DOCUMENTS, THE
59
ENFORCEMENT OF STERLING'S OR ANY BUYER'S RIGHTS AND REMEDIES UNDER ANY OF THE
TRANSACTION DOCUMENTS.
IF AND TO THE EXTENT THERE ARE ANY AMOUNTS PAYABLE BY
STERLING TO THE COMPANY PURSUANT TO THIS AGREEMENT OR ANY OF THE OTHER
TRANSACTION DOCUMENTS, INCLUDING ANY AMOUNT TO BE DELIVERED BY STERLING TO THE
COMPANY FOR STERLING'S ALLOCATION PERCENTAGE OF THE PURCHASE PRICE FOR THE
COMMON SHARES TO BE PURCHASED BY STERLING AT CLOSING, STERLING MAY, IN ITS SOLE
DISCRETION, SET-OFF ANY AMOUNTS PAYABLE BY THE COMPANY TO STERLING PURSUANT TO
THIS SECTION 14(M) AGAINST ANY AMOUNTS PAYABLE BY STERLING TO THE COMPANY.
IN
ADDITION, AT THE CLOSING, THE COMPANY SHALL PAY THE FINANCIAL ADVISORY FEES AND
EXPENSES OF SIGNAL HILL CAPITAL GROUP LLC ("SIGNAL HILL") IN CONNECTION WITH THE
TRANSACTIONS, ALL OF WHICH ARE SET FORTH IN THAT CERTAIN LETTER AGREEMENT, DATED
MAY 15, 2009, A COPY OF WHICH HAS BEEN PROVIDED TO THE COMPANY PRIOR TO THE DATE
OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE COMPANY BE
OBLIGATED TO PAY ANY FEES AND EXPENSES OF SIGNAL HILL IN EXCESS OF $1,270,000
(THE "SIGNAL HILL CAP").
STERLING SHALL PAY AND HOLD THE COMPANY HARMLESS
AGAINST ANY LIABILITY, LOSS OR EXPENSE (INCLUDING ATTORNEYS' FEES AND
OUT-OF-POCKET EXPENSES) ARISING IN CONNECTION WITH ANY ACTION, CLAIM OR
PROCEEDING UNDER SECTION 14(M) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE
EXPENSE CAP AND THE SIGNAL HILL CAP.
(II)
EACH OF THE COMPANY AND EACH OF THE BUYERS ACKNOWLEDGES THAT THE
AGREEMENTS CONTAINED IN THIS SECTION 14(M) ARE AN INTEGRAL PART OF THE
TRANSACTIONS, THAT WITHOUT THESE AGREEMENTS THE COMPANY AND EACH OF THE BUYERS
WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, AND THAT ANY AMOUNTS PAYABLE
PURSUANT TO THIS SECTION 14(M) DO NOT CONSTITUTE A PENALTY. IF THE COMPANY FAILS
TO PAY AS DIRECTED IN WRITING BY STERLING ANY AMOUNTS DUE TO ACCOUNTS DESIGNATED
BY STERLING PURSUANT TO THIS SECTION 14(M) WITHIN THE TIME PERIODS SPECIFIED IN
THIS SECTION 14(M), THE COMPANY SHALL PAY THE COSTS AND EXPENSES (INCLUDING
REASONABLE LEGAL FEES AND EXPENSES) INCURRED BY STERLING IN CONNECTION WITH ANY
ACTION, INCLUDING THE FILING OF ANY LAWSUIT, TAKEN TO COLLECT PAYMENT OF SUCH
AMOUNTS, TOGETHER WITH INTEREST ON SUCH UNPAID AMOUNTS AT THE PRIME LENDING RATE
PREVAILING DURING SUCH PERIOD AS PUBLISHED IN THE WALL STREET JOURNAL PLUS 500
BASIS POINTS, CALCULATED ON A DAILY BASIS FROM THE DATE SUCH AMOUNTS WERE
REQUIRED TO BE PAID UNTIL THE DATE OF ACTUAL PAYMENT.
(III)
ON OR PRIOR TO THE DATE HEREOF, THE COMPANY HAS DEPOSITED
$350,000 IN AN ESCROW ACCOUNT, PURSUANT TO THE TERMS OF AN ESCROW AGREEMENT, A
COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT H (THE "ESCROW AGREEMENT"), TO
SECURE THE COMPANY'S OBLIGATIONS PURSUANT TO THIS SECTION 14(M).
n.
Specific Performance.
The parties to this Agreement agree that
irreparable damage would occur and that the parties to this Agreement would not
have any adequate remedy at Law in the event that any of the provisions