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Exhibit 10
EXECUTION COPY
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this " Agreement "), dated
as of December 11, 2006, is made by and among Gander Mountain
Company, a Minnesota corporation (the " Company "), and the
investors named on the signature pages hereto (the "
Investors ").
RECITALS
A.
The Company and the Investors are executing and
delivering this Agreement in reliance upon the exemptions from
securities registration afforded by Section 4(2) of the Securities
Act and Rule 506 under Regulation D.
B.
The Investors desire, upon the terms and conditions
stated in this Agreement, to purchase the Company’s Common
Stock, for an aggregate purchase price of $50,000,000.
C.
The capitalized terms used herein and not otherwise
defined have the meanings given them in ARTICLE IX.
TERMS AND CONDITIONS
In consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company and the Investors hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF COMMON STOCK
1.1
Purchase and Sale of Common Stock .
At the Closing, subject to the terms of this Agreement and the
satisfaction or waiver of the conditions set forth in ARTICLES VI
and VII, the Company will issue and sell to each Investor, and each
Investor will (on a several and not a joint basis) purchase from
the Company, that number of shares of Common Stock (collectively,
the Shares ") set forth beneath such Investor’s name
on the signature pages hereof.
1.2
Payment . Each Investor will pay
$8.77 per share for each share of Common Stock, by either wire
transfer of immediately available funds in accordance with the
Company’s written wire instructions or cancellation of that
certain amended and restated subordinated note due August 15, 2010
issued by the Company in the aggregate principal amount of
$20,000,000 (the " Note ") (with cancellation of the Note to
include the amount of all principal and accrued but unpaid interest
on the Note), simultaneously with delivery by the Company to each
Investor of the shares of Common Stock so purchased by such
Investor, and the Company will deliver the Shares against delivery
of the purchase price as described above.
1.3
Closing Date . Subject to the
satisfaction or waiver of the conditions set forth in ARTICLES VI
and VII, the Closing will take place at 3:01 p.m., Central Time, on
December 12, 2006, or at another date or time agreed upon by
the parties to this Agreement (the " Closing Date ").
The Closing will be held at the offices of Faegre & Benson LLP
in Minneapolis, Minnesota, or at such other place as the parties
agree.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF INVESTORS
Each Investor represents and warrants to the Company, severally
and solely with respect to itself and its purchase hereunder and
not with respect to any other Investor, that:
2.1
Organization and Qualification . To
the extent the Investor is an entity, the Investor is duly
incorporated or organized, validly existing and in good standing
under the laws of the state of
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organization, with full power and authority
(corporate and other) to own, lease, use and operate its
properties, if any, and to carry on its business as and where now
owned, leased, used, operated and conducted. To the extent
the Investor is an entity, the Investor is duly qualified to do
business and is in good standing in every jurisdiction in which the
nature of the business conducted by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect.
2.2
Authorization; Enforcement . To the
extent the Investor is an entity, (a) the Investor has all
requisite power and authority to enter into and to perform its
obligations under this Agreement, to consummate the transactions
contemplated hereby and thereby and to purchase the Common Stock in
accordance with the terms hereof; (b) the execution, delivery
and performance of this Agreement by the Investor and the
consummation by it of the transactions contemplated hereby have
been duly authorized by all required parties and no further consent
or authorization of Investor, its board of directors, shareholders,
trustees or members is required; (c) this Agreement has been duly
executed and delivered by the Investor; and (d) assuming the valid
and binding execution of this Agreement by the Company and
compliance with the terms of this Agreement by the Company, this
Agreement constitutes a legal, valid and binding obligation of the
Investor enforceable against the Investor by the Company in
accordance with their respective terms, except as may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and the
application of general principles of equity. To the extent
the Investor is a natural person, this Agreement has been duly and
validly authorized, executed and delivered on behalf of the
Investor and is a valid and binding agreement of the Investor,
enforceable in accordance with its terms, subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and the
application of general principles of equity.
