agency succeeding to its functions of reporting prices), or (iv)
in the event that the Common Stock is not listed or quoted as set forth in (i),
(ii) and (iii) hereof, then Trading Day shall mean a Business Day.
5
"Trading Market" means whichever of the New York Stock Exchange, the American
Stock Exchange, the NASDAQ National Market, the NASDAQ SmallCap Market, OTC
Bulletin Board, or "pink sheets" on which the Common Stock is listed or quoted
for trading on the date in question.
"Transaction Documents" means this Agreement, the Registration Rights Agreement,
the Warrants and any other documents or agreements executed in connection with
the transactions contemplated hereunder.
"Underlying Shares" means the shares of Common Stock issuable upon conversion of
the Preferred Shares.
"Warrants" means the Common Stock purchase warrant in the form of Exhibit D
which is issuable to each Investor at the Closing.
"Warrant Shares" means the shares of Common Stock issuable upon exercise of the
Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1
CLOSING.
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS
AGREEMENT, AT THE CLOSING THE COMPANY SHALL ISSUE AND SELL TO EACH INVESTOR, AND
EACH INVESTOR SHALL, SEVERALLY AND NOT JOINTLY, PURCHASE FROM THE COMPANY, THE
NUMBER OF PREFERRED SHARES SET FORTH OPPOSITE EACH PURCHASER'S NAME ON EXHIBIT A
HERETO AT A PURCHASE PRICE OF $3.00 PER SHARE.
IN CONSIDERATION OF SUCH
PURCHASE, EACH PURCHASER SHALL ALSO RECEIVE A WARRANT TO PURCHASE THE NUMBER OF
SHARES SET FORTH OPPOSITE SUCH PURCHASER'S NAME ON EXHIBIT A HERETO.
THE
CLOSING SHALL TAKE PLACE AT THE OFFICES OF FOLEY HOAG LLP, COUNSEL FOR THE
INVESTOR, WORLD TRADE CENTER WEST, BOSTON, MA 02216 ON THE CLOSING DATE OR AT
SUCH OTHER LOCATION OR TIME AS THE PARTIES MAY AGREE.
2.2
CLOSING DELIVERIES.
(A)
AT THE CLOSING, THE COMPANY SHALL
DELIVER OR CAUSE TO BE DELIVERED TO EACH INVESTOR THE FOLLOWING (THE "COMPANY
DELIVERABLES"):
(I)
A CERTIFIED COPY OF THE ARTICLES OF AMENDMENT AUTHORIZING
THE PREFERRED SHARES IN THE FORM OF EXHIBIT B HERETO (THE "ARTICLES OF
AMENDMENT") FILED WITH THE UTAH DEPARTMENT OF COMMERCE, DIVISION OF CORPORATIONS
AND COMMERCIAL CODE;
(II)
A CERTIFICATE FOR THE PREFERRED SHARES REGISTERED IN THE
NAME OF THE INVESTOR;
(III)
A WARRANT REGISTERED IN THE NAME OF THE INVESTOR;
(IV)
THE LEGAL OPINION OF COMPANY COUNSEL, IN AGREED FORM,
ADDRESSED TO THE INVESTORS;
6
(V)
THE REGISTRATION RIGHTS AGREEMENT, DULY EXECUTED BY THE
COMPANY; AND
(VI)
ANY OTHER DOCUMENTS REASONABLY REQUESTED BY SUCH INVESTOR.
(B)
AT THE CLOSING, EACH INVESTOR SHALL DELIVER OR CAUSE TO BE
DELIVERED TO THE COMPANY THE FOLLOWING (THE "INVESTOR DELIVERABLES"):
(I)
THE PURCHASE PRICE FOR ITS SECURITIES IN UNITED STATES
DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN ACCOUNT
DESIGNATED IN WRITING BY THE COMPANY FOR SUCH PURPOSE; AND
(II)
THE REGISTRATION RIGHTS AGREEMENT, DULY EXECUTED BY THE
INVESTOR.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY
HEREBY MAKES THE FOLLOWING REPRESENTATIONS AND WARRANTIES TO EACH