AMENDED AND RESTATED
STANDBY EQUITY DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED STANDBY EQUITY DISTRIBUTION AGREEMENT dated as of the
3rd day of February 2006 (the "Agreement") between CORNELL CAPITAL
PARTNERS, LP,
a Delaware limited partnership (the "Investor"), and HEALTHRENU
MEDICAL, INC., a
corporation organized
and existing
under the laws of the
State of Nevada (the
"Company").
WHEREAS,
on May 23, 2005,
the parties
hereto entered into the original
Standby Equity
Distribution
Agreement. The parties
desire that this Agreement
amend and restate the original Standby Equity Distribution
Agreement.
WHEREAS,
the parties desire that, upon the terms and subject to the
conditions contained
herein, the Company
shall issue and sell to the Investor,
from time to time as provided herein, and the Investor shall purchase
from the
Company up to Ten Million Dollars ($10,000,000) of the Company's common stock,
par value $0.001 per share (the "Common Stock"); and
WHEREAS,
such investments will
be made in reliance upon the provisions of
Regulation D ("Regulation D") of the Securities Act of 1933, as
amended, and the
regulations
promulgated thereunder
(the "Securities
Act"), and or upon such
other exemption from the registration requirements of the Securities Act
as may
be available with respect to any or all of the investments to be
made hereunder.
WHEREAS,
the Company has
engaged Monitor
Capital, Inc. (the "Placement
Agent"), to act as the
Company's exclusive
placement agent in
connection with
the sale of the Company's Common Stock to the Investor hereunder
pursuant to the
Placement Agent
Agreement dated May 23, 2005 by and among the Company, the
Placement Agent and the Investor (the "Placement Agent
Agreement").
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE I.
Certain Definitions
Section
1.1. "Advance"
shall mean the portion
of the Commitment
Amount
requested by the Company in the Advance Notice.
Section
1.2. "Advance
Date" shall mean the
first (1st) Trading Day after
expiration of the applicable Pricing Period for each Advance.
Section
1.3. "Advance
Notice" shall mean a
written notice in the form of
Exhibit A attached hereto to the Investor executed by an officer of the
Company
and setting forth the Advance amount that the Company requests from
the Investor
and the Advance Date.
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Section
1.4. "Advance Notice Date" shall mean each date the Company
delivers to the
Investor an Advance
Notice requiring
the Investor to
advance
funds to the Company,
subject to the terms of this Agreement. No Advance Notice
Date shall be less than five (5) Trading Days after the prior Advance Notice
Date.
Section
1.5. "Bid Price" shall
mean, on any date,
the closing bid
price
(as reported by Bloomberg L.P.) of the Common Stock on the
Principal Market
or
if the Common Stock is not traded on a Principal Market, the highest reported
bid price for the Common Stock, as furnished by the National Association of
Securities Dealers, Inc.
Section
1.6. "Closing" shall mean one of the closings of
a purchase and
sale of Common Stock pursuant to Section 2.3.
Section
1.7. "Commitment
Amount" shall mean the aggregate amount of up to
Ten Million Dollars
($10,000,000)
which the Investor has
agreed to provide to
the Company in order to purchase the Company's Common Stock pursuant to the
terms and conditions of this Agreement.
Section
1.8. "Commitment
Period" shall mean the
period commencing on the
earlier to occur of (i) the Effective Date, or (ii) such earlier date as the
Company and the
Investor may
mutually agree in writing, and expiring on the
earliest to occur of (x) the date on which the Investor
shall have made
payment
of Advances pursuant
to this Agreement in
the aggregate amount
of Ten Million
Dollars ($10,000,000),
(y) the date this
Agreement is
terminated pursuant
to
Section 2.4,
or (z) the date
occurring twenty-four (24) months after the
Effective Date.
Section
1.9. "Common
Stock" shall mean the
Company's common
stock, par
value $0.001 per share.
Section
1.10. "Condition Satisfaction Date" shall have the meaning
set
forth in Section 7.2.
Section
1.11. "Damages" shall
mean any loss, claim,
damage, liability,
costs and expenses (including, without limitation, reasonable attorney's fees
and disbursements and costs and expenses of expert witnesses and
investigation).
Section
1.12. "Effective Date"
shall mean the date on which the SEC first
declares effective
a Registration Statement registering the resale of the
Registrable Securities as set forth in Section 7.2(a).