2.3
Investment Purpose . The Investor is
purchasing the Common Stock for its own account and not with a
present view toward the public sale or distribution thereof, except
pursuant to sales registered or exempted from registration under
the Securities Act.
2.4
Accredited Investor Status . The
Investor is an "accredited investor" as defined in Rule 501(a) of
Regulation D.
2.5
Reliance on Exemptions . The
Investor understands that the Common Stock is being offered and
sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and
accuracy of, and the Investor’s compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth herein in order to
determine the availability of such exemptions and the eligibility
of the Investor to acquire the Common Stock.
2.6
Information and Sophistication . The
Investor and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the
Company, and materials relating to the offer and sale of the Common
Stock, that have been requested by the Investor or its advisors, if
any. The Investor and its advisors, if any, have been
afforded the opportunity to ask questions of the Company. The
Investor acknowledges and understands that its investment in the
Common Stock involves a significant degree of risk, including the
risks reflected in the SEC Documents. The Investor is
experienced and knowledgeable in financial and business matters, is
capable of evaluating the merits and risks of investing in the
Common Stock, and does not need or desire the assistance of a
knowledgeable representative to aid in the evaluation of such risks
who the Investor intends to use in connection with a decision as to
whether to purchase the Common Stock.
2.7
Governmental Review . The Investor
understands that no United States federal or state agency or any
other government or governmental agency has passed upon or made any
recommendation or endorsement of the Common Stock or an investment
therein.
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2.8
Transfer or Resale . The Investor
understands that:
(a)
except as provided in ARTICLE XII, the Shares have
not been and are not being registered under the Securities Act or
any applicable state securities laws and, consequently, the
Investor may have to bear the risk of owning the Shares for an
indefinite period of time because the Shares may not be transferred
unless (i) the resale of the Shares is registered pursuant to
an effective registration statement under the Securities Act; (ii)
the Investor has delivered to the Company an opinion of counsel
satisfactory to the Company (in form, substance and scope customary
for opinions of counsel in comparable transactions) to the effect
that the Shares to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration; or
(iii) the Shares are sold or transferred pursuant to Rule
144;
(b)
any sale of the Shares made in reliance on Rule 144
may be made only in accordance with the terms of Rule 144 and, if
Rule 144 is not applicable, any resale of the Shares under
circumstances in which the seller (or the person through whom the
sale is made) may be deemed to be an underwriter (as that term is
defined in the Securities Act) may require compliance with another
exemption under the Securities Act or the rules and regulations of
the SEC thereunder; and
(c)
except as set forth in ARTICLE XII, neither the
Company nor any other person is under any obligation to register
the Shares under the Securities Act or any state securities laws or
to comply with the terms and conditions of any exemption
thereunder.
2.9
Legends . The Investor understands
that until (a) the Shares may be sold by the Investor under Rule
144(k) or (b) such time as the resale of the Shares has been
registered under the Securities Act as contemplated by ARTICLE XII,
the certificates representing the Shares will bear a restrictive
legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for such
Shares):
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES (COLLECTIVELY,
THE " ACTS "). THE SECURITIES MAY NOT BE SOLD,
DISTRIBUTED, OFFERED, PLEDGED, ENCUMBERED, ASSIGNED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF THE FOLLOWING: (1) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACTS COVERING
THE TRANSACTION, (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACTS, OR (3) THE COMPANY OTHERWISE SATISFIES
ITSELF THAT REGISTRATION IS NOT REQUIRED UNDER THE ACTS.
The legend set forth above will be removed and the Company will
issue a certificate without the legend to the holder of any
certificate upon which it is stamped, in accordance with the terms
of ARTICLE V.
2.10
Residency . The Investor is a
resident of the jurisdiction set forth immediately below such
Investor’s name on the signature pages hereto.
2.11
No Intent to Effect a Change of Control
. The Investor has no present intent to change or influence
the control of the Company within the meaning of Rule 13d-1 of the
Exchange Act.
