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Exhibit 10.170
STANDBY EQUITY DISTRIBUTION AGREEMENT
THIS
AGREEMENT dated as of the 15th day of July 2005 (the
"Agreement")
between CORNELL CAPITAL PARTNERS, LP, a
Delaware limited partnership (the
"Investor"), and THE IMMUNE RESPONSE
CORPORATION, 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 Fifteen Million Dollars
($15,000,000) of the Company's common
stock, par value $0.0025 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 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 the David Gonzalez
Attorney Trust Account is in receipt of the
funds from the Investor and David
Gonzalez, Esq., is in possession of shares
registered for resale from the
Company and therefore an Advance by the
Investor to the Company can be made and
David Gonzalez, Esq. can release the shares
registered for resale 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
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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
Fifteen Million Dollars ($15,000,000) 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 so long as the Common
Stock is listed on the Nasdaq National
Market, the Nasdaq SmallCap Market, or
the American Stock Exchange, the Company
shall not have the right to request an
Advance if the issuance of the full number
of shares of Common Stock issuable in
connection with such Advance would,
together with all shares of Common Stock
previously issued under this Agreement,
exceed 9,699,143 shares of Common Stock
(which is no more than 19.99% of at least
48,739,415 outstanding shares of
Common Stock as of the date of this
Agreement) 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 Fifteen
Million Dollars ($15,000,000), (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 $0.0025 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.
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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 daily VWAP of the
Common Stock during the Pricing Period.
Section
1.17. "Maximum Advance Amount" shall be Five Hundred Thousand
Dollars ($500,000) per Advance Notice,
subject to the limitations set forth in
Section 1.7 of this Agreement.
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 (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.
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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-K,
Quarterly Reports on Form 10-Q, 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
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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.
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
David Gonzalez, Esq. (the "Escrow
Agent") 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 by
the Escrow Agent to the Investor, or
otherwise in accordance with the Escrow
Agreement and (ii) the Investor shall
deliver to 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, 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) 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, 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.
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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 Escrow Agent 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;
(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 Escrow
Agent 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.
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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
require 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 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 and
the applicable prospectus is delivered in
connection with such sale,
hypothecation or other transfer 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.
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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-K for the year
ended December 31, 2004 and Form 10-Q
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.
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).
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.
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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
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
170,000,000 shares of Common Stock, par value
$0.0025 per share and 10,000,000 shares of
Preferred Stock, $0.001 par value per
share ("Preferred Stock"), of which
49,846,544 shares of Common Stock and
688,146 shares of Series A convertible
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 (or arising under plans
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
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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 (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), and (v)
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 term of or in default under
its Certificate 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
regist