Section
1.13. Intentionally Omitted.
Section
1.14. "Exchange
Act" shall mean the
Securities
Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
Section
1.15. "Material Adverse Effect" shall mean any condition,
circumstance, or situation that would prohibit or otherwise
materially interfere
with the ability of the Company to enter into and perform any of
its obligations
under this Agreement
or the Registration Rights Agreement in any material
respect.
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Section
1.16. "Market Price" shall mean the lowest VWAP of the Common
Stock during the Pricing Period.
Section
1.17. "Maximum Advance Amount" shall be Three Hundred Fifty
Thousand Dollars ($350,000) per Advance Notice.
Section
1.18. "NASD" shall mean the National
Association
of Securities
Dealers, Inc.
Section
1.19. "Person" shall mean an individual, a corporation, a
partnership, an association, a trust or other entity or
organization,
including
a government or political subdivision or an agency or
instrumentality thereof.
Section
1.20. "Placement Agent" shall mean Monitor Capital, Inc., a
registered broker-dealer.
Section
1.21. "Pricing Period" shall mean the five (5) consecutive
Trading
Days after the Advance Notice Date.
Section
1.22. "Principal
Market" shall mean the
Nasdaq National
Market,
the Nasdaq SmallCap Market, the American Stock Exchange,
the OTC Bulletin
Board
or the New York Stock Exchange, whichever is at the time the
principal trading
exchange or market for the Common Stock.
Section
1.23. "Purchase Price"
shall be set at ninety seven percent (97%)
of the Market Price during the Pricing Period.
Section
1.24. "Registrable Securities" shall mean the shares of
Common
Stock to be issued hereunder in respect of which the Registration
Statement has
not been declared effective by the SEC.
Section
1.25. "Registration
Rights Agreement" shall mean the Registration
Rights Agreement dated
May 23, 2005,
regarding the filing of the Registration
Statement for the resale of the Registrable Securities, entered
into between the
Company and the Investor.
Section
1.26. "Registration Statement" shall mean a registration
statement
on Form S-1 or
SB-2 (if use of such form is then available to the Company
pursuant to the rules of the SEC and, if not, on such other form
promulgated by
the SEC for which the Company then qualifies and which counsel for the
Company
shall deem appropriate, and which form shall be available
for the resale of the
Registrable Securities
to be registered thereunder in accordance with the
provisions of this
Agreement and the
Registration
Rights Agreement, and in
accordance with the intended method of distribution of such
securities), for the
registration of the resale by the Investor of the Registrable
Securities
under
the Securities Act.
Section
1.27. "Regulation D" shall have the meaning set forth in the
recitals of this Agreement.
Section
1.28. "SEC" shall mean the Securities and Exchange Commission.
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Section
1.29. "Securities Act" shall have the meaning set forth in the
recitals of this Agreement.
Section
1.30. "SEC
Documents"
shall mean Annual
Reports on Form 10-KSB,
Quarterly Reports
on Form 10-QSB, Current Reports on Form 8-K and Proxy
Statements of the Company as supplemented to May 23, 2005,
filed by the
Company
for a period of at least twelve (12) months immediately preceding May 23, 2005
or the Advance
Date, as the case may be, until such time as the Company no
longer has an
obligation
to maintain the effectiveness of a Registration
Statement as set forth in the Registration Rights Agreement.
Section
1.31. "Trading Day" shall mean any day
during which the New York
Stock Exchange shall be open for business.
Section
1.32. "VWAP" shall
mean the volume weighted average price of the
Company's Common Stock as quoted by Bloomberg, LP.
ARTICLE II.
Advances
Section
2.1. Advances.
Upon the terms and conditions set forth herein (including, without
limitation, the
provisions of Article
VII hereof), the
Company may request an
Advance by the
Investor by the
delivery of an Advance
Notice. The number of
shares of Common Stock that the Investor shall purchase pursuant to
each Advance
shall be determined by dividing the amount of the Advance by the
Purchase Price.
No fractional shares shall be issued. Fractional shares shall be rounded
to the
next higher whole number of shares. The aggregate maximum amount of
all Advances
that the Investor
shall be obligated
to make under this
Agreement shall not
exceed the Commitment Amount.
