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Exhibit 1.1
SOLICITING DEALER
AGREEMENT
SOLICITING DEALER AGREEMENT,
dated as of February 13, 2008 (“ Agreement
”), between NORTH AMERICAN ROYALTY CORP., a Maryland
corporation (the “ Company ”), and ALARON
FINANCIAL SERVICES, INC., (the “ Agent
”). Each of the parties to this Agreement are referred to
herein as a “ Party ” and collectively as
the “ Parties. ”
BACKGROUND
The Company proposes to offer and sell a
minimum of 170,000 shares of Common Stock (the “
Minimum Offering Amount ”) and up to a maximum
of 800,000 shares of Common Stock (the “ Maximum
Offering Amount ”), the “ Shares
”), for a purchase price of $3.00 per Share (unless adjusted
by the mutual agreement of the Parties), pursuant to a registration
statement filed with the Securities and Exchange Commission (the
“ Commission ”) under the Securities Act
of 1933, as amended (the “ Act ”) upon
the terms and subject to the conditions as set forth herein (the
“ Offering ”).
The Company has determined to use the
services of the Agent, including other securities dealers which may
be engaged to sell the Offering by virtue of an agreement with the
Agent, as its exclusive agent to solicit subscriptions for the
Shares on a “best efforts” basis for an offering period
which extends for six (6) months following the effective date
of the Registration Statement (defined below), provided however,
that if the Minimum Offering Amount is not sold within one hundred
twenty (120) days of the effective date of the Registration
Statement, the offering period, will end on the one hundred
twentieth day after the effective date of the Registration
Statement (the “ Offering Period ”). The
Agent hereby agrees to act in such capacity and to use its best
efforts to find purchasers for the Shares in accordance with the
terms and conditions of this Agreement.
Additionally, the Agent may offer the
Shares on a wholesale basis to other qualified broker/dealers who
are members of the NASD (each a “ Selling Agent
” or “ Co-Underwriter ”), on the
offering date and subsequent thereto, subject to the foregoing and
on the conditions of a Selling Agency Agreement executed with the
Agent. A Selling Agent or a Co-Underwriter may offer Shares to the
public under the same terms and conditions as are established
herein and the laws and regulations of such jurisdiction wherein
such sale is transacted. Accompanying this Agreement is a copy of
the Company’s Registration Statement on Form S-1 (including
the Company’s Prospectus relating to the Offering) prepared
for use in conjunction with the offer and sale of the Shares (which
document as may be amended from time to time is herein referred to
as the “ Registration Statement
”).
AGREEMENT
NOW, THEREFORE, in consideration of the
mutual promises herein contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF
THE COMPANY.
The Company represents and warrants to
the Agent as follows:
(a) The Company is a corporation duly
organized, validly existing and in good standing under the laws of
Maryland, and has the power and authority to carry on its business
as conducted or proposed to be conducted by it and to hold title to
its property, which business and property is accurately and fully
described in the Registration Statement. The Company has the
corporate power and authority to execute and deliver this
Agreement, to conduct such business and to perform its obligations
hereunder and consummate the transactions contemplated by the
Offering and this Agreement.
(b) When (i) the Company has
received payment for subscriptions in accordance with the
provisions of the Registration Statement, and
(ii) certificates evidencing the Shares have been issued to
the respective subscribers therefor, the Shares will be validly
issued, fully paid and non-assessable.
(c) When the Registration Statement
becomes effective, and at all times subsequent thereto, and
including the date of the Final Closing, and during such longer
period as the prospectus forming a part of the Registration
Statement (the “ Prospectus ”) may be
required to be delivered in connection with sales by the Agent, and
during such longer period until any post-effective amendment
thereto shall become effective, the Registration Statement (and any
post-effective amendment thereto) and the Prospectus (as amended or
as supplemented if the Company shall have filed
with the Commission any amendment or
supplement to the Registration Statement or the Prospectus) will
contain all statements which are required to be stated therein in
accordance with the Act and the regulations promulgated thereunder
(the “ Regulations ”), will comply with
the Act and Regulations, and will not contain any untrue statement
of a material fact or omit to state any material fact required to
he stated therein or necessary to make the statements therein not
misleading, and no event will have occurred which should have been
set forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not then been set forth in
such an amendment or supplement; and no preliminary Prospectus, as
of the date filed with the Commission, includes any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; except that no representation or warranty
is made in this Section 1(c) with respect to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company as stated in Section 9(b)
with respect to the Agent by or on behalf of the Agent expressly
for inclusion in any preliminary Prospectus, the Registration
Statement, or the Prospectus, or any amendment or supplement
thereto.
