SECURITIES PURCHASE AGREEMENT

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

     This SECURITIES PURCHASE AGREEMENT (the “ Agreement ”), dated as of September 17 ^th , 2009, is made by and among Vitran Corporation Inc., a corporation organized under the laws of the Province of Ontario (the “ Company ”), and each of the purchasers (individually, a “ Purchaser ” and collectively the “ Purchasers ”) set forth on the execution pages hereof (each, an “ Execution Page ” and collectively the “ Execution Pages ”).

BACKGROUND

     A. The Company and each Purchaser are executing and delivering this Agreement in reliance upon the exemption from (i) securities registration afforded by the provisions of Rule 506 of Regulation D (“ Regulation D ”), as promulgated by the United States Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ Securities Act ”) and (ii) prospectus and registration requirements under Canadian Securities Laws (as defined below).

     B. Upon the terms and conditions stated in this Agreement, the Company desires to issue and sell to each of the Purchasers, and each Purchaser desires to purchase, shares of the Company’s common stock, no par value (the “ Common Stock ”). The Common Stock is sometimes referenced herein as the “Securities” and each share of Common Stock may individually be referred to herein as a “Security.”

     C. In connection with the Closing pursuant to this Agreement, the parties hereto will execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit A (the “ Registration Rights Agreement ”), pursuant to which the Company has agreed to provide certain registration rights under the Securities Act and the rules and regulations promulgated thereunder, and applicable state securities laws. This Agreement, the Registration Rights Agreement and all other agreements executed and delivered in connection herewith and therewith are collectively referred to herein as the “ Transaction Documents .”

     NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchasers, intending to be legally bound, hereby agree as follows:

ARTICLE 1
PURCHASE AND SALE OF SECURITIES.

     1.1 Purchase and Sale of Securities . Subject to the terms and conditions hereof, at the Closing (as defined in Section 1.2 below), the Company shall issue and sell to each Purchaser, and each Purchaser, severally and not jointly, shall purchase from the Company, the number of shares of Common Stock as is set forth on such Purchaser’s Execution Page, for a purchase price (as to each Purchaser, the “ Purchase Price ”) per share equal to $8.50.

     1.2 The Closing . Subject to the satisfaction (or waiver) of the conditions set forth in Articles 6 and 7 below, the closing of the transactions contemplated hereby (the “ Closing ”) shall take place at the offices of Drinker Biddle & Reath LLP at One Logan Square, 18th & Cherry Streets, Philadelphia, Pennsylvania 19103 or by the remote exchange of executed documents and other deliverables, at 10:00 a.m., Philadelphia, Pennsylvania time on the business day next following the date of this Agreement, or at such other time or place as the Company and the Purchasers may mutually agree (the “ Closing Date ”).

ARTICLE 2
PURCHASER’S REPRESENTATIONS AND WARRANTIES.

     Each Purchaser severally, but not jointly, represents and warrants to the Company as follows:

     2.1 Purchase for Own Account, Etc. Such Purchaser is purchasing the Securities for such Purchaser’s own account and not with a present view towards the public sale or distribution thereof, except (a) pursuant to sales that are exempt from the registration requirements of (x) the Securities Act and (y) any applicable securities laws of each of the provinces of Canada and the respective regulations and rules made under those securities laws together with all applicable policy statements, blanket orders and rulings of the securities commissions or regulatory authority in each of the provinces of Canada (collectively the “ Securities Commissions ”) and all discretionary orders or rulings, if any, of the Securities Commissions made in connection with transactions contemplated by the Transaction Documents, together with applicable published policy statements of the Canadian Securities Administrators and the Toronto Stock Exchange (“ TSX ”) (collectively, the “ Canadian Securities Laws ”), and/or (b) sales registered under the Securities Act or qualified for resale in accordance with Canadian Securities Laws. Such Purchaser understands that such Purchaser must bear the economic risk of this investment indefinitely, unless the Securities are registered pursuant to the Securities Act and any applicable state securities or blue sky laws or an exemption from such registration is available, and that the Company has no present intention of registering the resale of any such Securities other than as contemplated by the Registration Rights Agreement. Notwithstanding anything in this Section 2.1 to the contrary, by making the representations herein, such Purchaser reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption from the registration requirements under the Securities Act and otherwise in accordance with all applicable laws.

     2.2 Accredited Investor Status . Such Purchaser is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D and under Canadian Securities Laws.

     2.3 Reliance on Exemptions . Such Purchaser understands that the Securities are being offered and sold to such Purchaser in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and registration and prospectus requirements under Canadian Securities Laws and that the Company is relying upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Securities. Such Purchaser shall notify the Company immediately of any change in any

representation, warranty, covenant or other information relating to such Purchaser or any beneficial purchaser set out in this Agreement which takes place prior to Closing.

     2.4 Information . Such Purchaser has been furnished all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities which have been specifically requested by such Purchaser. Neither such inquiries nor any other investigation conducted by such Purchaser or any of its representatives shall modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in Article 3 below. Such Purchaser understands that such Purchaser’s investment in the Securities involves a high degree of risk, and that such Purchaser is solely responsible for obtaining such legal, financial and tax advice as it considers appropriate in connection with the execution, delivery and performance by it of this Agreement and the transactions contemplated hereunder. Without limiting the foregoing, Purchaser acknowledges that the information on Section 2.4 of the Disclosure Schedule has been disclosed to Purchaser and is planned to be disclosed publicly prior to the Closing.

     2.5 Investment Decision . Such Purchaser has the knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of the investment hereunder and is able to bear the economic risk of loss of that investment and is capable of making an informed investment decision.

     2.6 Offering Documents . Such Purchaser has not received a prospectus, an offering memorandum, sales or advertising literature or similar document in connection with the transactions contemplated hereby and has not received, nor has such Purchaser requested, nor does such Purchaser need to receive, any other document.

     2.7 Governmental Review . Such Purchaser understands that no United States federal or state agency or any other government or governmental agency, including any Canadian federal or provincial agency or Securities Commission, has passed upon or made any recommendation or endorsement of the Securities.

     2.8 Authorization; Enforcement . This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered on behalf of such Purchaser and are legal, valid and binding agreements of such Purchaser enforceable against such Purchaser in accordance with their respective terms.