Section
2.2. Mechanics.
(a) Advance Notice. At
any time during the Commitment Period, the
Company may deliver an Advance Notice to the Investor, subject to
the conditions
set forth in Section
7.2; provided,
however, the amount for each Advance as
designated by the Company in the applicable Advance Notice, shall not be more
than the Maximum Advance Amount. The aggregate amount of the
Advances pursuant
to this Agreement shall not exceed the Commitment Amount. The Company
acknowledges that the
Investor may sell
shares of the
Company's Common
Stock
corresponding with a
particular
Advance Notice after the Advance Notice is
received by the
Investor. There
shall be a minimum of
five (5) Trading
Days
between each Advance Notice Date.
(b) Date of Delivery of Advance Notice. An Advance Notice shall be
deemed delivered on (i) the Trading Day it is received by facsimile
or otherwise
by the Investor if such notice is received prior to 12:00 noon Eastern Time,
or
(ii) the immediately
succeeding
Trading Day if it is
received by facsimile or
otherwise after 12:00 noon Eastern Time on a Trading Day or at any
time on a day
which is not a Trading Day. No Advance Notice may be deemed delivered on a day
that is not a Trading Day.
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Section
2.3. Closings. On each
Advance Date (i) the Company shall deliver
to the Investor such number of shares of the Common Stock
registered in the name
of the Investor as
shall equal (x) the amount of the Advance specified in such
Advance Notice pursuant to Section 2.1 herein, divided by (y) the
Purchase Price
and (ii) upon receipt of such shares, the Investor shall deliver to the
Company
the amount of the Advance specified in the Advance
Notice by wire
transfer of
immediately available
funds. In addition, on or prior to the Advance Date, each
of the Company
and the Investor shall deliver to the other all documents,
instruments and writings required to be delivered by either
of them pursuant to
this Agreement in
order to implement and effect the transactions contemplated
herein. To the
extent the Company has not paid the fees, expenses, and
disbursements of the
Investor in accordance with Section 12.4, or the Company's
counsel fees,
the amount of such fees, expenses, and disbursements may be
deducted by the Investor (and shall be paid to the relevant
party) directly
out
of the proceeds of the
Advance with no reduction in the amount of shares of the
Company's Common Stock to be delivered on such Advance Date.
Section
2.4. Termination of Investment. The obligation of the Investor
to
make an Advance to the
Company pursuant to this Agreement shall terminate
permanently (including
with respect to an Advance Date that has not yet
occurred) in the event
that (i) there shall occur any stop order or suspension
of the effectiveness
of the Registration Statement for an aggregate of
fifty
(50) Trading
Days, other than due to the acts of the
Investor, during the
Commitment Period,
and (ii) the Company
shall at any time fail
materially to
comply with the
requirements of Article VI and such failure is not cured within
thirty (30) days after receipt of written notice from the Investor, provided,
however, that
this termination provision shall not apply to any period
commencing upon the filing of a post-effective amendment to such Registration
Statement and ending
upon the date on which such post effective amendment is
declared effective by the SEC.
Section
2.5. Agreement to
Advance Funds. The
Investor agrees to
advance
the amount specified
in the Advance Notice
to the Company after the completion
of each of the following conditions and the other
conditions set forth
in this
Agreement:
(a) the execution and delivery by the Company, and the Investor,
of
this Agreement and the Exhibits hereto;
(b) the Investor
shall have
received the shares of Common Stock
applicable to the Advance in accordance with Section 2.3. Such shares
shall be
free of restrictive legends;
(c) the Company's
Registration Statement with respect to the resale
of the Registrable
Securities in accordance with the terms of the Registration
Rights Agreement shall have been declared effective by the SEC;
(d) the Company
shall have obtained all material permits and
qualifications
required by any
applicable state for
the offer and sale of the
Registrable Securities, or shall have the availability of
exemptions therefrom.
The sale and issuance of the Registrable Securities shall be legally
permitted
by all laws and regulations to which the Company is subject;
(e) the Company
shall have filed with
the Commission
in a timely
manner all
reports, notices and other documents required of a "reporting
company" under the Exchange Act and applicable Commission
regulations;
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(f) the fees as set forth in Section 12.4 below shall have been
paid
or can be withheld as provided in Section 2.3; and
(g) the conditions
set forth in Section 7.2 shall have been
satisfied;
(h) the Company shall have provided to the Investor an
acknowledgement, from
Ham, Langston & Brezina, LLP as to its ability to provide
all consents required
in order to file a
registration statement
in connection
with this transaction; and
(i) The Company's transfer agent shall be DWAC eligible.