(d) Neither the Commission nor the blue
sky or securities authority of any jurisdiction has issued an order
(a Stop Order) suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary
Prospectus, the Prospectus, the Registration Statement, or any
amendment or supplement thereto, refusing to permit the
effectiveness of the Registration Statement, or suspending the
registration or qualification of the Shares nor has any of such
authorities instituted or threatened to institute any proceedings
with respect to a Stop Order.
(e) The authorized capital stock of the
Company consists of 50,000,000 shares of Common Stock, of which
1,800,666 shares of Common Stock are issued and outstanding, and
10,000,000 shares of Preferred Stock, 78,750 of which are issued or
outstanding; 300,000 shares of Common Stock are reserved for
issuance of outstanding warrants and 787,500 shares of Common Stock
are reserved for issuance on conversion of outstanding Preferred
Stock. Each outstanding share of Common Stock is validly
authorized, validly issued, fully paid, and nonassessable, without
any personal liability attaching to the ownership thereof, and has
not been issued and is not owned or held in violation of any
preemptive rights of stockholders. There is no commitment, plan, or
arrangement to issue, and no outstanding option, warrant, or other
right calling for the issuance of, any share of capital stock of
the Company or any security or other instrument which by its terms
is convertible into, exercisable for, or exchangeable for capital
stock of the Company, except as set forth above, and as may be
properly described in the Prospectus. All sales of securities made
by the Company at any time since its inception were issued pursuant
to valid exemptions under applicable federal and state securities
laws and except for compensation paid to the Agent, no commissions
were paid and no advertising or other general solicitation was made
in connection with any of such sales.
(f) Except as disclosed in the
Registration Statement, there are no actions, suits, proceedings or
investigations pending or, to the best of the Company’s
knowledge, threatened against or affecting the Company which could
prevent or interfere with or adversely affect the execution and
delivery by the Company of this Agreement or the performance by the
Company of its obligations hereunder or the offering, issuance and
sale of the Shares, or which, individually or in the aggregate,
would have a material adverse effect on the value of the assets or
the operation of the business of the Company.
(g) Except as otherwise disclosed in the
Registration Statement, all requisite authorizations, approvals or
orders from any court, governmental or regulatory official or body
necessary to permit the Company to conduct its business as
described in the Registration Statement will have been obtained or
are in the process of being applied for prior to the date of the
Initial Closing. All requisite authorizations, approvals or orders
from any court or any governmental or regulatory official or body
necessary for the consummation by the Company of the transactions
contemplated by this Agreement will have been obtained or are in
the process of being applied for prior to the date of the Initial
Closing.
(h) This Agreement has been duly and
validly authorized, executed and delivered by the Company and
constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms, except that (i) such
enforcement may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting
creditors’ rights generally and general principals of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law) and (ii) the indemnification
provisions of this Agreement may be held to violate public policy
(under either federal or state law) in the context of the offer or
sale of securities.
(i) The Company’s execution and
delivery of this Agreement, the fulfillment of the terms set forth
herein and the consummation of the transactions contemplated herein
will not conflict with or constitute a breach of, or default under
(i) the Company’s articles of incorporation or by-laws,
(ii) any material agreement, indenture or instrument by which
the Company is bound (except to the extent such conflict, breach or
default would not have a material adverse
effect on the value of the assets or the
operation of the business of the Company), or (iii) any law,
administrative regulation or court decree (except to the extent
such conflict, breach or default would not have a material adverse
effect on the value of the assets or the operation of the business
of the Company).