     2.9 Residency . Such Purchaser is a resident of the jurisdiction set forth under such Purchaser’s name on the Execution Page hereto executed by such Purchaser, and such address was not created and is not being used solely for the purpose of acquiring the Securities. Such Purchaser is not a resident of Canada.

     2.10 Short Sales and Confidentiality Prior To The Date Hereof . Other than the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Purchaser, executed any transaction, including short sales, in the securities of the Company during the period commencing from the time that such Purchaser was first contacted by the Company or any other person disclosing the material terms of the transactions contemplated hereunder until the date

hereof. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future.

     2.11 Securities Law Filings . If required by applicable securities legislation, policy or order of the any securities regulator or stock exchange, the Securities Act or applicable U.S. state securities laws, Canadian Securities Laws or otherwise required by any securities commission or other regulatory authority, such Purchaser will promptly execute, deliver and file or assist the Company in filing the reports, undertakings and other documents with respect to the issuance and registration of the Securities so required. Subject to Section 4.2, such Purchaser understands that the Company may be required by law or otherwise to disclose to certain regulatory authorities the identity of and other information regarding such Purchaser.

Each Purchaser acknowledges and agrees that the foregoing representations and warranties are made by it with the intention that they may be relied upon by the Company and its legal counsel in determining the Purchaser’s eligibility to purchase the Securities under applicable securities legislation. Each Purchaser further agrees that by accepting delivery of the Securities on the Closing Date, it shall be representing and warranting that the foregoing representations and warranties are true and correct as at the Closing Date with the same force and effect as if they had been made by such Purchaser at the time of Closing and that they each shall survive the purchase by the Purchaser of the Securities and shall continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of such Securities.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

     Except as set forth on a Disclosure Schedule executed and delivered by the Company to each Purchaser (the “ Disclosure Schedule ”) or as set forth in the Select SEC Documents (as defined in Section 3.8 below), other than what is set forth in the Risk Factors of any such Select SEC Documents or any other disclosure that is forward looking or prospective in nature in any such Select SEC Documents, the Company represents and warrants to each Purchaser as follows:

     3.1 Organization and Qualification . The Company and each of its “ Subsidiaries ” (which for purposes of this Agreement means the principal operating subsidiaries of the Company referenced in its Annual Report (as defined in Section 3.8 below) is a corporation organized and existing in good standing under the laws of the jurisdiction in which it is incorporated or organized, and has the corporate power to own its properties and to carry on its business as now being conducted. The Company is qualified to do business and in good standing in the Province of Ontario, Canada, and each of its Subsidiaries is qualified as a foreign corporation 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 and where the failure to so qualify or to be in good standing would have a Material Adverse Effect. For purposes of this Agreement, “ Material Adverse Effect ” means any effect which, individually or in the aggregate with all other effects, reasonably would be expected to be materially adverse to (i) the Securities,

(ii) the ability of the Company to perform its obligations under this Agreement or the other Transaction Documents or (iii) the business, operations, properties, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. The Company has no Subsidiaries except as set forth in Section 3.1 of the Disclosure Schedule, each of which is, except as set forth on such schedule, a direct or indirect wholly-owned subsidiary of the Company. For purposes of this Agreement, “ subsidiary ” shall have the meaning ascribed to it in the Business Corporations Act (Ontario) (the “ OBCA ”).

     3.2 Authorization; Enforcement . (i) The Company and, with respect to each of the other Transaction Documents to which any Subsidiary is a party, each of such Subsidiaries, has the corporate power and authority to enter into and perform their obligations under this Agreement and the other Transaction Documents including, in the case of the Company, to issue and sell the Common Stock in accordance with the terms hereof; (ii) the execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and each of its Subsidiaries, as applicable, and the consummation by them of the transactions contemplated hereby and thereby (including, without limitation, in the case of the Company, the issuance of the Common Stock) have been duly authorized by the Company’s and each of its Subsidiaries’ Board of Directors, as applicable, and no further consent or authorization of the Company or any of its Subsidiaries, their Boards of Directors, or any committee of their Boards of Directors is required, and (iii) this Agreement constitutes, and, upon execution and delivery by the Company and each of its Subsidiaries, as applicable, of the other Transaction Documents, such Transaction Documents will constitute, valid and binding obligations of the Company and each of its Subsidiaries, as applicable, enforceable against the Company and its Subsidiaries in accordance with their terms. Neither the execution, delivery or performance by the Company or any of its Subsidiaries of their obligations under this Agreement or the other Transaction Documents, nor the consummation by them of the transactions contemplated hereby or thereby (including, without limitation, in the case of the Company, the issuance of the Common Stock) requires any consent or authorization of the Company’s stockholders, or the Subsidiaries.

     3.3 Capitalization . The capitalization of the Company as of the date hereof, including the authorized capital stock, the number of shares issued and outstanding, the number of shares issuable and reserved for issuance pursuant to the Company’s stock option plans, the number of shares issuable and reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, any shares of capital stock and the number of shares of Common Stock to be issued hereunder is set forth in Section 3.3 of the Disclosure Schedule. All of such outstanding shares of capital stock have been, or upon issuance in accordance with the terms of any such exercisable, exchangeable or convertible securities will be, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the stockholders of the Company or any liens or encumbrances, in each case contained in the Company’s Articles of Incorporation or Bylaws (as such terms are defined below), in the OBCA, or any contract to which the Company is a party. Except as set forth in Section 3.3 of the Disclosure Schedule, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, nor, aside from the transactions

contemplated herein, are any such issuances, contracts, commitments, understandings or arrangements contemplated, (ii) there are no contracts, commitments, understandings or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the Securities Act (except the Registration Rights Agreement); (iii) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem or otherwise acquire any security of the Company or any of its Subsidiaries; and (iv) the Company does not have any shareholder rights plan, “poison pill” or other anti-takeover plans or similar arrangements. Section 3.3 of the Disclosure Schedule sets forth all of the securities or instruments issued by the Company or any of its Subsidiaries that contain anti-dilution or similar provisions, and, except as and to the extent set forth thereon, the sale and issuance of the Securities will not trigger any anti-dilution adjustments to any such securities or instruments. The Company has furnished or made available to each Purchaser true and correct copies of the Company’s Articles of Incorporation as in effect on the date hereof (“ Articles of Incorporation ”), the Company’s Bylaws as in effect on the date hereof (the “ Bylaws ”), and all other instruments and agreements governing securities convertible into or exercisable or exchangeable for capital stock of the Company, all of which instruments and agreements are set forth in Section 3.3 of the Disclosure Schedule. The Company’s Articles of Incorporation may be amended in accordance with the OBCA and subject to any shareholder consent or shareholder voting requirements set forth therein or in the Company’s Articles of Incorporation or Bylaws. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or any such Subsidiary.

