Agreement as may be required to be
delivered hereunder
5
and such other documents, instruments and agreements executed in connection with
the consummation of the transactions contemplated hereby.
"VWAP" means, for any date, the price determined by the first of the following
clauses that applies: (a) if the Common Stock is then listed or quoted on a
Trading Market, the daily volume weighted average price of the Common Stock for
such date (or the nearest preceding date) on the Trading Market on which the
Common Stock is then listed or quoted for trading as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New
York City time); (b)
if the OTC Bulletin Board is not a Trading Market, the
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not then
quoted for trading on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the "Pink Sheets" published by Pink Sheets, LLC (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported; or (d) in
all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Holder and reasonably
acceptable to the Company.
SECTION 1.2
DEFINITIONAL PROVISIONS.
(A)
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 PROVISIONS OF THIS AGREEMENT.
(B)
THE TERMS DEFINED IN THE SINGULAR SHALL HAVE A COMPARABLE MEANING WHEN
USED IN THE PLURAL, AND VICE VERSA.
TERMS REFERRING TO A MASCULINE GENDER SHALL
BE DEEMED TO REFER TO THE FEMININE OR NEUTER GENDERS, AS APPLICABLE.
(C)
REFERENCES TO AN "EXHIBIT" OR TO A "SCHEDULE" ARE, UNLESS OTHERWISE
SPECIFIED, TO ONE OF THE EXHIBITS OR SCHEDULES ATTACHED TO OR REFERENCED IN THIS
AGREEMENT, AND REFERENCES TO AN "ARTICLE" OR A "SECTION" ARE, UNLESS OTHERWISE
SPECIFIED, TO ONE OF THE ARTICLES OR SECTIONS OF THIS AGREEMENT.
(D)
THE TERM "PERSON" INCLUDES ANY INDIVIDUAL, PARTNERSHIP, JOINT VENTURE,
CORPORATION, LIMITED LIABILITY COMPANY, TRUST, ENTITY, UNINCORPORATED
ORGANIZATION OR GOVERNMENT OR ANY DEPARTMENT OR AGENCY THEREOF.
(E)
THE TERM "DOLLARS" OR "$" SHALL REFER TO THE CURRENCY OF THE UNITED STATES
OF AMERICA.
(F)
ALL REFERENCES TO TIME SHALL REFER TO MINNEAPOLIS, MINNESOTA TIME.
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ARTICLE II
PURCHASE AND SALE OF CONVERTIBLE NOTES
SECTION 2.1
PURCHASE AND SALE OF NOTES.
SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THE INVESTOR AGREES TO PURCHASE AT THE CLOSING, AND THE COMPANY
AGREES TO SELL AND ISSUE TO THE INVESTOR AT THE CLOSING, A NOTE, IN
SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT A, IN THE ORIGINAL PRINCIPAL
AMOUNT OF $20,000,000 (THE "NOTE"), AT A PURCHASE PRICE EQUAL