(j) It is the Company’s present
intention to utilize the proceeds from the sale of the Shares
substantially in the manner set forth in the Registration
Statement. Further, the Company has no present intention to make
any material changes in its business as described in the
Registration Statement.
(k) The Company represents and warrants
that the financial statements of the Company contained in or
attached to the Registration Statement have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby, and
present fairly the financial position of the Company as of the date
indicated. In the opinion of management, all adjustments
(consisting only of normal recurring adjustments) have been made
which are considered necessary for a fair presentation of such
information for the periods presented. Except for the transactions
contemplated by the Registration Statement, there has been no
material adverse change in the condition of the Company, financial
or otherwise, from that set forth in the Registration Statement.
The accountants whose reports on the audited financial statements
are filed with the Commission as a part of the Registration
Statement are, and during the periods covered by their reports
included in the Registration Statement and the Prospectus were,
independent certified public accountants with respect to the
Company within the meaning of the Act and the Regulations. No other
financial statements are required by Form S-1 or otherwise to be
included in the Registration Statement or the Prospectus. There has
at no time been a material adverse change in the financial
condition, results of operations, business, properties, assets,
liabilities, or future prospects of the Company from the latest
information set forth in the Registration Statement or the
Prospectus, except as may be properly described in the
Prospectus.
(l) On the date hereof, and at the date
of the Initial Closing, the Company is not or will not be an
“investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
(m) Neither the Company nor any of its
affiliates have received or are entitled to receive, directly or
indirectly, any compensation or other benefit in connection with
the Offering including, but not limited to, any commission or
similar fee, except as described in the Registration
Statement.
(n) The Company has not paid or awarded,
and will not pay or award, directly or indirectly, any commission
or other compensation to any person engaged to render investment
advice to a potential purchaser of the Shares as an inducement to
advise the purchase of the Shares, except as such commissions or
other compensation may be paid or awarded to the Agent in
accordance with this Agreement in connection with the sale of the
Shares as described in the Registration Statement.
(o) Any written or oral information
provided to prospective purchasers of Shares by authorized
representatives of the Company other than the Agent (“
Authorized Persons ”) will not contain any
untrue statement of a material fact or, when taken together with
the information set forth in the Registration Statement, omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
(p) The sale of the Shares has been duly
and validly authorized by the Company. There are no outstanding
options, warrants or other rights to purchase or otherwise acquire
any Shares of the Company or any security convertible into such
Shares, except as described in the Registration
Statement.
(q) The Company has good and marketable
leasehold title to all real properties and good title to all other
properties and assets which the Prospectus indicates are owned by
it, free and clear of all liens, security interests, pledges,
charges, encumbrances, and mortgages except as may be properly
described in the Prospectus or such as in the aggregate do not now
have and will not in the future have a material adverse effect upon
the operations, business, properties, or assets of the Company. To
the knowledge of the Company, no real property owned, leased,
licensed, or used by the Company lies in an area which is, or to
the knowledge of the Company will be, subject to zoning, use, or
building code restrictions which would prohibit, and no state of
facts relating to the actions or inaction of another person or
entity or his or its ownership, leasing, licensing, or use of any
real or personal property exists or will exist which would prevent,
the continued effective ownership, leasing, licensing, or use of
such real property in the business of the Company as presently
conducted or as the Prospectus indicates it contemplates
conducting, except as may be properly described in the Prospectus,
or such as in the aggregate do not now have and will not in the
future have a material adverse effect upon the operations,
business, properties, or assets of the Company or except properties
being developed by the Company for which appropriate zoning and
permitting has not yet been obtained.
(r) Neither the Company nor any other
party is now or is expected by the Company to be in violation or
breach of, or in default with respect to complying with, any
material provision of any contract, agreement, instrument, lease,
license, arrangement, or understanding which is material to the
Company, and each such contract, agreement, instrument, lease,
license, arrangement, and understanding is in full force and is the
legal, valid, and binding obligation of the parties thereto and is
enforceable as to them in accordance with its terms. The Company
enjoys peaceful and undisturbed possession under all leases and
licenses under which it is operating. The Company is not a party to
or bound by any contract, agreement, instrument, lease, license,
arrangement, or understanding, or subject to any charter or other
restriction, which has had or which the Company believes may in the
future have a material adverse effect on the financial condition,
results of operations, business, properties, assets, liabilities,
or future prospects of the Company. The Company is not in violation
or breach of, or in default with respect to, any terns of its
Articles of Incorporation (or other charter document) or
by-laws.
