under the Company's trading
policies then in effect is not open any time during such period.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
"Shelf Registration Statement" has the meaning set forth in Section 10(a)(ii).
"Stockholder Approval" has the meaning set forth in Section 9(e) hereof.
"Taxes" means all taxes, charges, levies, penalties or other assessments imposed
by any United States federal, state, local or foreign taxing authority,
including any income, excise, property, sales, transfer, franchise, payroll,
withholding, social security or other taxes, together with any interest or
penalties attributable thereto, and any payments made or owing to any other
Person measured by such taxes, charges, levies, penalties or other assessment,
whether pursuant to a tax indemnity agreement, tax sharing payment or otherwise
(other than pursuant to commercial agreements or Benefit Plans).
"Tax Return" means any return, report, information return or other document
(including any related or supporting information) required to be filed with any
taxing authority with respect to Taxes, any claims for refunds of Taxes and any
amendments or supplements to any of the foregoing.
"Termination Date" has the meaning set forth in Section 6(k) hereof.
"Voting Debt" has the meaning set forth in Section 3(c) hereof.
SECTION 2.
PURCHASE; CLOSINGS.
(A)
PURCHASE.
ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH
HEREIN, EACH INVESTOR HEREBY SEVERALLY AGREES, AT THE CLOSING, TO PURCHASE FROM
THE COMPANY, AND THE COMPANY HEREBY AGREES TO SELL TO SUCH INVESTOR, THE NUMBER
OF SHARES OF CONVERTIBLE PREFERRED STOCK SET FORTH NEXT TO SUCH INVESTOR'S NAME
ON ANNEX A FOR AN AGGREGATE PURCHASE PRICE SET FORTH NEXT TO SUCH INVESTOR'S
NAME ON ANNEX A (WITH RESPECT TO EACH INVESTOR, THE "PURCHASE PRICE").
(B)
CLOSING.
SUBJECT TO THE SATISFACTION OR WAIVER OF THE CONDITIONS
SET FORTH IN SECTION 7 HEREOF, THE CLOSING OF THE PURCHASE OF THE SHARES OF
CONVERTIBLE PREFERRED STOCK HEREUNDER (THE "CLOSING") SHALL OCCUR AT THE LOS
ANGELES OFFICES OF SULLIVAN & CROMWELL LLP AT 9:00 A.M., PACIFIC TIME, ON THE
FIRST BUSINESS DAY FOLLOWING THE DAY ON WHICH THE CONDITIONS TO CLOSING SET
FORTH IN SECTION 7 HEREOF (OTHER THAN THOSE CONDITIONS THAT BY THEIR NATURE ARE
TO BE SATISFIED AT THE CLOSING, BUT SUBJECT TO THE FULFILLMENT OR WAIVER OF
THOSE CONDITIONS) SHALL BE SATISFIED OR WAIVED IN ACCORDANCE WITH THIS AGREEMENT
(THE "CLOSING DATE").
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
EXCEPT
AS PREVIOUSLY DISCLOSED OR AS SET FORTH IN THE CORRESPONDING SECTIONS OR
SUBSECTIONS OF THE DISCLOSURE SCHEDULE DELIVERED TO THE INVESTORS BY THE COMPANY
PRIOR TO ENTERING INTO THIS AGREEMENT OR, WITH RESPECT TO ANY ADDITIONAL
INVESTOR, PRIOR TO SUCH INVESTOR'S ENTERING INTO A JOINDER (THE "DISCLOSURE
6
SCHEDULE"), THE COMPANY REPRESENTS AND WARRANTS TO EACH INVESTOR AS OF THE DATE
HEREOF AS FOLLOWS:
(A)
ORGANIZATION AND AUTHORITY.
THE COMPANY IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE, AND EACH