regulations promulgated thereunder, and applicable state securities laws.
H.
Contemporaneously with the execution and delivery of this
Agreement, and as a condition and inducement to the Company's willingness to
enter into this Agreement, Sterling Capital Partners III, L.P. is executing and
delivering a guarantee, substantially in the form attached hereto as Exhibit D,
in favor of the Company.
NOW THEREFORE, the Company and the Investor hereby agree as follows:
1.
PURCHASE AND SALE OF COMMON SHARES AND THE WARRANT.
a.
Purchase and Sale of Common Shares and the Warrant.
(I)
INVESTOR OPTION.
AT ANY TIME ON OR AFTER THE DATE OF THIS
AGREEMENT BUT AT OR PRIOR TO 5:00 P.M., CHICAGO TIME, ON JUNE 30, 2010 (THE
"INVESTOR TERMINATION DATE"), THE INVESTOR MAY ELECT (IN THE INVESTOR'S SOLE
DISCRETION) TO PURCHASE FROM THE COMPANY THE COMMON SHARES AND THE WARRANT, UPON
DELIVERY OF A WRITTEN NOTICE TO THE COMPANY (AN "INVESTOR CLOSING NOTICE"), IN
THE FORM ATTACHED HERETO AS EXHIBIT E, ON SUCH DATE AS SHALL BE SET FORTH IN THE
CLOSING NOTICE (THE "CLOSING DATE"), PROVIDED THAT THE CLOSING DATE SHALL BE NO
LESS THAN FIVE BUSINESS DAYS AFTER THE DATE OF THE CLOSING NOTICE. ON THE
CLOSING DATE, THE COMPANY SHALL ISSUE AND SELL TO THE INVESTOR, AND THE INVESTOR
SHALL PURCHASE FROM THE COMPANY (THE "CLOSING"), (I) 2,500,000 COMMON SHARES
(SUBJECT TO ADJUSTMENT AS SET FORTH IN SECTION 1(D) BELOW) AT A PURCHASE PRICE
OF $4.00 PER SHARE, AND (II) THE WARRANT TO PURCHASE 2,000,000 WARRANT SHARES
(SUBJECT TO ADJUSTMENT AS SET FORTH IN SECTION 1(D) BELOW AND AS SET FORTH IN
THE WARRANT).
THE AGGREGATE PURCHASE PRICE (THE "PURCHASE PRICE") FOR THE
COMMON SHARES AND THE WARRANT AT THE CLOSING PURCHASED BY THE INVESTOR SHALL BE
TEN MILLION DOLLARS ($10,000,000).
THE CLOSING SHALL OCCUR AT THE OFFICES OF
OPPENHEIMER WOLFF & DONNELLY LLP, 45 SOUTH SEVENTH STREET, MINNEAPOLIS,
MINNESOTA 55402, OR AT SUCH OTHER PLACE AS THE COMPANY AND THE INVESTOR MAY
COLLECTIVELY DESIGNATE IN WRITING.
THE INVESTOR'S RIGHT TO DELIVER AN INVESTOR
CLOSING NOTICE, AND THE INVESTOR'S RIGHT TO ELECT TO PURCHASE FROM THE COMPANY
THE COMMON SHARES AND THE WARRANT IN ACCORDANCE WITH THIS SECTION 1(A)(I), IS
NOT, AND SHALL NOT BE, SUBJECT TO ANY CONDITION, OTHER THAN THE DELIVERY OF THE
INVESTOR CLOSING NOTICE AND THE PAYMENT OF THE PURCHASE PRICE AS SET FORTH IN
THIS SECTION 1(A)(I), AND THE COMPANY SHALL BE OBLIGATED TO ISSUE AND DELIVER
THE COMMON SHARES AND THE WARRANT, AND TO CLOSE THE TRANSACTIONS, ON THE CLOSING
DATE REGARDLESS OF ANY CLAIM OR
2
ALLEGATION THAT THE INVESTOR HAS BREACHED, OR IS IN BREACH OF ANY OF ITS
REPRESENTATIONS, COVENANTS, OR OBLIGATIONS UNDER ANY OF THE TRANSACTION
DOCUMENTS.
(II)
COMPANY OPTION.
IN THE EVENT THAT AT ANY TIME ON OR AFTER THE
DATE OF THIS AGREEMENT BUT AT OR PRIOR TO 5:00 P.M., CHICAGO TIME, ON MARCH 31,
2010 (THE "COMPANY TERMINATION DATE") THE COMPANY DELIVERS TO THE INVESTOR A
CERTIFICATE (A "COMPANY CLOSING CERTIFICATE") CERTIFYING THAT