(s) All patents, patent applications,
trademarks, trademark applications, trade names, service marks,
copyrights, franchises, technology, know-how and other intangible
properties and assets (all of the foregoing being herein called
“ Intangibles ”) that the Company owns or
has pending, or under which it is licensed, are in good standing
and uncontested. Except as otherwise disclosed in the Registration
Statement, the Intangibles are owned by the Company, free and clear
of all liens, security interests, pledges, and encumbrances. To the
knowledge of the Company, the Company has not infringed and is not
infringing any Intangibles of others and the Company has not
received notice of infringement with respect to asserted
Intangibles of others. To the knowledge of the Company, there is no
infringement by others of Intangibles of the Company. To the
knowledge of the Company, there is no Intangible of others which
has had or may in the future have a materially adverse effect on
the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of the
Company.
(t) Neither the Company nor any
director, officer, agent, employee, or other person acting with
authority on behalf of the Company has, directly or indirectly:
used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended
by the International Anti-Bribery Act of 1998; or made any bribe,
rebate, payoff, influence payment, kickback, or other unlawful
payment.
(u) The Company has obtained from each
officer, director and person or entity that beneficially owns
shares of the Company’s Common Stock prior to the date hereof
his, her or its enforceable written agreement that for a period of
12 months from the effective date of the Registration Statement,
he, she or it will not, without the Agent’s prior written
consent, sell or undertake any related action described in such
written agreement with respect to the Company’s Common Stock
owned by such person prior to the Effective Date; provided,
however, that this section (u) does not apply to the Series A
Preferred Shares issued by the Company which are convertible into
the Company’s Common Stock. Any sales by officer, director
and person or entity that beneficially owns the Company’s
Common Stock prior to the date hereof will comply with applicable
exemptions from the registration requirements of the Act. Public or
private sales of Common Stock by such persons shall not include
gifts, intra-family transfers or transfers for estate planning
purposes, which shall be exempt from the foregoing
provisions.
(v) Except as otherwise provided in the
Registration Statement, no person or entity has the right to
require registration of shares of Common Stock or other securities
of the Company because of the filing or effectiveness of the
Registration Statement.
(w) The Company is eligible to use Form
S-1 for registration of the Shares.
(x) No unregistered securities of the
Company, of an affiliate of the Company or of a predecessor of the
Company have been sold within three years prior to the date hereof,
except as described in the Registration Statement.
(y) The Company has filed all federal
and state tax returns which are required to be filed by it and has
paid all taxes shown on such returns and all assessments received
by it to the extent such taxes have become due. All taxes with
respect to which the Company is obligated have been paid or
adequate accruals have been set up to cover any such unpaid
taxes.
