT MARKET OR ANY OTHER
NATIONAL SECURITIES EXCHANGE, MARKET OR TRADING OR QUOTATION FACILITY ON WHICH
THE COMMON STOCK IS THEN LISTED OR QUOTED.
1.16
"13D GROUP" MEANS ANY GROUP OF PERSONS FORMED FOR THE PURPOSE OF
ACQUIRING, HOLDING, VOTING OR DISPOSING OF VOTING SECURITIES WHICH WOULD BE
REQUIRED UNDER SECTION 13(D) OF THE EXCHANGE ACT, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER, TO FILE A STATEMENT ON SCHEDULE 13D PURSUANT TO
RULE 13D-1(A) OR A SCHEDULE 13G PURSUANT TO RULE 13D-1(C) WITH THE SEC AS A
"PERSON" WITHIN THE MEANING OF SECTION 13(D)(3) OF THE EXCHANGE ACT IF SUCH
GROUP BENEFICIALLY OWNED VOTING SECURITIES OF THE COMPANY REPRESENTING MORE THAN
5% OF ANY CLASS OF VOTING SECURITIES THEN OUTSTANDING.
2.
PURCHASE AND SALE OF SHARES.
2.1
PURCHASE AND SALE.
SUBJECT TO AND UPON THE TERMS AND CONDITIONS SET FORTH
IN THIS AGREEMENT, THE COMPANY AGREES TO ISSUE AND SELL THE SHARES TO THE
PURCHASER AT THE CLOSINGS.
THE SHARES ARE BEING ISSUED TO THE PURCHASER IN
CONSIDERATION OF PURCHASER'S OBLIGATIONS UNDER THE SETTLEMENT AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY.
THEREFORE, NO PAYMENT OF CASH OR OTHER FORM
OF CONSIDERATION IS OWING BY THE PURCHASER AT THE CLOSINGS (AS DEFINED BELOW).
2.2
CLOSING. THE CLOSINGS OF THE TRANSACTIONS CONTEMPLATED UNDER THIS
AGREEMENT (THE "CLOSINGS") SHALL TAKE PLACE AT THE OFFICES OF WILSON SONSINI
GOODRICH & ROSATI, 650 PAGE MILL ROAD, PALO ALTO, CALIFORNIA 94304-1050.
THE
FIRST CLOSING (THE "FIRST CLOSING") SHALL TAKE PLACE SIMULTANEOUSLY WITH THE
EXECUTION AND DELIVERY OF THIS AGREEMENT.
THE SECOND CLOSING (THE "SECOND
CLOSING") SHALL TAKE PLACE
ON THE SECOND BUSINESS DAY AFTER ALL OF THE
CONDITIONS PRECEDENT SET FORTH IN SECTION 5 HAVE BEEN SATISFIED IN FULL OR AT
SUCH OTHER LOCATION, DATE AND TIME AS MAY BE AGREED UPON BETWEEN THE PURCHASER
AND THE COMPANY. AT THE FIRST CLOSING, THE COMPANY SHALL DELIVER TO THE
PURCHASER A SINGLE STOCK CERTIFICATE, REGISTERED IN THE NAME OF THE PURCHASER,
REPRESENTING THE INITIAL SHARES.
AT THE SECOND CLOSING, THE COMPANY SHALL
DELIVER TO THE PURCHASER A SINGLE STOCK CERTIFICATE, REGISTERED IN THE NAME OF
THE PURCHASER, REPRESENTING THE SECOND CLOSING SHARES; PROVIDED, HOWEVER, THAT
IF THE HSR CLEARANCE CONDITION IS NOT MET BY
3
THE HSR OUTSIDE DATE, THE COMPANY SHALL (AT THE ELECTION OF THE PURCHASER
DELIVERED TO THE COMPANY IN WRITING) PAY TO THE PURCHASER THE MAKE-WHOLE HSR
CASH PAYMENT ON THE FIRST BUSINESS DAY IMMEDIATELY FOLLOWING SUCH DATE.
WILSON
SONSINI GOODRICH & ROSATI SHALL HOLD ANY SUCH STOCK CERTIFICATES IN ESCROW FOR
PURCHASER UNTIL DELIVERED TO PURCHASER OR ONE OF