     3.4 Issuance of Securities . The Common Stock has been duly authorized and, upon issuance in accordance with the terms of this Agreement, (i) will be validly issued, fully paid and non-assessable shares of common stock of the Company, free from all taxes, liens, claims and encumbrances pursuant to the Company’s Articles of Incorporation or Bylaws, or the OBCA, and (ii) will not be subject to preemptive rights, rights of first refusal or other similar rights of stockholders of the Company or any other person pursuant to the Company’s Articles of Incorporation, Bylaws, the OBCA, or any contract to which the Company is a party, and (iii) will not impose personal liability on the holder thereof pursuant to the OBCA. Presuming the truth and accuracy of the representations and warranties of each Purchaser herein, and the representations and warranties of the Placement Agents pursuant to Section 6.4 below, the issuance by the Company of the Securities is exempt from registration under the Securities Act and from the registration and prospectus requirements of Canadian Securities Laws.

     3.5 No Conflicts; Consents . The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the Company’s Articles of Incorporation or Bylaws, (ii) assuming that the proceeds of the sale and issuance of the Securities are used in accordance with Section 4.5 hereof, conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment (including, without limitation, the triggering of any anti-dilution provisions), acceleration or cancellation of, any agreement,

indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including United States federal, and state securities laws, rules and regulations, Canadian Securities Laws and rules and regulations of any other self-regulatory organizations to which either the Company or its securities are subject) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected (except, with respect to clauses (ii) and (iii), for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations that would not, individually or in the aggregate, have a Material Adverse Effect). Except (u) as may be required under the Securities Act in connection with the performance of the Company’s obligations under the Registration Rights Agreement, (v) for the filing of a report on Form 45-106F1, prepared and executed in accordance with National Instrument 45-106 — Prospectus and Registration Exemptions , if required, (w) for the filing of a Form D with the SEC, (x) as may be required for compliance with applicable state securities or “blue sky” laws, (y) the approval of the Nasdaq Global Select Market (the “ National Market ”) and the TSX, or (z) as otherwise set forth in Section 3.5 of the Disclosure Schedule, the Company is not required to obtain any consent, approval, authorization or order of, or make any filing or registration with, any court or governmental agency or any regulatory or self-regulatory agency or other third party (including, without limitation, pursuant to any Material Contract (as defined in Section 3.7 below)) in order for it to execute, deliver or perform any of its obligations under this Agreement or any of the other Transaction Documents

     3.6 Reporting Issuer Status . The Company is a “reporting issuer” or the equivalent thereof in good standing under the applicable Canadian Securities Laws in each of the provinces of Canada and has no reasonable grounds to believe that it will not continue to be a reporting issuer in each such jurisdiction and is in compliance with all applicable Canadian Securities Laws in all material respects and has made all necessary filings (including, without limitation, the filing of all continuous disclosure materials) required to be filed by the Company pursuant to the Canadian Securities Laws.

     3.7 Compliance . The Company is not in violation of its Articles of Incorporation, Bylaws or other organizational documents and no Subsidiary is in violation of any of its organizational documents. Neither the Company nor any of its Subsidiaries is in default (and no event has occurred that with notice or lapse of time or both would put the Company or any of its Subsidiaries in default) under, nor has there occurred any event giving others (with notice or lapse of time or both) any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party (including, without limitation, the Material Contracts), except for actual or possible violations, defaults or rights that would not, individually or in the aggregate, have a Material Adverse Effect. The businesses of the Company and its Subsidiaries are not being conducted, and shall not be conducted in violation of any law, ordinance or regulation of any governmental entity, except where such violation or violations, would not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company, nor any of its Subsidiaries, nor to the knowledge of the Company any director, officer, agent, employee or other person acting on behalf of the Company or any Subsidiary has, in the course of his actions for, or on behalf of, the Company or any Subsidiary, used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity, made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds,

violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 or the Corruption of Foreign Public Officials Act, or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee. The Company and its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, provincial or foreign regulatory authorities that are material to the conduct of its business, and neither the Company nor any of its Subsidiaries has received any notice of proceeding relating to the revocation or modification of any such certificate, authorization or permit.

     3.8 SEC Documents, Financial Statements . Since December 31, 2007, the Company has timely filed (within applicable extension periods) all reports, schedules, forms, statements and other documents, including, without limitation, all current Reports on Form 8-K, required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, the “ SEC Documents ”). True and complete copies of the SEC Documents are available on the SEC website. 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. Except as set forth on Section 3.8 of the Disclosure Schedule, none of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings made prior to the date hereof). As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC applicable with respect thereto. Such financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“ GAAP ”), consistently applied, during the periods involved (except as may be otherwise indicated in such financial statements or the notes thereto or, in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal, immaterial year-end audit adjustments). Except as set forth in the financial statements of the Company included in the Select SEC Documents (as defined below), the Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to the date of such financial statements and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under GAAP to be reflected in such financial statements, which liabilities and obligations referred to in clauses (i) and (ii), individually or in the aggregate, are not material to the financial condition or operating results of the Company. To the extent required by the rules and regulations of the SEC applicable thereto, the Select SEC Documents contain a complete and accurate list of all undischarged Material Contracts (as defined below) to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any

of the properties or assets of the Company or any Subsidiary is subject. Except as set forth in the Select SEC Documents, none of the Company, its Subsidiaries or, to the knowledge of the Company, any of the other parties thereto is in breach or violation of any Material Contract, which breach or violation would have a Material Adverse Effect. For purposes of this Agreement, “ Material Contracts ” means the contracts, agreements, leases and other instruments required to be filed pursuant to Item 601 of Regulation S-K promulgated under the Exchange Act and “ Select SEC Documents ” means the Company’s (A) Proxy Statement for its 2009 Annual Meeting, (B) Annual Report on Form 10-K for the fiscal year ended December 31, 2008, as amended (the “ Annual Report ”), and (C) all Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed since December 31, 2008. No other information provided by or on behalf of the Company to the Purchasers that is not included in the Select SEC Documents, and that when read with the Select SEC Documents, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

     3.9 Internal Accounting Controls . The Company and each of its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosures controls and procedures to ensure that material information relating to the Company, including its Subsidiaries, is made known to the certifying officers by others within those entities, particularly during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the Annual Report and the Company’s most recently filed Quarterly Report on Form 10-Q (each such date, an “ Evaluation Date ”). The Company presented in the Annual Report and its most recently filed Quarterly Report on Form 10-Q the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the respective Evaluation Date. Since the Evaluation Date for the Annual Report, there have been no significant changes in the Company’s disclosure controls and procedures (as such term is defined in Item 307 of Regulation S-K under the Exchange Act) or, to the Company’s knowledge, in other factors that could significantly affect the Company’s internal controls, except as expressly disclosed in the Select SEC Documents as to changes that occurred after the Evaluation Date.

