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EXHIBIT 10.39
AMERICAN TECHNOLOGY
CORPORATION
PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT
DECEMBER 23, 2004
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AMERICAN TECHNOLOGY CORPORATION
PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT
TABLE OF CONTENTS
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1.
PURCHASE AND SALE OF NOTES AND
WARRANTS..................................................................1
1.1 Purchase
and Sale of
Notes......................................................................1
1.2 Purchase
and Sale of
Warrant....................................................................1
2.
CLOSING, DELIVERY AND
PAYMENT............................................................................2
2.1
Closing.........................................................................................2
2.2
Delivery........................................................................................2
2.3 Subsequent
Sales of
Securities..................................................................2
3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY.................................................3
3.1
Organization, Good Standing and
Qualification...................................................3
3.2
Subsidiaries....................................................................................3
3.3
Capitalization; Voting
Rights...................................................................3
3.4
Authorization; Binding
Obligations..............................................................4
3.5 SEC
Reports and
Filings.........................................................................4
3.6
Changes.........................................................................................5
3.7 Title to
Properties and Assets; Liens,
etc......................................................5
3.8 Compliance
with Other
Instruments...............................................................5
3.9
Litigation......................................................................................5
3.10
Employees.......................................................................................5
3.11
Registration
Rights.............................................................................6
3.12
Compliance with Laws;
Permits...................................................................6
3.13
Patents and
Trademarks..........................................................................6
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3.14
Offering
Valid..................................................................................7
3.15
Eligibility for Form
S-3........................................................................7
3.16
Reporting
Status................................................................................7
3.17
NASDAQ SmallCap
Market..........................................................................7
4.
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS.........................................................7
4.1 Requisite
Power and
Authority...................................................................7
4.2 Investment
Representations......................................................................8
5.
CONDITIONS TO
CLOSING...................................................................................11
5.1 Conditions
to Purchasers' Obligations at the
Closing...........................................11
5.2 Conditions
to Obligations of the
Company.......................................................12
6.
REGISTRATION
RIGHTS.....................................................................................13
6.1
Definitions....................................................................................13
6.2 Piggyback
Registration.........................................................................14
6.3 Expenses
of
Registration.......................................................................15
6.4
Obligations of the
Company.....................................................................15
6.5
Obligations of
Holder..........................................................................16
6.6
Indemnification................................................................................16
6.7 Assignment
of Registration
Rights..............................................................18
6.8
Termination of Registration
Rights.............................................................19
6.9 Amendment
of Registration
Rights...............................................................19
7.
MISCELLANEOUS...........................................................................................19
7.1 Governing
Law..................................................................................19
7.2
Survival.......................................................................................19
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7.3 Successors
and
Assigns.........................................................................19
7.4 Entire
Agreement...............................................................................19
7.5
Severability...................................................................................20
7.6 Amendment
and
Waiver...........................................................................20
7.7 Delays or
Omissions............................................................................20
7.8
Notices........................................................................................20
7.9
Expenses.......................................................................................20
7.10
Attorneys'
Fees................................................................................21
7.11
Confidentiality................................................................................21
7.12
Titles and
Subtitles...........................................................................21
7.13
Counterparts...................................................................................21
7.14
Broker's
Fees..................................................................................21
7.15
Exculpation Among
Purchasers...................................................................21
7.16
Pronouns.......................................................................................21
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LIST OF EXHIBITS
Schedule of Purchasers
Exhibit A
Form of Promissory Note
Exhibit B
Form of Warrant
Exhibit C
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THIS PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT (the
"Agreement")
is entered into as of December 23, 2004, by
and among American Technology
Corporation, a Delaware corporation (the
"Company"), and each of those persons
and entities, severally and not jointly,
whose names are set forth on the
Schedule of Purchasers attached hereto as
EXHIBIT A (which persons and entities
are hereinafter collectively referred to as
"Purchasers" and each individually
as a "Purchaser").
