DATE HEREOF.
(R)
"VOTING SECURITIES" SHALL MEAN THE SHARES OF THE COMMON STOCK AND
ANY OTHER CAPITAL STOCK OR EQUITY SECURITIES OF THE COMPANY HAVING THE GENERAL
VOTING POWER UNDER ORDINARY CIRCUMSTANCES TO ELECT MEMBERS OF THE BOARD OF
DIRECTORS, AND ANY OTHER SECURITIES WHICH ARE CONVERTIBLE INTO, OR EXCHANGEABLE
FOR, VOTING SECURITIES.
(S)
"ZAZOVE" SHALL MEAN ZAZOVE ASSOCIATES, LLC, A DELAWARE LIMITED
LIABILITY COMPANY.
2.
PURCHASE AND SALE OF THE NOTES.
2.1.
Purchase and Sale of the Notes.
Subject to and upon the terms and
conditions set forth in this Agreement, at the Closing (as defined below), the
Company shall issue and sell to each Investor (in the case of each of Loomis and
Zazove, on behalf of its respective Advisory Clients), and each Investor (in the
case of each of Loomis and Zazove, on behalf of its respective Advisory
Clients), severally, shall purchase from the Company the aggregate principal
amount of Notes set forth opposite the name of such Investor under the heading
"Principal Amount of Notes to be Purchased" on Exhibit A attached hereto, at a
purchase price equal to 100% of the principal amount of Notes purchased.
2.2.
Closing.
(A)
THE CLOSING (THE "CLOSING") SHALL TAKE PLACE AT THE OFFICES OF
WILLKIE FARR & GALLAGHER LLP, 787 SEVENTH AVENUE, NEW YORK, NEW YORK ON
OCTOBER 15, 2009 (SUBJECT TO THE SATISFACTION OR WAIVER OF THE CONDITIONS SET
FORTH IN SECTIONS 6.1 AND 6.2), OR SUCH OTHER DATE MUTUALLY AGREED TO BY THE
COMPANY AND THE INVESTORS (THE "CLOSING DATE").
AT THE CLOSING, EACH INVESTOR
(IN THE CASE OF EACH OF LOOMIS AND ZAZOVE, ON BEHALF OF ITS RESPECTIVE ADVISORY
CLIENTS) SHALL PAY TO THE COMPANY THE PURCHASE PRICE SET FORTH OPPOSITE SUCH
INVESTOR'S NAME ON EXHIBIT A ATTACHED HERETO UNDER THE HEADING "PURCHASE PRICE"
BY WIRE TRANSFER TO THE COMPANY OF IMMEDIATELY AVAILABLE FUNDS, AGAINST DELIVERY
BY THE COMPANY TO EACH INVESTOR OF NOTES (IN THE CASE OF EACH OF LOOMIS AND
ZAZOVE, ON BEHALF OF ITS RESPECTIVE ADVISORY CLIENTS) IN THE PRINCIPAL AMOUNT
SET FORTH OPPOSITE SUCH INVESTOR'S NAME ON EXHIBIT A ATTACHED HERETO.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
EXCEPT AS SET
FORTH IN THE DISCLOSURE DOCUMENTS FILED WITH THE SEC NOT LESS THAN ONE DAY PRIOR
TO THE DATE OF THIS AGREEMENT, THE COMPANY HEREBY REPRESENTS AND WARRANTS TO
EACH OF THE INVESTORS AS FOLLOWS:
3.1.
Incorporation.
The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is qualified to do business in each jurisdiction in which the character of
its properties or the nature of its business
3
REQUIRES SUCH QUALIFICATION, EXCEPT WHERE THE FAILURE TO SO QUALIFY WOULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
THE COMPANY HAS ALL
REQUISITE CORPORATE POWER AND AUTHORITY TO CARRY ON ITS BUSINESS AS NOW
CONDUCTED.
3.2.
Subsidiaries.
Each subsidiary of the Company that is a
corporation has been duly incorporated, is validly existing as a corporation in