Section
2.6. Lock Up Period. On the date hereof, the Company shall obtain
from each officer and director a lock-up agreement, as defined below, in the
form annexed hereto as Schedule 2.6 agreeing to only sell in
compliance with the
volume limitation of Rule 144.
Section
2.7. Hardship. In the event the Investor sells shares of the
Company's Common Stock
after receipt of an Advance Notice and the Company fails
to perform its
obligations as
mandated in Section
2.3, and specifically
the
Company fails to
deliver to the
Investor on the Advance Date the shares of
Common Stock corresponding to the applicable Advance, the Company acknowledges
that the Investor shall suffer financial hardship and therefore shall be
liable
for any and all losses, commissions, fees, or financial hardship caused
to the
Investor.
ARTICLE III.
Representations and Warranties of Investor
Investor
hereby represents and warrants to, and
agrees with, the Company
that the following are true and as of May 23, 2005 and as of each
Advance Date:
Section
3.1. Organization and Authorization. The Investor is duly
incorporated or
organized and validly existing in the jurisdiction of its
incorporation or
organization
and has all
requisite power and authority to
purchase and hold the securities issuable hereunder. The decision to invest and
the execution and delivery of this Agreement by such Investor,
the performance
by such Investor of
its obligations
hereunder and the consummation by such
Investor of the transactions contemplated hereby have been duly authorized
and
requires no other
proceedings on the part of the Investor. The undersigned has
the right, power and
authority to execute
and deliver this
Agreement and all
other instruments
(including,
without limitations, the Registration Rights
Agreement), on behalf of the Investor. This Agreement has been duly
executed and
delivered by the Investor and, assuming the execution and delivery
hereof and
acceptance thereof by the Company, will constitute the legal, valid
and binding
obligations of the Investor, enforceable against the Investor in
accordance with
its terms.
Section
3.2. Evaluation
of Risks. The Investor has such knowledge and
experience in financial tax and business matters as to be capable of
evaluating
the merits
and risks of,
and bearing the economic risks entailed by, an
investment in the
Company and of protecting its interests in connection
with
this transaction.
It recognizes that its
investment in the Company involves a
high degree of risk.
6
<PAGE>
Section
3.3. No Legal Advice From the Company. The Investor acknowledges
that it had the
opportunity to
review this Agreement and the transactions
contemplated by this
Agreement with his or its own legal counsel and investment
and tax advisors.
The Investor is
relying solely on such
counsel and advisors
and not on any
statements
or representations of the Company or any of its
representatives or
agents for legal, tax
or investment advice
with respect to
this investment,
the transactions contemplated by this Agreement or the
securities laws of any jurisdiction.
Section
3.4. Investment Purpose. The securities are being purchased by
the
Investor for its own account, and for investment purposes and without any view
to the distribution,
assignment
or resale to others or
fractionalization
in
whole or in part. The
Investor agrees not to
assign or in any way transfer the
Investor's rights to
the securities or any
interest therein and
acknowledges
that the Company will not recognize any purported assignment or transfer except
in accordance with applicable Federal and state securities laws. No
other person
has or will have a direct or indirect beneficial interest in the
securities. The
Investor agrees not to
sell, hypothecate or
otherwise transfer the
Investor's
securities unless the
securities are
registered
under Federal and
applicable
state securities laws or unless, in the opinion of counsel
satisfactory to
the
Company, an exemption from such laws is available.
Section
3.5. Accredited Investor. The Investor is an "Accredited
Investor"
as that term is defined in Rule 501(a)(3) of Regulation D of the
Securities Act.
Section
3.6. Information. The Investor and its advisors (and its
counsel),
if any, have
been furnished with all materials relating to the business,
finances and
operations of the Company and information it deemed material to
making an informed investment decision. The Investor and its advisors,
if any,
have been afforded
the opportunity to ask questions of the Company and its
management. Neither
such inquiries nor any
other due diligence
investigations
conducted by such Investor or its advisors, if any, or its
representatives shall
modify, amend
or affect the Investor's right to rely on the Company's
representations and
warranties
contained in this Agreement. The Investor
understands that its investment involves a high degree of risk.
The Investor is
in a position
regarding the
Company, which, based upon employment, family
relationship or economic bargaining power, enabled and enables such Investor
to
obtain information from the Company in order to evaluate the merits
and risks of
this investment. The Investor has sought such accounting,
legal and tax
advice,
as it has considered
necessary to make an
informed investment
decision with
respect to this transaction.