2.12
No Broker Fees . The Investor has
not engaged any brokers, finders, or agents, and the Investor has
not incurred, and neither the Investor nor the Company will incur,
directly or indirectly, as a
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result of any action taken by the Investor, any
liability for brokerage or finders’ fees or agents’
commissions or any similar charges in connection with this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors that:
3.1
Organization and Qualification . The
Company is duly incorporated, validly existing and in good standing
under the laws of the State of Minnesota, with full power and
authority (corporate and other) to own, lease, use and operate its
properties, if any, and to carry on its business as and where now
owned, leased, used, operated and conducted. The Company is
duly qualified to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it
makes such qualification necessary, except where the failure to be
so qualified or in good standing would not have a Material Adverse
Effect.
3.2
Authorization; Enforcement .
(a) The Company has all requisite corporate power and
authority to enter into and to perform its obligations under this
Agreement, to consummate the transactions contemplated hereby and
to issue the Common Stock in accordance with the terms hereof;
(b) the execution, delivery and performance of this Agreement
by the Company and the consummation by it of the transactions
contemplated hereby (including without limitation the issuance of
the Common Stock in accordance with the Company’s Articles of
Incorporation and this Agreement) have been duly authorized by the
Company’s board of directors and a committee thereof
consisting of "disinterested" directors pursuant to Section
302A.673 of the Minnesota Statutes, and no further consent or
authorization of the Company, its board of directors or its
shareholders is required; (c) this Agreement has been duly executed
and delivered by the Company; and (d) assuming the valid and
binding execution of this Agreement by the Investor and compliance
with the terms of this Agreement by such Investor, this Agreement
constitutes a legal, valid and binding obligation of the Company
enforceable against the Company by such Investor in accordance with
its terms, except as may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the rights of creditors generally and the application of general
principles of equity.
3.3
Issuance of Securities . The Common
Stock has been duly authorized and, upon issuance in accordance
with the terms of this Agreement, will be validly issued, fully
paid and non-assessable and free from all taxes, liens, claims,
encumbrances and charges with respect to the issuance thereof
(other than liens imposed by an Investor).
3.4
No Conflicts; No Violation .
(a)
The execution, delivery and performance of this
Agreement by the Company, and the consummation by the Company of
the transactions contemplated hereby (including, without
limitation, the issuance of the Common Stock) do not and will not
(i) conflict with or result in a violation of any provision of
the Company’s Articles of Incorporation or Bylaws,
(ii) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with
notice or lapse of time or both could become a default) under, or
give to others any rights of termination, amendment (including
without limitation, the triggering of any anti-dilution provision),
acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party, or (iii) result in
a violation of any law, rule, regulation, order, judgment or decree
(including U.S. federal and state securities laws and regulations
and regulations of any self-regulatory organizations to which the
Company or its securities are subject) applicable to the Company or
by which any property or asset of the Company is bound or affected
(except, in the case of clauses (ii) and (iii), for such conflicts,
breaches, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect).
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(b)
The Company is not in violation of its Articles of
Incorporation, Bylaws or other organizational documents and the
Company is not in default (and no event has occurred which with
notice or lapse of time or both could put the Company in default)
under, and the Company has not taken any action or failed to take
any action that (and no event has occurred which, without notice or
lapse of time or both) would give to others any rights of
termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company is a party
or by which any property or assets of the Company is bound or
affected, except for possible defaults as would not, individually
or in the aggregate, have a Material Adverse Effect.
(c)
Except as specifically contemplated by this
Agreement and as required under the Securities Act and any
applicable state securities laws or any listing agreement with any
securities exchange, the Company is not required to obtain any
consent, authorization or order of (other than those obtained on or
prior to the date hereof), or make any filing or registration with,
any court or governmental agency or any regulatory or self
regulatory agency in order for it to execute, deliver or perform
any of its obligations under this Agreement in accordance with the
terms hereof, or to issue and sell the Common Stock in accordance
with the terms hereof.