     3.10 Absence of Certain Changes . Except as set forth in the Select SEC Documents, since December 31, 2008, there has been no material adverse change and no material adverse development in the business, properties, operations, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. Except as disclosed in Section 3.10 of the Disclosure Schedule, since December 31, 2008, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business or (iii) had any capital expenditures in excess of $100,000

outside the ordinary course of business. The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any bankruptcy or receivership law, nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings with respect to the Company or any of its Subsidiaries.

     3.11 Transactions With Affiliates . Except as set forth in the Select SEC Documents, none of the officers, directors, or employees of the Company or any of its Subsidiaries is presently a party to any transaction with the Company or any of its Subsidiaries (other than for ordinary course services solely in their capacity as officers, directors or employees), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such officer, director or employee or any corporation, partnership, trust or other entity in which any such officer, director, or employee has an ownership interest of five percent or more or is an officer, director, trustee or partner that would be required by applicable securities laws to be disclosed (each a “ Related Party Transaction ”). The Select SEC Documents accurately describe the material terms of each Related Party Transaction.

     3.12 Absence of Litigation . Except as disclosed in the Select SEC Documents or in Section 3.12 of the Disclosure Schedule, there are no actions, suits, proceedings, inquiries or investigations before or by any court, public board, government agency, self-regulatory organization or body (including, without limitation, the SEC or any of the Securities Commissions) pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company, any of its Subsidiaries, or any of their respective directors or officers in their capacities as such, which, if determined adversely to the Company would, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, there are no facts which, if known by a potential claimant or governmental authority, could reasonably be expected to give rise to a claim or proceeding which, if asserted or conducted with results unfavorable to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect.

     3.13 Intellectual Property . Each of the Company and its Subsidiaries owns or is duly licensed (and, in such event, has sufficient rights to grant sublicenses) to use all patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, permits, inventions, discoveries, processes, scientific, technical, engineering and marketing data, object and source codes, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and other similar rights and proprietary knowledge (collectively, “ Intangibles ”) necessary for the conduct of its business as now being conducted and as presently contemplated to be conducted in the future. Section 3.13 of the Disclosure Schedule sets forth a list of all patents, patent applications, trademarks, service marks, trademark and service mark applications, trade names, registered copyrights, copyright applications, licenses and permits material to the Company and owned and/or used by the Company in its business. To the knowledge of the Company, neither the Company nor any Subsidiary of the Company infringes or is in conflict with any right of any other person with respect to any third party Intangibles. Neither the Company nor any of its Subsidiaries has received written notice of any pending conflict with or infringement upon such third party Intangibles. Neither the Company nor any of its Subsidiaries

has entered into any consent agreement, indemnification agreement, forbearance to sue or settlement agreement with respect to the validity of the Company’s or its Subsidiaries’ ownership of or right to use its Intangibles. No registration relating to any Intangible material to the Company has lapsed, expired or been abandoned or canceled or is the subject of cancellation or other adversarial proceedings, and all applications therefor are pending and in good standing. The Company and its Subsidiaries have complied, in all material respects, with their respective contractual obligations relating to the protection of the Intangibles used pursuant to licenses. To the knowledge of the Company, no person is infringing on or violating the Intangibles owned or used by the Company or its Subsidiaries.

     3.14 Title . The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and merchantable title to all personal property owned by them that is material to the conduct of the business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except (i) liens and encumbrances granted by the Company and its Subsidiaries in favor of the holders of its senior indebtedness, and (ii) such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries. Any real property and facilities held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not, individually or in the aggregate, material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.

     3.15 Tax Status . Except as set forth in the Select SEC Documents, the Company and each of its Subsidiaries has made or filed all foreign, U.S. and Canadian federal, state, provincial and local income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges that are shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes claimed to be due by the taxing authority of any jurisdiction, and the Company knows of no basis for any such claim. The Company has not executed a waiver with respect to any statute of limitations relating to the assessment or collection of any foreign, federal, state, provincial or local tax. Except as disclosed in Section 3.15 of the Disclosure Schedule, none of the Company’s tax returns is presently being audited by any taxing authority.

     3.16 Key Employees . Each of the Company’s directors and officers and any Key Employee (as defined below) is currently serving the Company in the capacity disclosed in the Select SEC Documents. To the knowledge of the Company, no Key Employee is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each Key Employee does not subject the Company or any of its Subsidiaries to any material liability with respect to any of the foregoing matters. No Key Employee has, to the knowledge of the

Company and its Subsidiaries, any intention to terminate or limit his employment with, or services to, the Company or any of its Subsidiaries, nor is any such Key Employee subject to any constraints which would cause such employee to be unable to devote his full time and attention to such employment or services. For purposes of this Agreement, “ Key Employee ” means Richard Gaetz and Sean Washchuk or any other employee or agent who assumes or performs any of the duties of either individual.

     3.17 Employee Relations . Neither the Company nor any of its Subsidiaries is involved in any material union labor dispute nor, to the knowledge of the Company or any of its Subsidiaries, is any such dispute threatened. The Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers or contractors which would result in a Material Adverse Effect. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer (as defined in Rule 501(f) under the Securities Act) has notified the Company that such officer intends to leave the Company or otherwise terminate such officer’s employment with the Company. The Company and its Subsidiaries are in compliance with all U.S. federal and state, and Canadian federal and provincial, laws and regulations respecting employment and employment practices, benefits, terms and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, result in a Material Adverse Effect.

