Exhibit
4.1
STANDBY EQUITY DISTRIBUTION
AGREEMENT
THIS AGREEMENT dated as of the 22 nd day of February,
2006 (the “ Agreement ”) between CORNELL
CAPITAL PARTNERS, LP , a Delaware limited partnership (the
“ Investor ”), and FACE PRINT GLOBAL
SOLUTIONS, INC. , a corporation organized and existing under
the laws of the State of Wyoming (the “ Company
”).
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, no
par value 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 Newbridge
Securities Corporation (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 the date hereof 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 (1 st ) 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.
Section 1.4
“ Advance Notice Date
” shall mean each date the Company delivers (in accordance
with Section 2.2(b) of this Agreement) 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, no par value 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.
Section 1.16
“ Market Price ” shall
mean the lowest VWAP of the Common Stock during the Pricing
Period.
2
Section 1.17
“ Maximum Advance Amount
” shall be Five Hundred Fifty Thousand
Dollars ($550,000) 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 Newbridge Securities Corporation, 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 (i) in respect of which
the Registration Statement has not been declared effective by the
SEC, (ii) which have not been sold under circumstances meeting all
of the applicable conditions of Rule 144 (or any similar provision
then in force) under the Securities Act (“ Rule 144
”) or (iii) which have not been otherwise transferred to a
holder who may trade such shares without restriction under the
Securities Act, and the Company has delivered a new certificate or
other evidence of ownership for such securities not bearing a
restrictive legend.
Section 1.25
“ Registration Rights
Agreement ” shall mean the Registration Rights Agreement
dated the date hereof, 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.
3
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 the date hereof, filed by the Company
for a period of at least twelve (12) months immediately preceding
the date hereof 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 5:00 pm Eastern Time, or (ii) the immediately
succeeding Trading Day if it is received by facsimile or otherwise
after 5:00 pm 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.
4
Section 2.3
Closings . On each Advance Date (i) the Company shall
deliver to the Investor shares of the Company’s Common Stock,
representing the amount of the Advance specified in such Advance
Notice pursuant to Section 2.1 herein, registered in the name of
the Investor 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. The extent the Company has
not paid the fees, expenses, and disbursements of the Investor or
the Company’s counsel in accordance with Section 12.4, 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, or (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;
5
(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 the Company’s independent
certified public accountants as to its ability to provide all
consents required in order to file a registration statement in
connection with this transaction;
(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
correct as of the date hereof 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
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.
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 December 31, 2004
and Form 10-QSB for the period ended September 30, 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.
Section 3.8
Registration Rights
Agreement . The parties
have entered into the Registration Rights Agreement dated the date
hereof.
7
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 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 the date hereof:
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
8
assuming the execution and delivery
thereof and acceptance by the Investor and any related agreements
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.
Section 4.3
Capitalization . The authorized capital stock of the Company
consists of an unlimited amount of shares of Common Stock, no par
value per share, and no shares of Preferred Stock, no par value per
share (“ Preferred Stock ”), of which 71,834,726
shares of Common Stock and no shares of Preferred Stock are issued
and outstanding. All of such outstanding shares have been
validly issued and are fully paid and nonassessable. 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 true and correct copies of the
Company’s Certificate of Incorporation, as amended and as in
effect on the date hereof (the “ Certificate of
Incorporation ”), and the Company’s By-laws, as in
effect on the date hereof (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 Certificate 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
agreement, indenture or instrument to which the Company or any of
its subsidiaries is a party, or result in a 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
9
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. 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
pursuant to the preceding sentence have been obtained or effected
on or prior to the date hereof. 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 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 (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or
may
