COMPANY'S COMMON STOCK (THE "SHARES") AT A CASH PRICE
PER SHARE EQUAL TO $10.00 (THE "PER SHARE PURCHASE PRICE") FOR AN AGGREGATE
PURCHASE PRICE EQUAL TO $40,000,000.
1.2
AUTHORIZATION. THE COMPANY WILL, PRIOR TO THE
CLOSING, AUTHORIZE THE SALE AND ISSUANCE OF THE SHARES PURSUANT TO THE TERMS OF
THIS AGREEMENT.
SECTION 2
CLOSING DATE; DELIVERY
2.1
CLOSING. THE PURCHASE AND SALE OF THE SHARES
SHALL TAKE PLACE AT A CLOSING (THE "CLOSING") TO BE HELD AT THE OFFICES OF
WILSON SONSINI GOODRICH & ROSATI, 650 PAGE MILL ROAD, PALO ALTO, CALIFORNIA, AT
10:00 A.M. LOCAL TIME, ON A DATE MUTUALLY AGREED UPON BY THE PARTIES TO THIS
AGREEMENT,
WHICH SHALL BE NO LATER THAN THE SECOND BUSINESS DAY AFTER THE SATISFACTION OR
WAIVER OF THE CONDITIONS TO THE OBLIGATIONS OF THE PARTIES SET FORTH IN
SECTION 6.1 AND SECTION 6.2 OF THIS AGREEMENT (THE "CLOSING DATE").
2.2
DELIVERY. AT THE CLOSING, THE COMPANY WILL
DELIVER TO THE PURCHASER A CERTIFICATE OR CERTIFICATES, REGISTERED IN THE NAME
OF THE PURCHASER, REPRESENTING THE 4,000,000 SHARES AGAINST PAYMENT OF THE
AGGREGATE PURCHASE PRICE OF $40,000,000 (THE "AGGREGATE PURCHASE PRICE") BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED BY THE COMPANY.
THE CERTIFICATE OR CERTIFICATES REPRESENTING THE SHARES SHALL BE SUBJECT TO
LEGENDS RESTRICTING TRANSFER AS SET FORTH IN THE INVESTOR RIGHTS AGREEMENT OF
EVEN DATE HEREWITH SUBSTANTIALLY IN THE FORM OF EXHIBIT B (THE "RIGHTS
AGREEMENT").
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the Company SEC Filings (as defined in Section 3.4) or as
set forth in the disclosure schedule delivered to the Purchaser on the date
hereof (the "Disclosure Schedule"), the Company represents and warrants to the
Purchaser as follows:
3.1
ORGANIZATION; STANDING AND POWER;
QUALIFICATION. EACH OF THE COMPANY AND ITS SUBSIDIARIES (AS DEFINED BELOW) IS A
CORPORATION DULY ORGANIZED AND VALIDLY EXISTING UNDER, AND BY VIRTUE OF, THE
LAWS OF ITS PLACE OF INCORPORATION AND IS IN GOOD STANDING UNDER SUCH LAWS. THE
COMPANY AND EACH OF ITS SUBSIDIARIES HAS ALL REQUISITE CORPORATE POWER TO OWN,
LEASE AND OPERATE ITS PROPERTY AND TO CARRY ON ITS BUSINESSES AS PRESENTLY
CONDUCTED, AND IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING AS A
FOREIGN CORPORATION IN ANY JURISDICTION, EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED AND IN GOOD STANDING WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE
BUSINESS, ASSETS (INCLUDING INTANGIBLE ASSETS), PROPERTIES, LIABILITIES
(CONTINGENT OR OTHERWISE), FINANCIAL CONDITION, OPERATIONS, OR RESULTS OF
OPERATION OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE (A "MATERIAL
ADVERSE EFFECT"). THE COMPANY HAS NO "SUBSIDIARIES" (AS DEFINED IN RULE 405
UNDER THE SECURITIES ACT), OTHER THAN AS SET FORTH IN THE DISCLOSURE
SCHEDULE (EACH, A "SUBSIDIARY" AND, TOGETHER, THE "SUBSIDIARIES"). EXCEPT FOR
THE COMPANY'S EUROPEAN SUBSIDIARY, WHICH IS 95% OWNED BY THE COMPANY, THE
COMPANY'S REMAINING SUBSIDIARY IS WHOLLY-OWNED BY THE COMPANY.
3.2
CAPITALIZATION. THE AUTHORIZED CAPITAL STOCK
OF THE COMPANY CONSISTS OF 150,000,000 SHARES OF COMMON STOCK, $0.001