     3.18 Insurance . The Company and each of its Subsidiaries has in force fire, property, casualty, vehicle, and other insurance policies, with extended coverage by insurers of recognized financial responsibility, sufficient in amount to allow it to replace any of its material properties or assets which might be damaged or destroyed or sufficient to cover liabilities to which the Company may reasonably become subject, and such types and amounts of other insurance with respect to its business and properties, on both a per occurrence and an aggregate basis, as are customarily carried by persons engaged in the same or similar business as the Company. No default or event has occurred that could give rise to a default under any such policy. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.

     3.19 Environmental Matters . There is no environmental litigation or other environmental proceeding pending or, to the knowledge of the Company or any of its Subsidiaries, threatened by any governmental regulatory authority or others with respect to the current or any former business of the Company or any of its Subsidiaries or any partnership or joint venture currently or at any time affiliated with the Company or any of its Subsidiaries. To the knowledge of the Company or any of its Subsidiaries, no state of facts exists as to environmental matters or Hazardous Substances (as defined below) that involves the reasonable likelihood of a material capital expenditure by the Company or any of its Subsidiaries or that may otherwise have a Material Adverse Effect. To the knowledge of the Company or any of its Subsidiaries, no Hazardous Substances have been treated, stored or disposed of, or otherwise deposited, in or on the properties owned or leased by the Company or any of its Subsidiaries or by any partnership or joint venture currently or at any time affiliated with the Company or any of its Subsidiaries in violation of any applicable environmental laws, except for such violations as

have been remediated in accordance with such laws, or where such violations would not, either individually or in the aggregate, result in a Material Adverse Effect. The environmental compliance programs of the Company and each of its Subsidiaries comply in all material respects with all environmental laws, whether foreign, federal, state, provincial or local, currently in effect. For purposes of this Agreement, “ Hazardous Substances ” means any substance, waste, contaminant, pollutant or material that has been determined by any governmental authority to be capable of posing a risk of injury to health, safety, property or the environment.

     3.20 Solvency . Based on the financial condition of the Company as of the date hereof, (i) the Company’s fair saleable value of its assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature; (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business for the current fiscal year as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, and projected capital requirements and capital availability thereof; and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its debt when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).

     3.21 Listing . Since December 31, 2008, the Company’s common stock has been and currently is listed for trading on the National Market and the TSX. The Company is not in violation of the listing requirements of the National Market or the TSX, does not reasonably anticipate that the Common Stock will be delisted by the National Market or the TSX for the foreseeable future, and has not received any notice regarding the possible delisting of the Common Stock from the National Market or the TSX. The Company has secured the listing of the common stock to be issued pursuant to this Agreement on the National Market and the TSX and on each other national securities exchange, automated quotation system or over-the-counter market upon which shares of Common Stock are currently listed (subject to official notice of issuance).

     3.22 Form S-3 Eligibility . The Company is eligible to register the resale of its Common Stock on a registration statement on Form S-3 under the Securities Act. To the knowledge of the Company, there exist no facts or circumstances that would prohibit or delay the preparation and filing of a registration statement on Form S-3 with respect to the Registrable Securities (as defined in the Registration Rights Agreement). The Company has no basis to believe that its past or present independent public auditors will withhold their consent to the inclusion, or incorporation by reference, of their audit opinion concerning the Company’s financial statements which are included in the Registration Statement required to be filed pursuant to the Registration Rights Agreement.

     3.23 Anti-Takeover Provisions . The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement or plan) or other

similar anti-takeover provision under its Articles of Incorporation or the laws of the jurisdiction of its incorporation (including, without limitation, the Business Corporations Act (Ontario)) which is or could become applicable to any Purchaser as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and any and all Purchaser’s ownership of the Securities.

     3.24 Acknowledgment Regarding Each Purchaser’s Purchase of the Securities . The Company acknowledges and agrees that each Purchaser is acting solely in the capacity of arm’s length purchaser with respect to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, and that no Purchaser is (i) an officer or director of the Company, (ii) to the knowledge of the Company, based solely on reports filed with the SEC, an “affiliate” of the Company (as defined in Rule 144 under the Securities Act (including any successor rule, “ Rule 144 ”)) or (iii) to the knowledge of the Company, based solely on reports filed with the SEC, a “beneficial owner” of more than 5% of the Common Stock (as defined for purposes of Rule 13d-3 of the Exchange Act). The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement or the other Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by a Purchaser or any of its representatives or agents in connection with this Agreement or the other Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such Purchaser’s purchase of the Securities. The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.

     3.25 No General Solicitation or Integrated Offering; Private Placement . Neither the Company nor any distributor, agent or affiliate participating on the Company’s behalf in the transactions contemplated hereby (if any) nor any person acting for the Company, or any such distributor, agent or affiliate has conducted any “general solicitation” (as such term is defined in Regulation D) with respect to any of the Securities being offered hereby. Neither the Company nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration of the Securities being offered hereby under the Securities Act, cause this offering of Securities to be integrated with any prior offering of securities of the Company for purposes of the Securities Act, which result of such integration would require registration under the Securities Act, or that would require stockholder approval under applicable stockholder approval provisions.

     3.26 No Brokers . The Company has taken no action that would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments by any Purchaser relating to this Agreement or the transactions contemplated hereby except for dealings with the Placement Agents, whose commissions and fees will be paid by the Company.

     3.27 Acknowledgment Regarding Securities . The Company’s directors and executive officers have studied and fully understand the nature of the Securities being sold hereunder, including the dilution that such issuance will have on the ownership interests of other stockholders. Taking the foregoing into account, the Company’s Board of Directors has determined in its good faith business judgment that the issuance of the Securities hereunder and

the consummation of the other transactions contemplated hereby are in the best interests of the Company and its stockholders.

     3.28 Indebtedness and Other Contracts . Except as disclosed in the SEC Documents or in Section 3.28 of the Disclosure Schedule, neither the Company nor any of its Subsidiaries (i) has any outstanding Indebtedness (as defined below), (ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, or (iii) is in violation of any term of or in default under any contract, agreement or instrument relating to any Indebtedness which violation or default would result in a Material Adverse Effect.

          (a) For purposes of this Agreement: (x) “ Indebtedness ” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations (as defined below) in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above;

          (b)  “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and

          (c)  “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

     3.29 Off-Balance Sheet Arrangements . There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other off-balance sheet entity that is

required to be disclosed by the Company in its Exchange Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.

