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EXHIBIT 4.1
STANDBY EQUITY DISTRIBUTION AGREEMENT
THIS AGREEMENT dated as of the 1st day of February 2005 (the
"Agreement")
between CORNELL CAPITAL PARTNERS, LP, a Delaware limited
partnership (the
"Investor"), and AVITAR, INC., a corporation organized and
existing under the
laws of the State of Delaware (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 U.S. Dollars ($10,000,000) of the
Company's common
stock, par value $0.01 per share (the "Common Stock").
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 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 date David Gonzalez,
Esq.
Attorney Trust Account is in receipt of the funds from the
Investor David
Gonzalez, Esq., is in possession of free trading shares from the
Company and
therefore an Advance by the Investor to the Company can be made
and David
Gonzalez, Esq. can release the free trading shares to the
Investor. The Advance
Date shall be 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 to the
Investor
setting forth the Advance amount that the Company requests from
the Investor and
the Advance Date.
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 U.S. 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, provided that the
Company shall not
request an Advance if the issuance of the full number of shares
of Common Stock
issuable in connection with such Advance would result in a
violation of the AMEX
Listing Standards, Policies and Requirements of Section 713 (or
any similar
applicable section) unless the necessary shareholder approval or
consent has
been received prior to such request.
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
U.S. Dollars ($10,000,000), (y) the date this Agreement is
terminated pursuant
to Section 2.5, 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 $0.01 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. "Escrow Agreement" shall mean the escrow agreement
among the
Company, the Investor, and David Gonzalez, Esq., dated the date
hereof.
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.
Section 1.17. "Maximum Advance Amount" shall be Two Hundred
Fifty Thousand
U.S. Dollars (US$250,000) per Advance Notice, provided that
aggregate Advances
in any thirty (30) day period shall not exceed One Million
Dollars ($1,000,000).
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 American Stock
Exchange,
unless the Common Stock is not traded on the American Stock
Exchange, and then
"Principal Market" shall mean the Nasdaq National Market, the
Nasdaq SmallCap
Market, the OTC Bulletin Board or the New York Stock Exchange,
whichever is at
the time is the principal trading exchange or market for the
Common Stock.
Section 1.23. "Purchase Price" shall be set at ninety nine
percent (99%) 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.
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. Investments.
(a) Advances. Upon the terms and conditions set forth herein
(including,
without limitation, the provisions of Article VII hereof), on
any Advance Notice
Date 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
receive for 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 on the day 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.
(c) Pre-Closing Share Credit. Within two (2) business days after
the
Advance Notice Date, the Company shall credit shares of the
Company's Common
Stock to the Investor's counsel's balance account with The
Depository Trust
Company through its Deposit Withdrawal At Custodian system, in
an amount equal
to the amount of the requested Advance divided by the closing
Bid Price of the
Company's Common Stock as of the Advance Notice Date multiplied
by one point one
(1.1). Any adjustments to the number of shares to be delivered
to the Investor
at the Closing as a result of fluctuations in the closing Bid
Price of the
Company's Common Stock shall be made as of the date of the
Closing. Any excess
shares shall be credited to the next Advance. In no event shall
the number of
shares issuable to the Investor pursuant to an Advance cause the
Investor to own
in excess of nine and 9/10 percent (9.9%) of the then
outstanding Common Stock
of the Company.
(d) Hardship. In the event the Investor sells the Company's
Common Stock
pursuant to subsection (c) above and the Company fails to
perform its
obligations as mandated in Section 2.5 and 2.2 (c), and
specifically fails to
provide the Investor with the shares of Common Stock for 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.
Section 2.3. Closings. On each Advance Date, which shall be the
first (1st)
Trading Day after expiration of the applicable Pricing Period
for each Advance,
(i) the Company shall deliver to the Investor's Counsel, as
defined pursuant to
the Escrow Agreement, shares of the Company's Common Stock,
representing the
amount of the Advance by the Investor pursuant to Section 2.1
herein, registered
in the name of the Investor which shall be delivered to the
Investor, or
otherwise in accordance with the Escrow Agreement and (ii) the
Investor shall
deliver to David Gonzalez, Esq. (the "Escrow Agent") the amount
of the Advance
specified in the Advance Notice by wire transfer of immediately
available funds
which shall be delivered to the Company, or otherwise in
accordance with the
Escrow Agreement. In addition, on or prior to the Advance Date,
each of the
Company and the Investor shall deliver to the other through the
Investor's
Counsel, 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. Payment of funds to the
Company and delivery
of the Company's Common Stock to the Investor shall occur in
accordance with the
conditions set forth above and those contained in the Escrow
Agreement;
provided, however, that to the extent the Company has not paid
the fees,
expenses, and disbursements of the Investor, the Investor'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) from the amount 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.
(a) 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:
(i) the execution and delivery by the Company, and the Investor,
of
this Agreement and the Exhibits hereto;
(ii) Investor's Counsel shall have received the shares of Common
Stock
applicable to the Advance in accordance with Section 2.2(c)
hereof;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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
(vii) the conditions set forth in Section 7.2 shall have
been
satisfied.
(viii) the Company shall have provided to the Investor an
acknowledgement, from BDO Seidman, LLP as to its ability to
provide all
consents required in order to file a registration statement in
connection
with this transaction;
(ix) The Company's transfer agent shall be DWAC eligible.
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 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.
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, for investment 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; 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 and Escrow Agreement.
The
parties have entered into the Registration Rights Agreement and
the Escrow
Agreement, each dated the date hereof.
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). Neither the Investor nor its Affiliates has an
open short
position in the Common Stock of the Company, and the Investor
agrees that it
will 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 is permitted to sell the Shares to be issued to the
Investor pursuant
to the Advance Notice, during an applicable Pricing Period.
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.
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 power and
authority
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 Escrow
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 Escrow
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
Escrow 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 Escrow Agreement, the
Placement Agent
Agreement and 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. As of the date hereof, the
authorized capital
stock of the Company consists of 300,000,000 shares of Common
Stock, par value
$0.01 per share and 5,000,000 shares of Series A, B, C and 6%
convertible
Preferred Stock of which 145,380,798 shares of Common Stock and
46,865 shares of
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 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
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