3.5
SEC Documents . Since the closing
date of the Company’s initial public offering, the Company
has timely filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to
the reporting requirements of the Exchange Act (all of the
foregoing filed prior to the date hereof being referred to herein
as the " SEC Documents "). As of their respective
dates, the SEC Documents complied in all material respects with the
requirements of the Exchange Act or the Securities Act, as the case
may be, and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading, other than SEC Documents that have
been amended as of the date hereof.
3.6
No Broker Fees . Except for the
Mercanti Group, LLC, Company has not engaged any brokers, finders
or agents, and the Company has not incurred, and neither the
Company nor any Investor will incur, directly or indirectly, as a
result of any action taken by the Company, any liability for
brokerage or finders’ fees or agents’ commissions or
any similar charges in connection with this Agreement, except for
fees and expenses payable to Mercanti Group, LLC, which shall be
paid by the Company.
ARTICLE IV
COVENANTS
4.1
Best Efforts . Each party will use
its best efforts to satisfy in a timely fashion each of the
conditions to be satisfied by it under ARTICLES VI and VII of
this Agreement.
4.2
Form D; Blue Sky Laws . The Company
will file a Notice of Sale of Securities on Form D with respect to
the Shares, as required under Regulation D. The Company will
take such action as it reasonably determines to be necessary to
qualify the Shares for sale to the Investors under this Agreement
under applicable securities (or "blue sky") laws of the states of
the United States (or to obtain an exemption from such
qualification). The Company will file with the SEC a Current
Report on Form 8-K disclosing this Agreement and the transactions
contemplated hereby within four business days after the Closing
Date and will make any required notice filings with state
securities law authorities on a timely basis.
4.3
Expenses . Except as otherwise set
forth in this SECTION 4.3, each party will pay its own fees and
expenses, as well as the fees and expenses of its own advisors and
consultants, in connection
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with the transactions contemplated by this
Agreement. Upon the consummation of the sale of the Common
Stock anticipated by this Agreement, the Company will pay the
reasonable out-of-pocket expenses incurred by the Investors in
connection with the transactions herein contemplated, including
without limitation, the fees and out-of-pocket expenses of one
special counsel to the Investors in connection with the
transactions herein contemplated, up to an aggregate amount of
$15,000. The Company will also pay all fees and expenses
incurred by the Investors with respect to any amendments or waivers
requested by the Company (whether or not the same become effective)
under or in respect of this Agreement and the fees and expenses set
forth in SECTION 12.21.
4.4
Sales by Investors . Each Investor
will sell any Shares sold by it in compliance with applicable
prospectus delivery requirements, if any, or otherwise in
compliance with the requirements for an exemption from registration
under the Securities Act and the rules and regulations promulgated
thereunder. No Investor will make any sale, transfer or other
disposition of the Shares in violation of federal or state
securities laws or the restrictive provisions set forth in this
Agreement.
4.5
Use of Proceeds . The Company will
use the proceeds from the sale of the Shares for general corporate
purposes, which may include the repayment of debt to institutional
lenders.
ARTICLE V
TRANSFER AGENT INSTRUCTIONS; REMOVAL OF LEGENDS
5.1
Issuance of Certificates . The
Company will instruct its transfer agent to issue certificates,
registered in the name of each Investor as set forth on the
signature pages to this Agreement, for Common Stock in such amounts
as specified on the signature pages to this Agreement. All
such certificates will bear the restrictive legend described in
SECTION 2.9.
5.2
Unrestricted Securities . If, unless
otherwise required by applicable state securities laws,
(a) the resale of the Shares represented by a certificate has
been registered under an effective registration statement filed
under the Securities Act, (b) a holder of Shares provides the
Company and the Transfer Agent with an opinion of counsel, in form,
substance and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such
Shares may be made without registration under the Securities Act
and such sale either may occur without restriction on the manner of
such sale or transfer, (c) such holder provides the Company
and the Transfer Agent with reasonable assurances that such Shares
can be sold under Rule 144, or (d) the Shares represented by a
certificate can be sold without restriction as to the number of
securities sold under Rule 144(k), the Company will permit the
transfer of the Shares, and the Transfer Agent will issue one or
more certificates, free from any restrictive legend, in such name
and in such denominations as specified by such holder.
