and the Collateral Account Notification and
Acknowledgement, dated as of the date hereof, by and among the Company, the
Buyers and Bank of America Securities LLC, as Cash Collateral Custodian (the
"Cash Collateral Custodian"), substantially in the form attached hereto as
Exhibit E (the "Cash Collateral Account Control Agreement");
G.
Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement, substantially in the form attached hereto as Exhibit F (the
"Registration Rights Agreement"), pursuant to which the Company has agreed to
provide certain registration rights with respect to the Conversion Shares and
the Interest Shares under the 1933 Act and the rules and regulations promulgated
thereunder, and applicable state securities laws; and
H.
The Notes, the Conversion Shares, the Interest Shares and the
Warrants collectively are referred to herein as the "Securities".
NOW, THEREFORE, the Company and each Buyer hereby agree as follows:
1.
PURCHASE AND SALE OF NOTES AND WARRANTS.
(A)
PURCHASE OF NOTES AND WARRANTS.
(I)
NOTES AND WARRANTS.
SUBJECT TO THE
SATISFACTION (OR WAIVER) OF THE CONDITIONS SET FORTH IN SECTIONS 6(A) AND 7(A)
BELOW, THE COMPANY SHALL ISSUE AND SELL TO EACH BUYER, AND EACH BUYER 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) ON THE SCHEDULE OF BUYERS, ALONG WITH WARRANTS TO
ACQUIRE THAT NUMBER OF WARRANT SHARES AS IS SET FORTH OPPOSITE SUCH BUYER'S NAME
IN COLUMN (4) ON THE SCHEDULE OF BUYERS.
(II)
CLOSING.
THE CLOSING (THE "CLOSING") OF
THE PURCHASE OF THE NOTES AND THE WARRANTS BY THE BUYERS SHALL OCCUR AT THE
OFFICES OF SCHULTE ROTH & ZABEL LLP, 919 THIRD AVENUE, NEW YORK, NEW YORK
10022.
THE DATE AND TIME OF THE CLOSING (THE "CLOSING DATE") SHALL BE 10:00
A.M., NEW YORK CITY TIME, ON THE DATE HEREOF, SUBJECT TO NOTIFICATION OF
SATISFACTION (OR WAIVER) OF THE CONDITIONS TO THE CLOSING SET FORTH IN SECTIONS
6(A) AND 7(A) BELOW (OR SUCH LATER DATE AS IS MUTUALLY AGREED TO BY THE COMPANY
AND EACH BUYER).
(III)
PURCHASE PRICE.
THE PURCHASE PRICE FOR EACH
BUYER (THE "PURCHASE PRICE") OF THE NOTES AND RELATED WARRANTS TO BE PURCHASED
BY EACH SUCH BUYER AT THE CLOSING SHALL BE EQUAL TO $1.00 FOR EACH $1.00 OF
PRINCIPAL AMOUNT OF NOTES BEING PURCHASED BY SUCH BUYER AT THE CLOSING.
(B)
FORM OF PAYMENT.
ON THE CLOSING DATE, (I)
EACH BUYER SHALL PAY HALF OF ITS AGGREGATE PURCHASE PRICE TO THE COMPANY FOR THE
NOTES AND THE WARRANTS TO BE ISSUED AND SOLD TO SUCH BUYER AT THE CLOSING AND
THE REMAINING HALF OF ITS PURCHASE PRICE TO THE CASH COLLATERAL CUSTODIAN, IN
BOTH CASES 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 (IN THE PRINCIPAL AMOUNTS AS SUCH BUYER SHALL HAVE
REQUESTED PRIOR