to purchase shares of Common Stock (the "Warrants"), as
described herein with respect to such Purchaser.
NOW, THEREFORE, in consideration of the premises, and of the representations,
warranties, covenants and agreements set forth herein, the parties agree as
follows:
ARTICLE I
PURCHASE; CLOSINGS
1.1
Purchase. On the terms and subject to the conditions set forth herein,
each Purchaser, severally and not jointly, agrees that it will purchase from the
Company, and the Company agrees that it will sell to each such Purchaser, the
number of Shares and Warrants set forth opposite such Purchaser's name on such
Purchaser's signature page to this Agreement.
1.2
Closing.
(A)
FOR EACH PURCHASER, SUBJECT TO THE SATISFACTION OR WAIVER OF THE
CONDITIONS SET FORTH IN THIS AGREEMENT WITH RESPECT TO THE PURCHASE AND SALE BY
SUCH PURCHASER, THE CLOSING OF THE PURCHASE AND SALE OF THE SHARES AND WARRANTS
PURSUANT HERETO (THE "CLOSING") SHALL OCCUR AT 9:30 A.M., NEW YORK TIME, ON
APRIL 11, 2008, OR ON SUCH LATER DATE AS THE COMPANY MAY BY WRITTEN NOTICE
SPECIFY TO SUCH PURCHASER, AT THE OFFICES OF SIMPSON THACHER & BARTLETT LLP
LOCATED AT 425 LEXINGTON AVENUE, NEW YORK, NEW YORK 10017 OR SUCH OTHER DATE OR
LOCATION AS AGREED BY THE PARTIES. THE DATE OF THE CLOSING IS REFERRED TO AS THE
"CLOSING DATE."
(B)
SUBJECT TO THE SATISFACTION OR WAIVER OF THE CONDITIONS TO THE CLOSING IN
SECTION 1.2(C), AT THE CLOSING, THE COMPANY WILL DELIVER TO EACH PURCHASER
(1) ONE STOCK CERTIFICATE REPRESENTING THE TOTAL NUMBER OF SHARES OF COMMON
STOCK; (2) ONE STOCK CERTIFICATE REPRESENTING THE TOTAL NUMBER OF SHARES OF
CONVERTIBLE PREFERRED STOCK; AND (3) A WARRANT TO PURCHASE A NUMBER OF SHARES OF
COMMON STOCK EQUAL TO (X) THE AGGREGATE AMOUNT PAYABLE IN RESPECT OF THE SHARES
SUBSCRIBED FOR AS SET FORTH ON SUCH PURCHASER'S SIGNATURE PAGE TO THIS AGREEMENT
DIVIDED BY (Y) $8.75 (THE "REFERENCE PURCHASE PRICE") DIVIDED BY (Z) EIGHT, AND
IN THE CASE OF EACH OF CLAUSES (1), (2) AND (3) OF THIS PARAGRAPH, REGISTERED IN
THE NAME OF SUCH PURCHASER OR SUCH OTHER PERSON (WHICH SHALL BE AN AFFILIATE OR
NOMINEE OF SUCH PURCHASER OR SUCH
1
AFFILIATE) AS SUCH PURCHASER MAY HAVE DESIGNATED IN WRITING TO THE COMPANY NOT
LESS THAN ONE BUSINESS DAY PRIOR TO THE CLOSING, AGAINST PAYMENT THEREFOR BY
WIRE TRANSFER BY SUCH PURCHASER OF IMMEDIATELY AVAILABLE UNITED STATES FUNDS TO
A BANK ACCOUNT DESIGNATED BY THE COMPANY, FOR AN AGGREGATE PURCHASE PRICE EQUAL
TO THE AMOUNT SET FORTH ON SUCH PURCHASER'S SIGNATURE PAGE TO THIS AGREEMENT.
(C)
CLOSING CONDITIONS.
(1)
THE RESPECTIVE OBLIGATIONS OF EACH PURCHASER ON THE ONE HAND, AND THE
COMPANY, ON THE OTHER HAND, TO CONSUMMATE THE CLOSING IS SUBJECT TO THE
FULFILLMENT OR WRITTEN WAIVER BY THE APPLICABLE PURCHASER AND THE COMPANY PRIOR
TO THE CLOSING OF THE FOLLOWING CONDITIONS:
(A)
NO PROVISION OF ANY APPLICABLE LAW OR REGULATION AND NO JUDGMENT,
INJUNCTION, ORDER OR DECREE SHALL PROHIBIT THE CLOSING;
(B)
THE SHARES OF COMMON STOCK TO