Shares and upon exercise of the Warrants (including the Warrants issuable
upon exercise of the Unit Warrants and Exchange Warrants (as defined in the Unit
Warrant)) and in satisfaction of any other obligation of the Company to issue
shares of Common Stock pursuant to the Transaction Documents.
"Underlying Shares Registration Statement" means a registration statement
meeting the requirements set forth in the Registration Rights Agreement and
covering the resale of the Underlying Shares by the Purchasers.
"Units" means, collectively, the Initial Units and the Additional Units.
"Unit Warrants" means the unit warrants, in the form of Exhibit F, to purchase
Additional Units.
"Volume Weighted Average Price" means, with respect to any particular Trading
Day or for any particular period, the volume weighted average trading price per
share of Common Stock on such Trading Day or for such period on an Eligible
Market as reported by Bloomberg, L.P., or any successor performing similar
functions.
8
"Warrants" means the Common Stock purchase warrants, in the form of Exhibit C,
including any Exchange Warrants (as defined in the Warrants).
ARTICLE II
PURCHASE AND SALE
2.1
SALE AND ISSUANCE OF INITIAL UNITS AND UNIT
WARRANTS AT CLOSING.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
EACH PURCHASER AGREES, SEVERALLY AND NOT JOINTLY, TO PURCHASE AT THE CLOSING AND
THE COMPANY AGREES TO SELL AND ISSUE TO EACH PURCHASER AT THE CLOSING, FOR THE
AGGREGATE PURCHASE PRICE SET FORTH OPPOSITE SUCH PURCHASER'S NAME ON SCHEDULE A
HERETO UNDER THE HEADING "PURCHASE PRICE":
(A)
THAT NUMBER OF INITIAL UNITS SET FORTH
OPPOSITE SUCH PURCHASER'S NAME ON SCHEDULE A HERETO UNDER THE HEADING "INITIAL
UNITS;" AND
(B)
A UNIT WARRANT EXERCISABLE FOR THAT NUMBER
OF ADDITIONAL UNITS SET FORTH OPPOSITE SUCH PURCHASER'S NAME ON SCHEDULE A
HERETO UNDER THE HEADING "ADDITIONAL UNITS."
2.2
CLOSING.
THE CLOSING OF THE PURCHASE AND
SALE OF THE INITIAL UNITS AND THE UNIT WARRANTS PURSUANT TO THE TERMS OF SECTION
2.1 (THE "CLOSING") SHALL TAKE PLACE AT THE OFFICES OF PROSKAUER ROSE LLP IN NEW
YORK, NEW YORK, AT 10:00 A.M. (NEW YORK CITY TIME) ON THE DATE EACH OF THE
CONDITIONS SET FORTH IN SECTIONS 2.3 HAVE BEEN SATISFIED, BUT IN NO EVENT LATER
THAN DECEMBER 31, 2003, OR AT SUCH OTHER TIME AND PLACE AS THE COMPANY AND THE
PURCHASERS MUTUALLY AGREE UPON IN WRITING (WHICH TIME AND PLACE ARE DESIGNATED
AS THE "CLOSING DATE").
2.3
CLOSING DELIVERIES.
(A)
AT THE CLOSING, THE COMPANY SHALL DELIVER
OR CAUSE TO BE DELIVERED TO EACH PURCHASER THE FOLLOWING:
(I)
ONE OR MORE STOCK CERTIFICATES
EVIDENCING THAT NUMBER OF SHARES OF SERIES B-1 PREFERRED STOCK CORRESPONDING TO
THE INITIAL UNITS PURCHASED BY SUCH PURCHASER AS INDICATED ON SCHEDULE A HERETO
UNDER THE HEADING "INITIAL UNITS -INITIAL SHARES", REGISTERED IN THE NAME OF
SUCH PURCHASER;
(II)
A WARRANT, REGISTERED IN THE NAME OF SUCH
PURCHASER, PURSUANT TO WHICH SUCH PURCHASER SHALL HAVE THE RIGHT TO ACQUIRE THAT
NUMBER OF SHARES OF COMMON STOCK CORRESPONDING TO NUMBER OF THE INITIAL UNITS
PURCHASED BY