ARTICLE VI
CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL
The obligation of the Company to issue and sell the Shares to
each Investor at the Closing is subject to the satisfaction by such
Investor, on or before the Closing Date, of each of the following
conditions. These conditions are for the Company’s sole
benefit and may be waived by the Company at any time in its sole
discretion:
6.1
The Investor will have executed this Agreement and
will have delivered this Agreement to the Company.
6.2
The Investor will have delivered the purchase price
for the Common Stock to the Company in accordance with this
Agreement, including delivery of the Note and, if not previously
delivered to the Company, that certain original floating rate
convertible subordinated note due August 15, 2010 issued by the
Company in the aggregate principal amount of $20,000,000 that was
amended and restated by the Note.
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6.3
The representations and warranties of the Investor
must be true and correct in all material respects as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date, which representations
and warranties must be correct as of such date), and the Investor
will have performed and complied in all material respects with the
covenants and conditions required by this Agreement to be performed
or complied with by the Investor at or prior to the
Closing.
6.4
No statute, rule, regulation, executive order,
decree, ruling or injunction will have been enacted, entered,
promulgated or endorsed by or in any court or governmental
authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby
which prohibits the consummation of any of the transactions
contemplated by this Agreement.
ARTICLE VII
CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE
The obligation of each Investor hereunder to purchase the Shares
from the Company at the Closing is subject to the satisfaction, on
or before the Closing Date, of each of the following
conditions. These conditions are for each Investor’s
respective benefit and may be waived by any Investor at any time in
its sole discretion:
7.1
The Company will have executed this Agreement and
will have delivered this Agreement to the Investor.
7.2
The Company will have delivered to the Investor the
Shares in the amounts specified in SECTION 1.1.
7.3
The representations and warranties of the Company
must be true and correct in all material respects as of the Closing
as though made at that time (except for representations and
warranties that speak as of a specific date, which representations
and warranties must be true and correct as of such date) and the
Company must have performed and complied in all material respects
with the covenants and conditions required by this Agreement to be
performed or complied with by the Company at or prior to the
Closing.
7.4
No litigation, statute, rule, regulation, executive
order, decree, ruling or injunction will have been enacted,
entered, promulgated or endorsed by or in any court or governmental
authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby
which prohibits the consummation of any of the transactions
contemplated by this Agreement.
7.5
Trading and listing of the Common Stock on the
Nasdaq must not have been suspended by the SEC or the Nasdaq, nor
shall Nasdaq have notified the Company of any failure of the
Company to meet any of the continued listing standards.
7.6
The Investors will have received an opinion from
Faegre & Benson LLP, counsel to the Company, in the form
attached hereto as Exhibit A .
7.7
The Company shall have received the consent of the
Erickson Family to the granting of registration rights by this
Agreement as required by that certain Registration Rights Agreement
dated as of March 11, 2004 by and among the Company and members of
the Erickson Family.
7.8
The Company shall have received any consent required
under the definitive agreements or instruments governing the Senior
Debt to be received prior to the execution of this Agreement or the
consummation of the transactions contemplated hereby.
