board of directors or other
managers of such corporation, partnership or other entity are at the time owned,
or the management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person.
SECTION 1.2
ACCOUNTING TERMS; FINANCIAL STATEMENTS.
UNLESS
OTHERWISE DEFINED OR SPECIFIED HEREIN, ALL ACCOUNTING TERMS USED IN THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH GAAP AS IN EFFECT ON THE DATE
HEREOF.
THE FINANCIAL STATEMENTS REQUIRED TO BE DELIVERED HEREUNDER FROM AND
AFTER THE CLOSING DATE, AND ALL FINANCIAL RECORDS, SHALL BE MAINTAINED IN
ACCORDANCE WITH GAAP AS IN EFFECT AT THE TIME OF DELIVERY.
SECTION 1.3
KNOWLEDGE OF THE PERSON.
ALL REFERENCES TO THE
KNOWLEDGE OF ANY PERSON OR TO FACTS KNOWN BY SUCH PERSON SHALL MEAN THE
KNOWLEDGE OR NOTICE OF THE RESPONSIBLE OFFICERS OF SUCH PERSON OR ANY OF ITS
SUBSIDIARIES.
SECTION 1.4
OTHER DEFINITIONAL PROVISIONS.
(A)
AS USED HEREIN AND IN ANY CERTIFICATE OR OTHER DOCUMENT MADE OR
DELIVERED PURSUANT HERETO OR THERETO, (I) THE WORDS "INCLUDE", "INCLUDES" AND
"INCLUDING" SHALL BE DEEMED TO BE FOLLOWED BY THE PHRASE "WITHOUT LIMITATION"
AND (II) THE WORDS "ASSET" AND "PROPERTY" SHALL BE CONSTRUED TO HAVE THE SAME
MEANING AND EFFECT AND TO REFER TO ANY AND ALL TANGIBLE AND INTANGIBLE ASSETS
AND PROPERTIES, INCLUDING CASH, CAPITAL STOCK, SECURITIES, REVENUES, ACCOUNTS,
LEASEHOLD INTERESTS AND CONTRACT RIGHTS.
(B)
THE WORDS "HEREOF", "HEREIN" AND "HEREUNDER" AND WORDS OF SIMILAR
IMPORT WHEN USED IN THIS AGREEMENT SHALL REFER TO THIS AGREEMENT AS A WHOLE AND
NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT, AND SECTION, SCHEDULE AND
EXHIBIT REFERENCES ARE TO THIS AGREEMENT UNLESS OTHERWISE SPECIFIED.
(C)
THE MEANINGS GIVEN TO TERMS DEFINED HEREIN SHALL BE EQUALLY
APPLICABLE TO BOTH THE SINGULAR AND PLURAL FORMS OF SUCH TERMS.
ARTICLE II.
PURCHASE AND SALE OF THE NOTES
SECTION 2.1
PURCHASE AND SALE.
(A)
SUBJECT TO THE TERMS AND CONDITIONS HEREIN SET FORTH, THE COMPANY
AGREES THAT IT WILL ISSUE AND SELL TO THE PURCHASER, AND THE PURCHASER AGREES
THAT IT WILL ACQUIRE FROM THE COMPANY, THE NOTES IN THE FORM ATTACHED HERETO AS
EXHIBIT 2.1(A).
(B)
THE NOTES SHALL BE SOLD BY THE COMPANY AND PURCHASED BY THE
PURCHASER INITIALLY ON APRIL 16, 2007 IN THE AGGREGATE PRINCIPAL AMOUNT OF
$750,000 IN NOTES, AN ADDITIONAL AGGREGATE PRINCIPAL AMOUNT OF $500,000 IN NOTES
ON JULY 9, 2007 AND A
6
FINAL ADDITIONAL AGGREGATE AMOUNT OF $250,000 IN NOTES ON AUGUST 9, 2007,
PROVIDED THAT THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES SHALL NOT BE GREATER
THAN ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000).
SECTION 2.2
CLOSING.
(A)
THE PURCHASE AND ISSUANCE OF NOTES SHALL TAKE PLACE AT ONE OR MORE
CLOSINGS (EACH A "CLOSING" AND, COLLECTIVELY, THE "CLOSINGS") TO BE HELD AT THE
OFFICES OF DECHERT LLP, 30 ROCKEFELLER PLAZA, NEW YORK, NEW YORK 10112 (EACH
SUCH DATE. A "CLOSING DATE"), UNLESS ANOTHER PLACE IS AGREED TO BY THE PARTIES
HERETO, OR REMOTELY VIA THE EXCHANGE OF EXECUTED DOCUMENTS.
(B)
THE INITIAL CLOSING