Section
3.7. Receipt of Documents. The Investor and its counsel have
received and read in their entirety: (i) this Agreement and the
Exhibits annexed
hereto; (ii) all due
diligence and other
information
necessary to verify
the
accuracy and
completeness of such
representations,
warranties and
covenants;
(iii) the Company's
Form 10-KSB for the
year ended September
30, 2004, Form
10-QSB for the period
ended December
31, 2004 and Form 10-QSB for the
period
ended March 31, 2005;
and (iv) answers to all questions the Investor submitted
to the Company
regarding an
investment in the
Company; and the Investor has
relied on the information contained therein and has not been
furnished any other
documents, literature, memorandum or prospectus.
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Section
3.8. Registration Rights Agreement. The parties have entered into
the Registration Rights Agreement dated May 23, 2005.
Section
3.9. No General Solicitation. Neither the Company, nor any of
its
affiliates, nor any
person acting on its
or their behalf,
has engaged in any
form of general
solicitation or
general advertising
(within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
the shares of Common Stock offered hereby.
Section
3.10. Not an Affiliate. The Investor is not an officer,
director
or a person that
directly, or
indirectly through one
or more
intermediaries,
controls or is controlled by, or is under common control with the
Company or any
"Affiliate" of the
Company (as that term is defined in Rule 405 of the
Securities Act).
Section
3.11. Trading
Activities. The
Investor's trading activities with
respect to the Company's Common Stock shall be in compliance with
all applicable
federal and state
securities
laws, rules and regulations and the rules and
regulations of the
Principal Market on which the Company's Common Stock is
listed or traded.
Neither the Investor
nor its affiliates has an open short
position in the Common Stock of the Company, the Investor agrees that it shall
not, and that it will cause its affiliates not to, engage in any
short sales of
or hedging
transactions with
respect to the Common
Stock, provided
that the
Company acknowledges
and agrees
that upon receipt of an Advance Notice the
Investor has the right to sell the shares to be issued to the
Investor pursuant
to the Advance Notice during the applicable Pricing Period.
ARTICLE IV.
Representations and Warranties of the Company
Except as
stated below, on the disclosure schedules attached hereto (the
"Disclosure Schedules") or in the SEC Documents (as defined
herein), the Company
hereby represents
and warrants to, and
covenants with,
the Investor that
the
following are true and correct as of May 23, 2005:
Section
4.1. Organization and Qualification. The Company is duly
incorporated or
organized and validly existing in the jurisdiction of its
incorporation or organization and has all requisite corporate power to own its
properties and to
carry on its business
as now being
conducted.
Each of the
Company and its
subsidiaries is duly
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, except to the
extent that the failure to be so qualified or be in good standing
would not have
a Material Adverse Effect on the Company and its subsidiaries taken
as a whole.
Section
4.2.
Authorization,
Enforcement,
Compliance
with
Other
Instruments. (i) The
Company has the requisite corporate power and authority to
enter into and perform this Agreement, the Registration Rights Agreement, the
Placement Agent
Agreement and any
related agreements,
in accordance with
the
terms hereof and thereof, (ii) the execution and delivery of this
Agreement, the
Registration Rights
Agreement,
the Placement
Agent Agreement and
any related
agreements by the
Company and the consummation by it of the transactions
contemplated hereby
and thereby, have been
duly authorized
by the Company's
Board of Directors and no further consent or authorization is required by the
Company, its Board of Directors or its stockholders, (iii) this Agreement, the
Registration Rights
Agreement,
the Placement
Agent Agreement and
any related
agreements have been
duly executed and
delivered by the Company, (iv) this
Agreement, the
Registration Rights Agreement, the Placement Agent Agreement
and
any related agreements
and assuming
the execution and delivery thereof and
acceptance by the Investor constitute the valid and binding
obligations of the
Company enforceable
against the Company in
accordance with their terms, except
as such enforceability
may be limited by general principles of equity or
applicable bankruptcy,
insolvency,
reorganization,
moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of creditors'
rights and remedies.