(z) None of the Company, any of its
directors, officers, or beneficial owners of 10% or more of any
class of its equity securities, or any of their respective
affiliates, including the Company (or any other person serving in
a
similar capacity): (i) has been
convicted within ten years prior to the date hereof of any crime or
offense involving the purchase or sale of any security, involving
the making of a false statement with the Commission, or arising out
of such person’s conduct as an underwriter, broker, dealer,
municipal securities dealer or investment adviser; (ii) is
subject to any order, judgment or decree of any court of competent
jurisdiction temporarily or preliminarily enjoining or restraining,
or is subject to any order, judgment, or decree of any court of
competent jurisdiction, entered within five years prior to the date
hereof, permanently enjoining or restraining such person from
engaging in or continuing any conduct or practice in connection
with the purchase or sale of any security, involving the making of
a false filing with the Commission or arising out of the conduct of
the business of an underwriter, broker, dealer, municipal
securities dealer or investment adviser; (iii) is subject to
an order of the Commission entered pursuant to section 15(b),
15B(a), or 15B(c) of the Securities Exchange Act of 1934 (“
Exchange Act ”), or is subject to an order of
the Commission entered pursuant to section 203(e) or (f) of
the Investment Advisers Act of 1940; (iv) is suspended or
expelled from membership in, or suspended or barred from
association with a member of, an exchange registered as a national
securities exchange pursuant to section 6 of the Exchange Act, an
association registered as a national securities association under
section 15A of the Exchange Act, or a Canadian securities exchange
or association for any act or omission constituting conduct
inconsistent with just and equitable principles of trade;
(v) is subject to a United States Postal Service false
representation order entered within five years prior to the date
hereof; or is subject to a restraining order or preliminary
injunction entered under section 3007 of title 39, United States
Code, with respect to any conduct alleged to constitute postal
fraud; (vi) has been or has been named as an underwriter of
any securities covered by any registration statement which is the
subject of any pending proceeding or examination under
Section 8 of the Act, or is the subject of any refusal order
or stop order entered thereunder within five years prior to the
date hereof; (vii) has taken or failed to take any other act
or are subject to any other order or proceedings, that would make
unavailable any limited offering exemption from registration or
qualification requirements of federal or state securities laws;
(viii) has filed a registration statement that is the subject
of a currently effective stop order entered pursuant to any
state’s securities law within five years prior to the date
hereof; (ix) has been convicted within five years prior to the
date hereof of any felony or misdemeanor in connection with the
offer, purchase or sale of any security or any felony involving
fraud or deceit, including but not limited to forgery,
embezzlement, obtaining money under false pretenses, larceny or
conspiracy to defraud; (x) is currently subject to any state
administrative enforcement order or judgment entered by that
state’s securities administrator within five years prior to
the date hereof or is subject to any state’s administrative
enforcement order or judgment in which fraud or deceit, including
but not limited to making untrue statements of material facts and
omitting to state material facts, was found and the order or
judgment was entered within five years prior to the date hereof;
(xi) is subject to any state’s administrative
enforcement order or judgment that prohibits, denies or revokes the
use of any exemption from registration in connection with the
offer, purchase or sale of securities; or (xii) is currently
subject to any order, judgment or decree of any court of competent
jurisdiction temporarily or preliminarily restraining or enjoining,
or is subject to any order, judgment or decree of any court of
competent jurisdiction permanently restraining or enjoining, such
party from engaging in or continuing any conduct or practice in
connection with the purchase or sale of any security or involving
the making of any false filing with the state entered within five
years prior to the date hereof.
(aa) Other than the Agent, the Company
has not contracted with any person to act as a finder or investment
adviser in connection with these transactions described herein and
the Company agrees to indemnify the Agent with respect to any claim
for such a finder’s fee in connection with the Offering. No
director or principal shareholder of the Company is a member of a
broker-dealer registered with the National Association of
Securities Dealers, Inc. (the “ NASD ”)
or an employee or associated member of a broker-dealer registered
with the NASD.
2. REPRESENTATIONS AND WARRANTIES OF
THE AGENT.
The Agent hereby represents, warrants
and agrees with the Company that:
(a) The Agent is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Illinois, with the corporate power and authority to
conduct its business, to execute and deliver this Agreement, and to
perform the obligations contemplated herein.
(b) This Agreement has been duly and
validly authorized, executed and delivered by the Agent and
constitutes the valid, binding and enforceable agreement of the
Agent, except to the extent that (i) such enforcement may be
subject to the effect of bankruptcy, insolvency, organization,
moratorium, fraudulent conveyance and other similar laws relating
to or affecting the rights of creditors generally and general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and (ii) the
indemnification provisions of this Agreement may be held to violate
public policy (under either federal or state law) in the context of
the offer or sale of securities.
(c) The Agent’s execution and
delivery of this Agreement, and the performance of its obligations
hereunder, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, its
articles of incorporation or bylaws, any agreement or instrument to
which it is a party or by which it is bound, or any judgment,
decree, order or, to its knowledge, any statute, rule or regulation
applicable to Agent.
