PURCHASE PRICE.
ON
THE TERMS AND SUBJECT TO THE CONDITIONS OF THIS AGREEMENT (A) AT THE INITIAL
CLOSING, THE COMPANY SHALL ISSUE AND SELL TO ABRY, AND ABRY SHALL PURCHASE FROM
THE COMPANY, 5,000 SERIES D SHARES AND WARRANTS TO PURCHASE 333,333 SHARES OF
COMMON STOCK ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH HEREIN, FOR AN
AGGREGATE PURCHASE PRICE OF $5,000,000 (THE "INITIAL PURCHASE PRICE") AND (B) AT
THE SUBSEQUENT CLOSING, THE COMPANY SHALL ISSUE AND SELL TO THE SUBSEQUENT
PURCHASERS, AND THE SUBSEQUENT PURCHASERS SHALL PURCHASE FROM THE COMPANY, UP TO
AN AGGREGATE OF 1,000 SERIES D SHARES (THE "SUBSEQUENT D SHARES") AND WARRANTS
TO PURCHASE 66,667 SHARES OF COMMON STOCK (THE "SUBSEQUENT WARRANTS") ON THE
TERMS AND SUBJECT TO THE
11
CONDITIONS SET FORTH THEREIN, FOR THE SUBSEQUENT PURCHASE PRICE APPLICABLE TO
EACH SUCH SUBSEQUENT PURCHASER AS SET FORTH IN SECTION 3.3 HEREOF.
ARTICLE III
CLOSING; CLOSING DELIVERIES
3.1
INITIAL CLOSING.
(A)
INITIAL CLOSING.
THE INITIAL CLOSING OF THE TRANSACTIONS
CONTEMPLATED HEREBY (THE "INITIAL CLOSING") SHALL TAKE PLACE AT 10:00 A.M. ON
AUGUST 14, 2006, AT THE OFFICES OF KIRKLAND & ELLIS LLP, NEW YORK, NEW YORK OR
AT SUCH OTHER TIME, PLACE AND/OR DATE AS SHALL BE AGREED UPON BY THE PARTIES
HERETO.
THE DATE UPON WHICH THE INITIAL CLOSING OCCURS IS REFERRED TO HEREIN AS
THE "INITIAL CLOSING DATE."
(B)
PAYMENT FOR AND DELIVERY OF SERIES D SHARES AND WARRANTS.
AT THE
INITIAL CLOSING, THE COMPANY SHALL ISSUE AND DELIVER TO ABRY (I) A STOCK
CERTIFICATE DULY EXECUTED AND REGISTERED IN ABRY'S NAME EVIDENCING OWNERSHIP OF
THE SERIES D SHARES, AND (II) THE WARRANTS DESCRIBED IN SECTION 2.1 ABOVE, DULY
EXECUTED IN FAVOR OF ABRY AND SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT B
HERETO (TOGETHER WITH ANY COMMON STOCK PURCHASE WARRANT ISSUED IN SUBSTITUTION
OR EXCHANGE THEREOF, THE "WARRANTS"), IN EACH CASE AGAINST PAYMENT BY ABRY OF
THE INITIAL PURCHASE PRICE BY WIRE TRANSFER OF IMMEDIATELY-AVAILABLE FUNDS TO
THE ACCOUNT DESIGNATED BY THE COMPANY.
3.2
PURCHASE OPTION.
THE COMPANY HEREBY GRANTS TO CRP AN OPTION (THE
"PURCHASE OPTION") TO PURCHASE ALL OR A PORTION OF THE SUBSEQUENT D SHARES
TOGETHER WITH SUBSEQUENT WARRANTS TO PURCHASE 66 2/3 SHARES OF COMMON STOCK
(ROUNDED TO THE NEAREST WHOLE SHARES) FOR EACH SUBSEQUENT D SHARE PURCHASED, AT
A PRICE OF $1,000 PER SUBSEQUENT D SHARE.
THE PURCHASE OPTION SHALL BE
EXERCISABLE AT ANY TIME THAT IS ON OR PRIOR TO SEPTEMBER 4, 2006 AS FOLLOWS:
(A)
IF CRP DETERMINES THAT IT WOULD LIKE TO EXERCISE THE PURCHASE
OPTION, THEN CRP SHALL SEND A WRITTEN NOTICE TO THE COMPANY AND ABRY INDICATING
ITS INTEREST IN EXERCISING THE PURCHASE OPTION ("CRP EXERCISE NOTICE") AT ANY
TIME PRIOR TO SEPTEMBER 4, 2006.
THE CRP EXERCISE NOTICE SHALL INDICATE THE
NUMBER OF SUBSEQUENT D SHARES AND THE CORRESPONDING NUMBER OF WARRANTS TO BE
PURCHASED BY CRP.
(I)
IF CRP EXERCISES THE PURCHASE OPTION ON OR PRIOR TO SEPTEMBER 4,
2006 AND DELIVERS A CRP EXERCISE NOTICE THAT INDICATES