     3.30 Manipulation of Price . The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) except as provided for in the Transaction Documents, sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, or (iii) except as provided for in the Transaction Documents, paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.

     3.31 Transfer Taxes . On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be paid in connection with the sale and transfer of the Securities to be sold to each Purchaser hereunder will be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.

     3.32 Sarbanes-Oxley Act . The Company is in compliance in all material respects with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof.

     3.33 Disclosure . All information relating to or concerning the Company and/or any of its Subsidiaries set forth in this Agreement or provided to the Purchasers pursuant to Section 2.3 hereof or otherwise in connection with the transactions contemplated hereby, when read with the Select SEC Documents, is true and correct in all material respects and the Company has not omitted to state any material fact necessary in order to make the statements made herein or therein, in light of the circumstances under which they were made, not misleading. Except for the transactions contemplated by the Transaction Documents, no event or circumstance has occurred or exists with respect to the Company or its Subsidiaries or their respective businesses, properties, operations or financial conditions, which has not been publicly disclosed but, under applicable law, rule or regulation, would be required to be disclosed by the Company in a registration statement filed or to be declared effective on the date hereof by the Company under the Securities Act with respect to a primary issuance of the Company’s securities. Each press release issued by the Company during the 12 months preceding the date of this Agreement did not at the time of release contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.

     3.34 Investment Company . The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “ Investment Company Act ”). The Company shall conduct its business in a manner so that it will not become subject to the Investment Company Act.

     3.35 Subsidiaries . All of the direct and indirect subsidiaries of the Company are wholly owned by the Company directly or indirectly. The Company owns, directly or indirectly,

all of the capital stock or other equity interests of each Subsidiary free and clear of any liens except for liens in favor of the Company’s lenders, and all the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights, in each case contained in the Company’s Articles of Incorporation or Bylaws, the OBCA, or any contract to which the Company is a party.

     3.36 Independent Accountants . KPMG LLP, who have expressed their opinion with respect to the audited financial statements of the Company to be included as a part of the Registration Statement, are independent public accountants as required by the Exchange Act and the rules and regulations of the Commission thereunder.

     3.37 Shell Company Status . The Company is not a shell company or an issuer identified in Rule 144(i)(1).

ARTICLE 4
COVENANTS.

     4.1 Commercially Reasonable Efforts . The parties shall use their respective commercially reasonable efforts timely to satisfy each of the conditions described in Articles 5, 6 and 7 of this Agreement.

     4.2 Form D; Blue Sky Laws . The Company shall file with the SEC a Form D with respect to the Securities as required under Regulation D and provide a copy thereof to each Purchaser promptly after such filing. The Company shall, on or before the Closing Date, take such action as the Company shall reasonably determine is necessary to qualify the Securities for sale to each Purchaser pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States or obtain exemption therefrom. On or before 8:30 a.m., New York Time, on the first Business Day (as defined in the Registration Rights Agreement) following the execution of this Agreement, the Company shall issue a press release and file a Form 8-K with the SEC concerning this Agreement and the transactions contemplated hereby, which Form 8-K shall attach this Agreement and its Exhibits as exhibits to such Form 8-K (the “ 8-K Filing ”). From and after the 8-K Filing, the Company hereby acknowledges that no Purchaser shall be in possession of any material non-public information received from the Company, any of its Subsidiaries or any of its respective officers, directors, employees or agents, which is not disclosed in the 8-K Filing. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents not to, provide any Purchaser with any material non-public information regarding the Company or any of its Subsidiaries from and after the 8-K Filing (a) without the express written consent of such Purchaser, (b) unless required by any agreement between the Company and the Purchaser, or (c) except as is conveyed to the Purchaser pursuant to Sections 3.6 and 3.16 of the Registration Rights Agreement. In the event of a breach of the foregoing covenant by the Company, any of its Subsidiaries or any of its or their respective officers, directors, employees and agents, if the Company does not make a public disclosure of such information within one Trading Day of a Purchaser’s delivery of a written notice of such breach to the Company, which notice shall include in reasonable detail the information that such Purchaser believes constitutes material non-public information, then in addition to any other remedy provided herein or in the other

Transaction Documents, such Purchaser shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such material non-public information without the prior approval by the Company, its Subsidiaries or any of its or their respective officers, directors, employees or agents. The Purchaser shall provide a copy of the disclosure to the Company for its review no later than the second business day prior to release by the Purchaser. No Purchaser shall have any liability to the Company, its Subsidiaries or any of its or their respective officers, directors, employees, shareholders or agents for any such disclosure. Subject to the foregoing, neither the Company nor any Purchaser shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided , however , that the Company shall be entitled, without the prior approval of any Purchaser, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and as is required by applicable law and regulations, or (ii) as otherwise required by law or the rules of the TSX and/or the National Market. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the SEC or any regulatory agency, or the stock exchanges or automated quotation systems upon which the Company’s shares of Common Stock are traded, including, without limitation, any and all discounted issuance rules, if applicable, without the prior written consent of such Purchaser, except (i) for disclosure thereof in the exhibits to the 8-K Filing or (ii) as required by law or the regulations of the stock exchange or automatic quotation system upon which the Company’s shares of Common Stock are then traded or any order of any court or other governmental agency, in which case the Company shall provide such Purchaser with notice and a copy of such disclosure, and (iii) for disclosure in the registration statement to be filed pursuant to the Registration Rights Agreement.

     4.3 Report of Exempt Distribution . The Company shall, if required, file, with the applicable Securities Commission, a report of exempt distribution as required under Section 6.1 of National Instrument 45-106 within 10 days of the issuance of the Common Stock to the Purchasers.

     4.4 Reporting Status . During the period from the date of this Agreement until the later of (i) one year following the date of this Agreement, and (ii) the date on which all Securities may be resold by the Purchaser in reliance on Rule 144 of the Securities Act, the Company shall timely file all reports required to be filed with the SEC pursuant to the Exchange Act, and the Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would permit such termination. In addition, the Company shall, during the same time period, (A) take all actions necessary to meet the “registrant eligibility” requirements set forth in the general instructions to Form S-3 or any successor form thereto, to continue to be eligible to register the resale of its Common Stock on a registration statement on Form S-3 under the Securities Act, and (B) use its commercially reasonable efforts to continue to be a “reporting issuer” in each of the provinces of Canada.

