satisfaction (or waiver) of the conditions to the Closing set forth in Sections
9, 10 and 11 below (other than any such condition required to be satisfied at
the Closing), or such later or earlier date and time as is mutually agreed to by
the Company and a Majority of the Buyers.
The Closing shall occur at the
offices of Katten Muchin Rosenman LLP, 525 West Monroe Street, Chicago, Illinois
60661, or at such other place as the Company and the Buyers may collectively
designate in writing.
c.
Form of Payment and Delivery.
(I)
ON THE CLOSING DATE, (A) EACH BUYER
SHALL PAY TO THE COMPANY FOR THE COMMON SHARES TO BE ISSUED AND SOLD TO SUCH
BUYER ON THE CLOSING DATE AN AMOUNT EQUAL TO THE INVESTMENT AMOUNT FOR THE
COMMON SHARES PURCHASED BY SUCH BUYER AS SET FORTH OPPOSITE SUCH BUYER'S NAME ON
THE SCHEDULE OF BUYERS, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS IN
ACCORDANCE WITH THE COMPANY'S WRITTEN WIRE INSTRUCTIONS, PROVIDED THAT ANY
PAYMENT TO BE MADE BY STERLING SHALL BE SUBJECT TO STERLING'S RIGHT OF SET-OFF
FOR ITS EXPENSES (AS DEFINED BELOW) PURSUANT TO SECTION 14(M) HEREOF, AND
(B) THE COMPANY SHALL DELIVER TO EACH BUYER A SHARE CERTIFICATE REPRESENTING THE
COMMON SHARES THAT SUCH BUYER IS PURCHASING HEREUNDER ON THE CLOSING DATE, IN
EACH CASE DULY EXECUTED ON BEHALF OF THE COMPANY AND THE TRANSFER AGENT AND
REGISTRAR FOR THE COMMON STOCK AND REGISTERED IN THE NAME OF SUCH BUYER OR ITS
DESIGNEE.
(II)
IF ANY ONE OR MORE OF THE BUYERS (OTHER
THAN STERLING OR ANY OF ITS AFFILIATES) SHALL FAIL OR REFUSE TO FUND ITS
OBLIGATION UNDER SECTION 1(C)(I) IN A TIMELY MANNER, OR OTHERWISE FAIL OR REFUSE
TO PURCHASE THE COMMON SHARES THAT IT HAS OR THEY HAVE AGREED TO PURCHASE
HEREUNDER (SUCH COMMON SHARES, COLLECTIVELY, THE "DEFAULTING BUYER COMMON
SHARES"), THEN, AT THE ELECTION OF STERLING, IN ITS SOLE DISCRETION, STERLING,
OR ANY OF ITS DESIGNEES (IF STERLING SO ELECTS, ANY SUCH PURCHASER, A
"REPLACEMENT BUYER," AND, IF MULTIPLE PURCHASERS, COLLECTIVELY, THE "REPLACEMENT
BUYERS"), MAY, BUT SHALL NOT BE OBLIGATED TO, PURCHASE ALL OR ANY PORTION OF THE
DEFAULTING BUYER COMMON SHARES ON THE CLOSING DATE, AND EACH OF THE ALLOCATION
PERCENTAGE AND THE SCHEDULE OF BUYERS SHALL BE DEEMED TO REFLECT SUCH ADJUSTMENT
TO THE NUMBER OF COMMON SHARES TO
2
BE PURCHASED BY THE REPLACEMENT BUYER OR REPLACEMENT BUYERS PURSUANT TO THIS
SECTION 1(C).
IN NO EVENT SHALL THE FOREGOING RELIEVE ANY BUYER OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, NOR SHALL IT ACT AS A CURE OF, OR ELECTION OF
A REMEDY WITH RESPECT TO, ANY BREACH BY A DEFAULTING BUYER.
2.
BUYERS' REPRESENTATIONS AND WARRANTIES.
Each Buyer severally (and not jointly) represents and warrants, as of the date
of this Agreement and the Closing Date, with respect to only itself, that:
a.
Investment Purpose.
Such Buyer is
acquiring the Securities for such Buyer's own account and not with a view
towards, or for resale in connection