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Section
4.3. Capitalization. As of the date hereof, the authorized
capital
stock of the Company
consists of 50,000,000
shares of Common Stock, par value
$0.001 per share and 5,000,000 shares of Preferred Stock, par value $0.001 per
share, of which
1,500,000 shares are designated as Series 2000A
Convertible
Preferred Stock and 500,000 shares are designated as 2003A
Preferred Stock. As
of May 23, 2005,
29,897,531
shares of Common Stock
and 1,763 shares of Series
2000A Convertible
Preferred Stock were issued and outstanding. All of such
outstanding shares have been validly issued and are fully paid and
nonassessable
except as disclosed in the Disclosure Schedules. Except as disclosed in the SEC
Documents, no shares
of Common Stock are
subject to preemptive
rights or any
other similar rights or any liens or encumbrances suffered or permitted by the
Company. Except as
disclosed in the SEC Documents, as of the date hereof,
(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,
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 or
options, warrants,
scrip, rights to subscribe to, calls or
commitments of any
character whatsoever
relating to, or securities or rights convertible into, any
shares of capital
stock of the Company or any of its subsidiaries, (ii) there
are no outstanding debt securities (iii) there are no outstanding
registration
statements other
than on Form S-8 and (iv) there are no agreements or
arrangements under
which the Company or any of its subsidiaries is obligated to
register the sale of any of their securities under the Securities Act (except
pursuant to the
Registration Rights
Agreement).
There are no
securities
or
instruments containing
anti-dilution
or similar provisions that will be
triggered by this Agreement or any related agreement or the consummation of
the
transactions described
herein or therein.
The Company
has furnished to the
Investor, or made
available through the SEC's website at
http://www.sec.gov,
true and correct copies of the Company's Articles of Incorporation,
as amended
and as in effect on May 23, 2005 (the "Articles of Incorporation"), and the
Company's By-laws, as
in effect on May 23, 2005 (the "By-laws"), and the terms
of all securities
convertible
into or exercisable for Common Stock and the
material rights of the holders thereof in respect thereto.
Section
4.4. No Conflict. The execution, delivery and performance of
this
Agreement by the Company and the consummation by the Company of the
transactions
contemplated hereby
will not (i)
result in a
violation of the Articles of
Incorporation, any
certificate of
designations of any
outstanding
series of
preferred stock of the
Company or By-laws or (ii) conflict with or constitute a
default (or an event
which with notice or lapse of time or both would become a
default) under,
or give to others any rights of termination, amendment,
acceleration or cancellation of, any material agreement, indenture
or instrument
to which the
Company or any of its subsidiaries is a party, or result in a
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violation of any law, rule, regulation, order, judgment or decree (including
federal and state
securities laws and regulations and the rules and regulations
of the Principal
Market on which the Common Stock is quoted) applicable to the
Company or any of its subsidiaries or by which any material
property or asset of
the Company or any of
its subsidiaries
is bound or
affected and which would
cause a Material
Adverse Effect.
Except as disclosed in the SEC Documents,
neither the Company nor its subsidiaries is in violation of any term of or in
default under its Articles of Incorporation or By-laws or their organizational
charter or by-laws, respectively, or any material contract,
agreement, mortgage,
indebtedness,
indenture, instrument,
judgment, decree or order or any statute,
rule or regulation
applicable to the Company or its subsidiaries. The business
of the Company and its
subsidiaries is not
being conducted in violation of any
material law, ordinance, regulation of any governmental entity
applicable to it.
Except as specifically
contemplated by this Agreement and as required under the
Securities Act and any
applicable
state securities laws, the Company is not
required to obtain any consent, authorization or order of, or make
any filing or
registration with, any court or governmental agency in order for it to
execute,
deliver or
perform any of its obligations under or contemplated by this
Agreement or the
Registration Rights
Agreement in
accordance
with the terms
hereof or thereof. All consents, authorizations, orders, filings and
registrations which
the Company is
required to obtain or effect on or prior to
May 23, 2005 pursuant to the preceding sentence have been obtained or
effected
on or prior to May 23, 2005. The Company and its subsidiaries are
unaware of any
fact or circumstance which might give rise to any of the
foregoing.
Section
4.5. SEC Documents;
Financial Statements.
Since January 1, 2003,
the Company
has filed all
reports, schedules, forms, statements and other
documents required to be filed by it with the SEC under of the
Exchange Act. The
Company has delivered to the Investor or its representatives,
or made available
through the SEC's website at http://www.sec.gov, true and complete
copies of the
SEC Documents. As of
their respective
dates, the financial
statements of the
Company disclosed in the SEC Documents (the "Financial Statements") complied as
to form in all material respects with applicable accounting
requirements and the
published rules and regulations of the SEC with respect thereto.
Such financial
statements have been prepared in accordance with generally
accepted accounting
principles, consistently applied, during the periods involved
(except
