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Exhibit 10.1 STANDBY EQUITY DISTRIBUTION
AGREEMENT THIS AGREEMENT dated as of the 29th day of
August 2008 (the " Agreement ") between YA GLOBAL
INVESTMENTS, L.P. , a Cayman Islands exempt limited partnership
(the " Investor "), and COLORADO GOLDFIELDS INC. , a
corporation organized and existing under the laws of the State of
Nevada (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 Five Million Dollars ($5,000,000) of the
Company’s common stock, par value $0.001 per share (the "
Common Stock "); and WHEREAS , such investments will
be made in reliance upon the provisions of Regulation D ("
Regulation D ") of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder (the "
Securities Act "), and or upon such other exemption from the
registration requirements of the Securities Act as may be available
with respect to any or all of the investments to be made hereunder.
NOW , THEREFORE , the parties hereto agree as
follows: ARTICLE I.
Certain Definitions Section 1.1. " Advance " shall
mean the portion of the Commitment Amount requested by the Company
in the Advance Notice. Section 1.2. " Advance Date "
shall mean the first (1st) Trading Day after expiration of the
applicable Pricing Period for each Advance. Section 1.3. "
Advance Notice " shall mean a written notice in the form of
Exhibit A attached hereto to the Investor executed by an
officer of the Company and setting forth the Advance amount that
the Company requests from the Investor. 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 Five Million Dollars
($5,000,000) 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 Effective Date, and expiring upon the
termination of this Agreement in accordance with Section 10.2.
Section 1.9. " Common Stock " shall mean the
Company’s common stock, par value $0.001 per share.
Section 1.10. " Condition Satisfaction Date " shall
have the meaning set forth in Section 7.2. Section 1.11.
" Damages " shall mean any loss, claim, damage, liability,
costs and expenses (including, without limitation, reasonable
attorney’s fees and disbursements and costs and expenses of
expert witnesses and investigation). Section 1.12. "
Effective Date " shall mean the date on which the SEC first
declares effective a Registration Statement registering the resale
of the Registrable Securities as set forth in Section 7.2(a).
Section 1.13. Intentionally Omitted .
Section 1.14. " Exchange Act " shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder. Section 1.15. "
Material Adverse Effect " shall mean any condition,
circumstance, or situation that may result in, or reasonably be
expected to result in (i) a material adverse effect on the
legality, validity or enforceability of the Agreement, (ii) a
material adverse effect on the results of operations, assets,
business or condition (financial or otherwise) of the Company,
taken as a whole, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a
timely basis its obligations under the Agreement.
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
$250,000 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.
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Section 1.20. " Pricing Period " shall mean the five
(5) consecutive Trading Days after the Advance Notice Date.
Section 1.21. " Principal Market " shall mean the
Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq
Capital 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 1.22. " Purchase Price " shall be set at ninety
five percent (95%) of the Market Price during the Pricing Period.
Section 1.23. " 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 1.24. "
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 1.25. " Registration Statement " shall mean a
registration statement on Form S-1 or Form S-3 (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 1.26. " Regulation D "
shall have the meaning set forth in the recitals of this Agreement.
Section 1.27. " SEC " shall mean the United States
Securities and Exchange Commission. Section 1.28. "
Securities Act " shall have the meaning set forth in the
recitals of this Agreement. Section 1.29. " Trading Day
" shall mean any day during which the New York Stock Exchange shall
be open for business. Section 1.30. " VWAP " means, as
of any date, the daily dollar volume-weighted average price for
such security as reported by Bloomberg, LP through its "Historical
Price Table Screen (HP)" with Market: Weighted Ave function
selected, or, if no dollar volume-weighted average price is
reported for such security by Bloomberg, LP, the average of the
highest closing bid price and the lowest closing ask price of any
of the market makers for such security as reported in the "pink
sheets" by Pink Sheets LLC.
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ARTICLE II.
Advances Section 2.1. Advances . Subject to the
terms and conditions of this Agreement (including, without
limitation, the provisions of Article VII hereof), the
Company, at its sole and exclusive option, may issue and sell to
the Investor, and the Investor shall purchase from the Company,
shares of the Company’s Common Stock by the delivery, in the
Company’s sole discretion, of Advance Notices. 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 require the Investor
to purchase shares of Common Stock by delivering 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 and 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. Section 2.3.