     4.5 Use of Proceeds . The Company shall use the proceeds from the sale and issuance of the Securities to repay certain of its existing senior indebtedness.

     4.6 Listing . During the period from the date of this Agreement until the later of (i) one year following the date of this Agreement, and (ii) the date on which all Securities may be resold by the Purchaser in reliance on Rule 144 of the Securities Act, the Company shall do all things necessary to ensure the Common Stock to be issued pursuant to this Agreement are listed for trading on the TSX and National Market and shall use its commercially reasonable efforts to continue the listing and trading of its Common Stock on (i) the TSX and (ii) the National Market, the Nasdaq Global Market, the Nasdaq Capital Market (the “ SmallCap Market ”), the New York Stock Exchange (the “ NYSE ”) or the American Stock Exchange (the “ AMEX ”) (each market listed in (ii), a “ U.S. Exchange ”), and shall comply in all respects with the reporting, filing and other obligations under or applicable to the bylaws or rules of the Financial Industry Regulatory Authority (“ FINRA ”) such exchanges, or such electronic system, as applicable. The Company shall, during the same time period, promptly provide to each Purchaser copies of any written notices it receives regarding the continued eligibility of the Common Stock for trading on any securities exchange or automated quotation system on which securities of the same class or series issued by the Company are then listed or quoted, if any.

     4.7 Corporate Existence . During the period from the date of this Agreement until the later of (i) one year following the date of this Agreement, and (ii) the date on which all Securities may be resold by the Purchaser in reliance on Rule 144 of the Securities Act, the Company shall maintain its corporate existence, and in the event of an amalgamation, plan of arrangement, merger, consolidation or sale of all or substantially all of the Company’s assets, the Company shall ensure that the surviving or successor entity in such transaction assumes the Company’s obligations under this Agreement and the other Transaction Documents and the agreements and instruments entered into in connection herewith and therewith.

     4.8 No Integrated Offerings . The Company shall not make any offers or sales of any security (other than the Securities) under circumstances that would cause this offering of the Securities to be integrated with any other offering of securities by the Company in a manner which would cause Rule 506 to be unavailable for the issuance of the Securities to the Purchaser, or that would require stockholder approval to be obtained for the issuance of the Securities.

     4.9 Legal Compliance . The Company shall conduct its business and the business of its Subsidiaries in compliance with all laws, ordinances or regulations of governmental entities applicable to such businesses, except where the failure to do so would not have a Material Adverse Effect.

     4.10 Compliance with Canadian Securities Law . The Purchaser may not trade the Common Stock on the TSX, and may not make an offer to Canadian residents, in each case, other than in accordance with Canadian Securities Laws.

     4.11 Shareholders Rights Plan . No claim shall be made or enforced by the Company or any other person that any Purchaser is an “Acquiring Person” under any shareholders rights plan or similar plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under this Agreement or any other Transaction Documents or under any other agreement between the Company and the Purchasers.

     4.12 Pledge of Securities . The Company acknowledges and agrees that the Securities may be pledged by any Purchaser in connection with a bona fide margin agreement or other loan or financing arrangement that is secured by the Securities, provided such pledge is made in compliance with all applicable securities laws. Subject to the foregoing, the pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Purchaser effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document.

     4.13 Lock-Up Agreements . The Company shall use commercially reasonable efforts to cause each party identified on Section 4.13 of the Disclosure Schedule to execute and deliver lock-up agreements in the form attached hereto as Exhibit B (the “ Lock-Up Agreements ”).

     4.14 Material Information; Notices . In the event the Company has made a good faith determination that the matters relating to any notice required to be provided to any Purchaser pursuant to any Transaction Document (each a “ Required Notice ”), constitute material non-public information, the Company shall give written notice (the “ Material Event Notice ”) to the person designated on the signature page of each Purchaser for the receipt of any Material Event Notice, or such other person as such Purchaser shall designate in writing to the Company (the “ Material Notice Recipient ”). Until the earlier to occur of (x) the date on which the Material Notice Recipient gives written notice to the Company authorizing the delivery of such Required Notice to the Purchaser (the “ Material Event Notice Acceptance ”) or (y) the date on which the material non-public information which is the subject of the Required Notice is publicly disclosed in a filing with the SEC, the Company shall be relieved of any obligation imposed by this Agreement or any other Transaction Document to deliver the Required Notice to the Purchaser and such Purchaser shall be deemed to have waived the Purchaser’s rights hereunder to receive such Required Notice until such time as the Material Notice Recipient delivers such Material Event Notice Acceptance to the Company. Notwithstanding anything in any Transaction Document to the contrary, the Company covenants and agrees that it shall not provide the Required Notice to any Purchaser until the earlier to occur of (x) such time as the Material Event Notice Acceptance is received by the Company or (y) the material non-public information which is the subject of the Required Notice has been disclosed in a filing with the SEC. Any Purchaser may, as set forth on its signature page hereto or otherwise by written notice to the Company, elect to waive its right to appoint a Material Notice Recipient under this Section 4.14 for such Purchaser; provided , that in such event the Company shall not be relieved from the performance of any of its obligations with respect to such Purchaser under this Agreement, including, without limitation, the obligations set forth in Section 4.2 with respect to the Company’s delivery of notices to such Purchaser.

ARTICLE 5
SECURITIES TRANSFER MATTERS.

     5.1 Transfer or Resale . Each Purchaser understands that except as provided in the Registration Rights Agreement, the sale or resale of the Securities have not been and are not being registered under the Securities Act, any U.S. state securities laws or Canadian Securities Laws, and the Securities may not be transferred unless (A) the transfer is made pursuant to and as set forth in an effective registration statement under the Securities Act covering the Securities

(including in conformity with applicable prospectus delivery requirements, if any); or (B) sold or transferred under and in compliance with Rule 144 and Canadian Securities Laws or pursuant to another available exemption from the registration requirements of the Securities Act of the prospectus requirements of Canadian Securities Laws and such Purchaser shall have delivered to the Company an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the Securities to be sold or transferred may be sold or transferred either (i) pursuant to an exemption from such registration requirements or the registration and prospectus requirements of Canadian Securities Laws; or (ii) in compliance with Rule 144 and Canadian Securities Laws; or (C) sold or transferred to an affiliate of such Purchaser that agrees to sell or otherwise transfer the Securities only in accordance with the provisions of this Section 5.1 , provided there is no change in the beneficial ownership of the Securities resulting from such sale or transfer to the affiliate. Each Purchaser understands that neither the Company nor any other person is under any obligation to register such Securities under the Securities Act or any state securities laws (other than pursuant to the terms of the Registration Rights Agreement). Notwithstanding the foregoing or anything else contained herein to the contrary, (x) the Securities may be pledged as collateral in connection with a bona fide margin account or other lending arrangement, provided such pledge is consistent with applicable laws, rules and regulations and (y) during the period beginning with the Closing and ending on the date which is four months and one day after the Closing, the Common Stock may not be traded by the Purchaser on the TSX or to a resident of Canada, in each case, other than in accordance with Canadian Securities Laws.

