a pledge and security agreement, in the form
attached hereto as Exhibit C (as amended or modified from time to time in
accordance with its terms, the "Pledge and Security Agreement", and, together
with any ancillary documents related thereto, collectively the "Security
Documents").
NOW, THEREFORE, the Company and each Buyer hereby agree as follows:
1.
PURCHASE AND SALE OF NOTES.
(A)
PURCHASE OF NOTES.
SUBJECT TO THE SATISFACTION (OR WAIVER) OF THE
CONDITIONS SET FORTH IN SECTIONS 6 AND 7 BELOW, IF APPLICABLE, AND IN CONNECTION
WITH THE NOTES TERMINATION EVENT UNDER SECTION 8 BELOW, THE COMPANY SHALL ISSUE
AND SELL TO EACH BUYER, AND EACH BUYER, WITH RESPECT TO THE FOLLOW-ON NOTES
ONLY, SEVERALLY, BUT NOT JOINTLY, AGREES TO PURCHASE FROM THE COMPANY ON THE
CLOSING DATE (AS DEFINED BELOW), A PRINCIPAL AMOUNT OF NOTES AS IS SET FORTH
OPPOSITE SUCH BUYER'S NAME IN COLUMN (3) OR IN COLUMN (4) ON THE SCHEDULE OF
BUYERS, AS APPLICABLE (THE "CLOSING").
(B)
CLOSING.
THE DATE AND TIME OF THE CLOSING (THE "CLOSING DATE") SHALL
BE 10:00 A.M., NEW YORK CITY TIME, TWO BUSINESS DAYS (OR SUCH LATER DATE AS IS
MUTUALLY AGREED TO BY THE COMPANY AND EACH BUYER) AFTER NOTIFICATION OF
SATISFACTION (OR WAIVER) OF THE CONDITIONS TO THE CLOSING SET FORTH IN SECTIONS
6 AND 7 BELOW AT THE OFFICES OF SCHULTE ROTH & ZABEL LLP, 919 THIRD AVENUE, NEW
YORK, NEW YORK 10022.
AS USED HEREIN, "BUSINESS DAY" MEANS ANY DAY OTHER THAN
SATURDAY, SUNDAY OR OTHER DAY ON WHICH COMMERCIAL BANKS IN THE CITY OF NEW YORK
ARE AUTHORIZED OR REQUIRED BY LAW TO REMAIN CLOSED.
(C)
PURCHASE PRICE.
THE AGGREGATE PURCHASE PRICE FOR THE FOLLOW-ON NOTES
TO BE PURCHASED BY EACH SUCH BUYER AT THE CLOSING (THE "PURCHASE PRICE") SHALL
BE THE AMOUNT SET FORTH OPPOSITE EACH BUYER'S NAME IN COLUMN (5) OF THE SCHEDULE
OF BUYERS.
EACH BUYER SHALL PAY $1,000 FOR EACH $1,000 OF PRINCIPAL AMOUNT OF
FOLLOW-ON NOTES TO BE PURCHASED BY SUCH BUYER AT THE CLOSING.
(D)
FORM OF PAYMENT.
ON THE CLOSING DATE, (I) EACH BUYER SHALL PAY ITS
PURCHASE PRICE TO THE COMPANY FOR THE FOLLOW-ON NOTES TO BE ISSUED AND SOLD TO
SUCH BUYER AT THE CLOSING, IF ANY, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE
FUNDS IN ACCORDANCE WITH THE COMPANY'S WRITTEN WIRE INSTRUCTIONS AND (II) THE
COMPANY SHALL DELIVER TO EACH BUYER THE NOTES (ALLOCATED IN THE PRINCIPAL
AMOUNTS AS SUCH BUYER SHALL REQUEST) WHICH SUCH BUYER IS THEN PURCHASING OR
RECEIVING HEREUNDER, DULY EXECUTED ON BEHALF OF THE COMPANY AND REGISTERED IN
THE NAME OF SUCH BUYER OR ITS DESIGNEE.
2.
BUYER'S REPRESENTATIONS AND WARRANTIES.
EACH BUYER, SEVERALLY
AND NOT JOINTLY, REPRESENTS AND WARRANTS WITH RESPECT TO ONLY ITSELF THAT:
(A)
NO PUBLIC SALE OR DISTRIBUTION.
SUCH BUYER IS (I) ACQUIRING THE
NOTES AND (II) UPON CONVERSION OF THE NOTES WILL ACQUIRE THE CONVERSION SHARES
ISSUABLE UPON CONVERSION OF
the Notes, for its own account and not with a view towards, or for resale in
connection