Closings . On each Advance Date (i) the Company shall
deliver to the Investor such number of shares of the Common Stock
registered in the name of the Investor as shall equal (x) the
amount of the Advance specified in such Advance Notice pursuant to
Section 2.1 herein, divided by (y) the Purchase Price and
(ii) upon receipt of such shares, the Investor shall deliver
to the Company the amount of the Advance specified in the Advance
Notice by wire transfer of immediately available funds. In
addition, on or prior to the Advance Date, each of the Company and
the Investor shall deliver to the other all documents, instruments
and writings required to be delivered by either of them pursuant to
this Agreement in order to implement and effect the transactions
contemplated herein. To the extent the Company has not paid the
fees, expenses, and disbursements of the Investor in accordance
with Section 12.4, 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.
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(a) Company’s Obligations Upon Closing .
(i) The Company shall deliver to the Investor the shares of
Common Stock applicable to the Advance in accordance with
Section 2.3. The certificates evidencing such shares shall be
free of restrictive legends. (ii) The Registration Statement
filed pursuant to the Registration Rights Agreement shall be
effective and available for the resale of all applicable shares of
Common Stock to be issued in connection with the Advance and
certificates evidencing such shares shall be free of restrictive
legends; (iii) 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; (iv) the Company
shall have filed with the SEC in a timely manner all reports,
notices and other documents required of a "reporting company" under
the Exchange Act and applicable Commission regulations;
(v) the Company shall pay any unpaid fees as set forth in
Section 12.4 below or withhold such amounts as provided in
Section 2.3; and (vi) the Company’s transfer agent
shall be DWAC eligible. (b) Investor’s Obligations
Upon Closing . Upon receipt of the shares referenced in
Section 2.3(a)(i) above and provided the Company is in
compliance with its obligations in Section 2.3, the Investor shall
deliver to the Company the amount of the Advance specified in the
Advance Notice by wire transfer of immediately available funds.
Section 2.4. 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
2.4. Section 2.5. 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 pursuant to
Section 2.3(a)(i), 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 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, 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.
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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-KSB for the year ended
August 31, 2007 and Form 10-QSB for the period ended
May 31, 2008; 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. 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 3.9. 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 3.10. 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 and any related agreements, in
accordance with the terms hereof and thereof, (ii) the
execution and delivery of this Agreement, the Registration Rights
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 and
any related agreements have been duly executed and delivered by the
Company, (iv) this Agreement, the Registration Rights
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 . The authorized capital
stock of the Company consists of 1,185,000,000 shares of Common
Stock, of which 102,968,600 shares of Common 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 and on Exhibit 4.3, 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 on
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Form S-1 (file number 333-148622) 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), except pursuant to the terms of an
agreement between the Company and 1st SB Partners Ltd.(1st SB)
restricted common stock shares of the Company are due 1st SB in an
amount equal to 8% of the shares issued pursuant to the SEDA
transaction as between the Company and the Investor. 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 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 . The Company has filed all
reports, schedules, forms, statements and other documents required
to be filed by it with the SEC under the Securities Exchange Act
for the two years preceding the date hereof (or such shorter period
as the Company was required by law or regulation to file such
material) (all of the foregoing filed prior to the date hereof or
amended after the date hereof and all exhibits included
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therein and financial statements and schedules thereto and
documents incorporated by reference therein, being hereinafter
referred to as the " SEC Documents ") on timely basis or has
received a valid extension (except that the Company filed late its
quarterly report on Form 10-QSB for the Quarter ended May 31,
2007, and its annual report on Form 10-KSB for the year ended
August 31, 2007) of such time of filing and has filed any such SEC
Document prior to the expiration of any such extension. The Company
has delivered to the Buyers or their 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 SEC Documents complied in all material
respects with the requirements of the Exchange Act and the rules
and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were
filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial statements
of the Company included in the SEC Documents 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 be condensed or
summary statements) and fairly present in all material respects the
financial position of the Company as of the dates thereof and the
results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments). No other information provided by or on behalf
of the Company to the Buyers which is not included in the SEC
Documents contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the
statements therein, in the light of the circumstance under which
they are or were made and not misleading. Section 4.6.
10b-5 . The SEC Documents do not include any untrue
statements of material fact, nor do they omit to state any material
fact required t
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