Purchase of the Units. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein, Holdings and the Company agree to issue and sell to each of the Purchasers, severally and not jointly, and each of the Purchasers, severally and not jointly, agrees to purchase from Holdings and the Company the number of Units set forth opposite the name of such Purchaser on Schedule 1 hereto at a purchase price equal to $761.00 per Unit. Schedule 1 also sets forth for each Purchaser the principal amount at maturity of the Notes and the number of Warrants represented by the Units that such Purchaser has agreed to purchase. (b) Each Purchaser represents to Holdings and the Company that (i) it is either (A) an "accredited investor," within the meaning of Rule 501 promulgated by the Commission under the Securities Act or (B) a Qualified Institutional Buyer ("QIB") as defined in Rule 144A under the Securities Act ("Rule 144A"), (ii) it is acquiring the Units, the Notes and the Warrants to be purchased by it hereunder for its own account, for investment, and not with a view to or for sale in connection with any distribution thereof in violation of the registration provisions of the Securities Act or the rules and regulations promulgated thereunder, (iii) it is aware that it must bear the economic risk of such investment for an indefinite period of time since the statutory basis for exemption from registration under the Securities Act would not be present if such representation meant merely that the present intention of such Purchaser is to hold these securities for a deferred sale or for any fixed period in the future and (iv) it can afford to bear such economic risk and can afford to suffer the complete loss of its investment hereunder. Each Purchaser acknowledges that the Notes and the Warrants are "restricted securities" under the federal securities laws, have not been registered under the Securities Act or any state securities or blue sky laws and may not be sold except pursuant to an effective registration statement thereunder or any exemption from registration under the Securities Act and applicable state securities laws. Each Purchaser further acknowledges that each Note and Warrant shall include the restrictive legend set forth below: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
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Purchase of the Units. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein, Holdings and the Company agree agrees to issue and sell to each of the Purchasers, severally and not jointly, and each of the Purchasers, severally and not jointly, agrees to purchase from Holdings and the Company the number of Units set forth opposite the name of such Purchaser on Schedule 1 hereto at a purchase price equal to $761.00 507.76 per Unit. Schedule 1 also sets forth for each Purchaser the principal amount at maturity of the Holdings Notes and the number of Warrants represented by the Units that such Purchaser has agreed to purchase.
(b) Each Purchaser represents to Holdings and the Company that (i) it is either (A) an "accredited investor," within the meaning of Rule 501 promulgated by the Commission under the Securities Act or (B) a Qualified Institutional Buyer ("QIB") as defined in Rule 144A under the Securities Act ("Rule 144A"), (ii) it is acquiring the Units, the Holdings Notes and the Warrants to be purchased by it hereunder for its own account, for investment, and not with a view to or for sale in connection with any distribution thereof in violation of the registration provisions of the Securities Act or the rules and regulations promulgated thereunder, (iii) it is aware that it must bear the economic risk of such investment for an indefinite period of time since the statutory basis for exemption from registration under the Securities Act would not be present if such representation meant merely that the present intention of such Purchaser is to hold these securities for a deferred sale or for any fixed period in the future and (iv) it can afford to bear such economic risk and can afford to suffer the complete loss of its investment hereunder. Each Purchaser acknowledges that the Holdings Notes and the Warrants are "restricted securities" under the federal securities laws, have not been registered under the Securities Act or any state securities or blue sky laws and may not be sold except pursuant to an effective registration statement thereunder or any exemption from registration under the Securities Act and applicable state securities laws. Each Purchaser further acknowledges that each Holdings Note and Warrant shall include the restrictive legend set forth below: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCHSUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION." Each Purchaser further acknowledges that the Warrants and the Underlying Shares will be subject to the provisions of the Stockholders' Agreement, which agreement provides for certain restrictions on the transferability of the Warrants and the Underlying Shares and will bear such other legends as may be set forth in the Stockholders' Agreement.
(c) It is hereby agreed that, for purposes of Treasury Regulations 1.1273-2(h), (i) the aggregate "issue price" of a Unit consisting of the $1,000 in principal amount at maturity of the Holdings Notes and 1.46367 Warrants to be purchased by the Purchasers is $492.53, (ii) the aggregate fair market value and aggregate purchase price of each Note of $1,000 principal amount at maturity is $454.49 and (iii) the aggregate fair market value and aggregate purchase price of each Warrant is $25.99. Holdings and the Purchasers agree to use the foregoing issue price, purchase prices and fair market values for U.S. federal income tax purposes with respect to this transaction (unless otherwise required by a final determination by the Internal Revenue Service or a court of competent jurisdiction).
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