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ARTICLE VIII
INDEMNIFICATION
8.1
Indemnification by Company . In
consideration of each Investor’s execution and delivery of
this Agreement and its acquisition of the Shares hereunder, and in
addition to all of the Company’s other obligations under this
Agreement, the Company will defend, protect, indemnify and hold
harmless each Investor and each other holder of the Shares and all
of their shareholders, officers, directors, employees, advisors and
direct or indirect investors and any of the foregoing
person’s agents or other representatives (including, without
limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the "
Indemnitees ") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith
(regardless of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), and including
reasonable attorneys’ fees and disbursements (the "
Indemnified Liabilities "), incurred or suffered by an
Indemnitee as a result of, or arising out of, or relating to
(a) any breach of any representation or warranty made by the
Company herein or in any other certificate, instrument or document
contemplated hereby or thereby, (b) any breach of any
covenant, agreement or obligation of the Company contained herein
or in any other certificate, instrument or document contemplated
hereby or thereby, (c) any cause of action, suit or claim
brought or made against such Indemnitee and arising out of or
resulting from the execution, delivery, performance, breach or
enforcement of this Agreement by the Company or (d) the status
of such Investor or holder of the Shares as an investor in the
Company to the extent such status arises from actions or inaction
by the Company in violation of law. To the extent that the
foregoing undertaking by the Company is unenforceable for any
reason, the Company will make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities
that is permissible under applicable law.
8.2
Indemnification by Investors . Each
Investor, severally and not jointly, will defend, protect,
indemnify and hold harmless the Company all of its shareholders,
officers, directors, employees and direct or indirect investors and
any of the foregoing person’s agents or other representatives
(including, without limitation, those retained in connection with
the transactions contemplated by this Agreement) (collectively, the
" Company Indemnitees ") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith
(regardless of whether any such Company Indemnitee is a party to
the action for which indemnification hereunder is sought), and
including reasonable attorneys’ fees and disbursements (the "
Indemnified Company Liabilities ") incurred by a Company
Indemnitee solely as a result of, or arising solely out of, or
relating solely to (a) any breach of any representation or warranty
made by such Investor herein or in any other certificate,
instrument or document contemplated hereby or thereby, (b) any
breach of any covenant, agreement or obligation of the Investor
contained herein or in any other certificate, instrument or
document contemplated hereby or thereby, or (c) the failure of an
Investor to comply with the requirements of the Securities Act or
any state securities laws, which failure is not caused by the
negligence or willful misconduct of the Company.
ARTICLE IX
DEFINITIONS
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" Closing " means the closing of the purchase
and sale of the Shares under this Agreement.
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" Closing Date " has the meaning set forth in
SECTION 1.3.
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" Common Stock " means the common stock, par
value $.01 per share, of the Company.
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" Company " means Gander Mountain Company, a
Minnesota corporation.
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" Erickson Family " means the descendants of
Arthur T. and Elsie P. Erickson and Alfred W. and Rose E. Erickson,
or trusts established primarily for the benefit of such descendants
and/or their spouses or relatives.
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" Exchange Act " means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder, or any similar successor statute.
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" Investors " means the investors whose names
are set forth on the signature pages of this Agreement, and their
permitted transferees.
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" Material Adverse Effect " means a material
adverse effect on (a) the assets, liabilities, business,
properties, financial condition or results of operations of the
Company or (b) the ability of the Company to perform its
obligations under this Agreement.
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" Nasdaq " means the Nasdaq Global Market or
the Nasdaq Capital Market.
·
The terms " register ," " registered
," and " registration " refer to a registration effected by
preparing and filing a Registration Statement or statements in
compliance with the Securities Act and pursuant to Rule 415
and the declaration or ordering of effectiveness of such
Registration Statement by the SEC.
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" Registrable Securities " means the Shares
and any shares of capital stock issued or issuable from time to
time (with any adjustments) in exchange for or otherwise with
respect to the Shares.
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" Registration Period " means the period
between the Required Effective Date (as defined in SECTION 12.2)
and the earlier of (i) the date on which all of the
Registrable Securities have been sold and no further Registrable
Securities may be issued in the future, or (ii) the date on
which all the Registrable Securities may be immediately sold
without registration and without restriction (including without
limitation as to volume by each holder thereof) as to the number of
Registrable Securities to be sold, pursuant to Rule 144 or
otherwise.
·
" Registration Statement " means a
registration statement of the Company filed under the Securities
Act.
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" Regulation D "
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