EXHIBIT 10.17
STANDBY EQUITY DISTRIBUTION AGREEMENT
THIS AGREEMENT dated as of the ___ day of March 2005 (the
"Agreement")
between CORNELL CAPITAL PARTNERS, LP, a
Delaware limited partnership (the
"Investor"), and CORD BLOOD AMERICA, INC.,
a corporation organized and existing
under the laws of the State of Florida (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 U.S. Dollars
($5,000,000) of the Company's common
stock, par value $0.0001 per share (the
"Common Stock"); and
WHEREAS, such investments will be made in reliance upon the
provisions
of Regulation D ("Regulation D") of the
Securities Act of 1933, as amended, and
the regulations promulgated thereunder (the
"Securities Act"), and or upon such
other exemption from the registration
requirements of the Securities Act as may
be available with respect to any or all of
the investments to be made hereunder.
WHEREAS, the Company has engaged Newbridge Securities Corporation
(the
"Placement Agent"), to act as the Company's
exclusive placement agent in
connection with the sale of the Company's
Common Stock to the Investor hereunder
pursuant to the Placement Agent Agreement
dated the date hereof by and among the
Company, the Placement Agent and the
Investor (the "Placement Agent Agreement").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
Section 1.1. "Advance" shall mean the portion of the Commitment
Amount
requested by the Company in the Advance
Notice.
Section 1.2. "Advance Date" shall mean the date the David
Gonzalez
Attorney Trust Account is in receipt of the
funds from the Investor and 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
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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 U.S. 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 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 $0.0001 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.
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Section 1.16. "Market Price" shall mean the lowest VWAP of the
Common
Stock during the Pricing Period.
Section 1.17. "Maximum Advance Amount" shall be Two Hundred
Fifty
Thousand U.S. Dollars (US$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.
Section
1.20. "Placement Agent" shall mean Newbridge Securities
Corporation, a registered
broker-dealer.
Section 1.21. "Pricing Period" shall mean the five (5)
consecutive
Trading Days after the Advance Notice
Date.
Section 1.22. "Principal Market" shall mean the Nasdaq National
Market,
the Nasdaq SmallCap Market, the American
Stock Exchange, the OTC Bulletin Board
or the New York Stock Exchange, whichever
is at the time the principal trading
exchange or market for the Common
Stock.
Section 1.23. "Purchase Price" shall be set at ninety eight
percent
(98%) 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 could not be 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.
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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.
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(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 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 2.3. 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 2.2. (a). 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's transfer agent shall be DWAC eligible.
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Section 2.6. Lock Up
Period.
(i) During the Commitment Period, the Company shall
not, with the prior written consent of the
Investor issue or sell (i) any Common
Stock or Preferred Stock without
consideration or for a consideration per share
less than the Bid Price on the date of
issuance or (ii) issue or sell any
warrant, option, right, contract, call, or
other security or instrument granting
the holder thereof the right to acquire
Common Stock without consideration or
for a consideration per share less than the
Bid Price on the date of issuance.
Nothwithstanding anything to the contrary
set forth in the immediately preceding
sentence, the Company may, upon five (5)
calendar days prior written notice to
the Investor, issue or sell shares of
Common Stock or warrants, options or
rights to acquire shares of Common Stock,
in an amount not to exceed two million
(2,000,000) shares of the Company's Common
Stock, to consultants, advisors and
independent contractors for services
rendered or to be rendered to the Company
or its subsidiaries at such price per share
or exercise price per share as the
Company may determine in any calendar
year.
(ii) 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 2.2(a), 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.
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.
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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;
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(iii) the Company's Form 10-KSB for the
year ended December 31, 2003 and Form
10-QSB for the period 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).
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 is permitted to sell the shares to
be issued to the Investor pursuant
to the Advance Notice during the applicable
Pricing Period.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as stated below, on the disclosure schedules attached hereto
or
in the SEC Documents (as defined herein),
the Company hereby represents and
warrants to, and covenants with, the
Investor that the following are true and
correct as of the date hereof:
Section 4.1. Organization and Qualification. The Company is
duly
incorporated or organized and validly
existing in the jurisdiction of its
incorporation or organization and has all
requisite 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
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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
100,000,000 shares of Common Stock, par
value $0.001 per share and no shares of
Preferred Stock of which 25,317,200
shares of Common 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,
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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. Since March 31,
2004,
the Company has filed all reports,
schedules, forms, statements and other
documents required to be filed by it with
the SEC under of the Exchange Act. The
Company has delivered to the Investor or
its representatives, or made available
through the SEC's website at
http://www.sec.gov, true and complete copies of the
SEC Documents. As of their respective
dates, the financial statements of the
Company disclosed in the SEC Documents (the
"Financial Statements") complied as
to form in all mater