(d) As of the date of the Registration
Statement, the information contained in the Registration Statement
relating to the Agent, if any, does not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(e) The Agent is (i) a
broker-dealer duly registered pursuant to the provisions of the
Exchange Act; (ii) a member in good standing of the NASD; and
(iii) duly registered as a broker-dealer under the applicable
statutes and regulations of each state in which the Shares will be
offered and sold, except such states in which the Agent is exempt
from registration or such registration is not otherwise required.
The Agent will maintain all its registrations in good standing
throughout the term of the Offering and the Agent will comply with
all statutes and other requirements of law applicable to it with
respect to its brokerage activities within those jurisdictions. To
the extent required by applicable law, any individual who
participates in the offer or sale of the Shares as the
Agent’s agent or registered representative will be duly
registered as a registered representative or principal of the Agent
pursuant to the provisions of the NASD rules.
(f) Neither Agent nor any of its
directors or officers nor any beneficial owner of 10% or more of
any class of its equity securities, nor any of their respective
affiliates (nor any other person serving in a similar capacity):
(i) has been convicted within ten years prior to the date
hereof of any crime or offense involving the purchase or sale of
any security, involving the making of a false statement with the
Commission, or arising out of such person’s conduct as an
underwriter, broker, dealer, municipal securities dealer or
investment adviser; (ii) is subject to any order, judgment or
decree of any court of competent jurisdiction temporarily or
preliminarily enjoining or restraining, or is subject to any order,
judgment, or decree of any court of competent jurisdiction, entered
within five years prior to the date hereof, permanently enjoining
or restraining such person from engaging in or continuing any
conduct or practice in connection with the purchase or sale of any
security, involving the making of a false filing with the
Commission or arising out of the conduct of the business of an
underwriter, broker, dealer, municipal securities dealer or
investment adviser; (iii) is subject to an order of the
Commission entered pursuant to section 15(b), 15B(a), or 15B(c) of
the Exchange Act, or is subject to an order of the Commission
entered pursuant to section 203(e) or (f) of the Investment
Advisers Act of 1940; (iv) is suspended or expelled from
membership in, or suspended or barred from association with a
member of, an exchange registered as a national securities exchange
pursuant to section 6 of the Exchange Act, an association
registered as a national securities association under section 15A
of the Exchange Act, or a Canadian securities exchange or
association for any act or omission constituting conduct
inconsistent with just and equitable principles of trade;
(v) is subject to a United States Postal Service false
representation order entered within five years prior to the date
hereof; or is subject to a restraining order or preliminary
injunction entered under section 3007 of title 39, United States
Code, with respect to any conduct alleged to constitute postal
fraud; (vi) has been or has been named as an underwriter of
any securities covered by any registration statement which is the
subject of any pending proceeding or examination under
Section 8 of the Act, or is the subject of any refusal order
or stop order entered thereunder within five years prior to the
date hereof; (vii) has taken or failed to take any other act
or are subject to any other order or proceedings, that would make
unavailable any limited offering exemption from registration or
qualification requirements of federal or state securities laws;
(viii) has filed a registration statement that is the subject
of a currently effective stop order entered pursuant to any
state’s securities law within five years prior to the date
hereof; (ix) has been convicted within five years prior to the
date hereof of any felony or misdemeanor in connection with the
offer, purchase or sale of any security or any felony involving
fraud or deceit, including but not limited to forgery,
embezzlement, obtaining money under false pretenses, larceny or
conspiracy to defraud; (x) is currently subject to any state
administrative enforcement order or judgment entered by that
state’s securities administrator within five years prior to
the date hereof or is subject to any state’s administrative
enforcement order or judgment in which fraud or deceit, including
but not limited to making untrue statements of material facts and
omitting to state material facts, was found and the order or
judgment was entered within five years prior to the date hereof;
(xi) is subject to any state’s administrative
enforcement order or judgment that prohibits, denies or revokes the
use of any exemption from registration in connection with the
offer, purchase or sale of securities; or (xii) is currently
subject to any order, judgment or decree of any court of
competent
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