     5.2 Legends . Each Purchaser understands that, until such time as the Securities, as contemplated by the Registration Rights Agreement or otherwise, may be sold by such Purchaser without limitation or restriction pursuant to Rule 144, the certificates for the Securities will upon issuance bear restrictive legends in substantially the following form, and such other legends as may be required by applicable law:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED OTHER THAN PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) PURSUANT TO RULE 144 UNDER SAID ACT OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND, IN EACH CIRCUMSTANCE, PROVIDED AN OPINION OF COUNSEL SELECTED BY THE HOLDER AND REASONABLY ACCEPTABLE TO THE ISSUER, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT IS DELIVERED TO THE ISSUER. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS.

The securities represented by this certificate are listed on the Toronto Stock Exchange (“TSX”); however, the said securities cannot be traded through the facilities of TSX since they are not freely transferable, and consequently any certificate representing such securities is not “good delivery” in settlement of transactions on TSX.

     5.3 Legend Removal . The legends set forth above shall be removed and the Company shall issue a physical certificate without such legends to the holder of any Security upon which it is stamped or issue by electronic delivery at the applicable balance account at the Depository Trust Company (“DTC”), if: (i) the Security is registered for resale under the Securities Act (including registration pursuant to Rule 415 thereunder and provided that, if the Purchaser is selling pursuant to the effective registration statement registering the Shares for resale, the Purchaser agrees to only sell such Shares during such time that such registration statement is effective and such Purchaser is not aware or has not been notified by the Company that such registration statement has been withdrawn or suspended, and only as permitted by such registration statement); (ii) such holder provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that such Shares are eligible for sale without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such securities and without volume or manner-of-sale restrictions and that a public sale or transfer of such Security may be made without registration under the Securities Act; or (iii) such holder is not an affiliate of the Company and provides the Company with reasonable assurances that such Security can be sold without limitation or restriction under Rule 144 or has been, or is to be otherwise, sold in compliance with Rule 144 without volume or manner of sale restrictions and provides the Company with an opinion to that effect from legal counsel reasonably acceptable to the Company. Following the earlier of (i) the Effective Date of the Registration Statement (as set forth in the Registration Rights Agreement) or (ii) Rule 144 becoming available for the resale of Securities, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to the Securities and without volume or manner-of-sale restrictions, the Company shall cause its counsel to issue to the Transfer Agent the legal opinion referred to in the Irrevocable Transfer Agent Instructions. Any fees (with respect to the Transfer Agent, Company Counsel or otherwise) associated with the issuance of such opinion or the removal of such legend shall be borne by the Company. Following the Effective Date, or at such earlier time as a restrictive legend is no longer required for certain Securities, the Company will no later than three (3) Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent (with notice to the Company) of a legended certificate representing such Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer) and an opinion of counsel to the extent required by Article 5, (such third Trading Day, the “Legend Removal Date”) deliver or cause to be delivered to such Purchaser a certificate representing such Securities that is free from all restrictive legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Article 5.

     5.4 Irrevocable Transfer Agent Instructions . Upon the earlier of (i) the Effective Date of the Registration Statement or (ii) the date on which the Purchaser is eligible to sell the Securities under Rule 144, the Company shall issue irrevocable instructions to its transfer agent, and any subsequent transfer agent in the form of Exhibit C attached hereto (the “Irrevocable

Transfer Agent Instructions”) with regard to the removal of the legends consistent with the provisions of Section 5.3 . The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5.4 or instructions that are not contradictory therewith will be given by the Company to its transfer agent in connection with this Agreement, and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the other Transaction Documents and applicable law. The Company acknowledges that a breach by it of its obligations under this Article 5 will cause irreparable harm to a Purchaser. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5.4 will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 5.4 , that a Purchaser shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required.

     5.5 Transferees Bound by Transaction Documents . Notwithstanding the provisions of this Article 5 and subject to Section 4.10 hereof, no Purchaser may transfer the Securities, other than in an ordinary brokerage transaction on a U.S. Exchange, unless the transferee agrees in writing to be bound by all of the provisions of the Transaction Documents, and it shall be a condition to any such transfer that any such transferee execute and deliver appropriate documentation, in form and substance reasonably satisfactory to the Company, to such effect. For greater certainty, such documentation shall include a covenant from such transferee that it shall not sell or otherwise dispose of any of the Securities except in compliance with all applicable securities laws, and that, without limiting the foregoing, such transferee shall not sell or otherwise dispose of any of the Securities on the TSX or to any person resident in Canada for a period of four months and one day following the Closing, in each case, other than in accordance with Canadian Securities Laws.

ARTICLE 6
CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.

     The obligation of the Company hereunder to issue and sell the Securities to each Purchaser hereunder is subject to the satisfaction, at or before the Closing Date, of each of the following conditions as to such Purchaser, provided that such conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion:

     6.1 Execution of Transaction Documents . Each Purchaser shall have executed such Purchaser’s Execution Page to this Agreement and each other Transaction Document to which such Purchaser is a party and delivered the same to the Company.

     6.2 Payment of Purchase Price . Each Purchaser shall have delivered the full amount of such Purchaser’s Purchase Price to the Company by wire transfer in accordance with the Company’s written wire instructions.

     6.3 Purchaser’s Representations and Warranties True; Covenants Performed . The representations and warranties of each Purchaser shall be true and correct as of the date when made and 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 shall be true and correct as of such date), and such Purchaser shall have performed, satisfied and complied with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Purchaser at or prior to the Closing Date.

     6.4 No Legal Prohibition . No statute, rule, regulation, executive order, decree, ruling, injunction, action or proceeding shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which restricts or prohibits the consummation of any of the trans