RECITALS
WHEREAS, the Company intends to sell a minimum aggregate
principal
amount of $2 million and a maximum
aggregate principal amount of $2.25 million
in unsecured subordinated promissory notes
to the Purchasers in the form
attached hereto as EXHIBIT B (the "Notes"),
with a minimum principal amount of
$50,000 from each Purchaser (which minimum
principal amount may be reduced for a
Purchaser in the Company's sole
discretion); and
WHEREAS, each Purchaser shall be entitled to receive a warrant in
the
form attached hereto as EXHIBIT C (each, a
"Warrant," collectively, the
"Warrants," and collectively with the
Notes, the "Securities") exercisable for a
number of shares of Common Stock of the
Company (the "Warrant Shares") such that
for every $100,000 in principal amount
purchased under the Notes, the Purchaser
shall be entitled to a warrant exercisable
for 7,500 Warrant Shares, prorated
for principal amounts less than $100,000;
and
NOW, THEREFORE, in consideration of the
foregoing recitals and the mutual
promises hereinafter set forth, the parties
agree as follows:
1. PURCHASE AND SALE OF NOTES AND WARRANTS.
1.1 PURCHASE AND SALE OF NOTES. Subject to the terms and
conditions of this Agreement and pursuant
to the Notes, the Purchasers agree to
purchase at the Closing, and the Company
agrees to sell and issue to the
Purchaser at the Closing, Notes in the
principal amounts as set forth next to
such Purchaser's name on the Schedule of
Purchasers attached hereto as EXHIBIT A
at a price equal to one hundred percent
(100%) of the principal amount thereof
(the "Investment").
1.2 PURCHASE AND SALE OF WARRANT. Subject to the terms and
conditions of this Agreement, the
Purchasers agree to purchase, and the Company
agrees to sell and issue to the Purchasers
at the Closing, Warrants to purchase
shares of the Company's Common Stock in the
amounts as set forth next to such
Purchaser's name on the Schedule of
Purchasers attached hereto as EXHIBIT A.
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2. CLOSING, DELIVERY
AND PAYMENT.
2.1 CLOSING. The closing of the sale and purchase of the
Securities under this Agreement (the
"Closing") shall take place at 10:00 a.m.
on the date hereof, at the offices of
Sheppard Mullin Richter & Hampton LLP,
12544 High Bluff Drive, Suite 300, San
Diego, California 92130, or at such other
time or place as the Company and Purchasers
may mutually agree (such date is
hereinafter referred to as the "Closing
Date").
2.2 DELIVERY.
(a) CLOSING DELIVERIES. At the Closing, each
Purchaser shall pay the purchase price for
the Securities as set forth next to
such Purchaser's name on the Schedule of
Purchasers attached hereto as EXHIBIT A
hereto by delivering immediately available
funds in United States Dollars to the
Company's offices. The Company shall
deliver to the Purchasers executed Notes
and Warrants in the principal amounts and
for the number of shares of common
stock as set forth next to such Purchaser's
name on the Schedule of Purchasers
attached hereto as EXHIBIT A.
(b) METHOD OF PAYMENT. Payment of the purchase price
for the Securities shall be made by cash,
cashier's check, wire transfer, or
other form of immediately available
funds:
US Bank
4180 La Jolla Village Drive
Suite 125
La Jolla, CA 92037
Attn: Josephine
Bennett
(858)
597-8867
ABA#: 122235821
Account Name: American
Technology Corporation
Account#:
165600532825
2.3 SUBSEQUENT SALES OF SECURITIES. At any time on or before
the 60th day following the Closing, the
Company may sell additional Notes and
Warrants, provided that the aggregate
principal amount of all Notes sold
hereunder shall not exceed $2.25 million.
All such sales shall be made on the
terms and conditions set forth in this
Agreement, including, without limitation,
the representations and warranties by such
Purchasers as set forth in SECTION 4.
Any additional Notes sold pursuant to this
SECTION 2.3 shall be deemed to be
"Notes" for all purposes under this
Agreement, any Warrants sold pursuant to
this SECTION 2.3 shall be deemed "Warrants"
for all purposes under this
Agreement, and any purchasers thereof shall
be deemed to be "Purchasers" for all
purposes under this Agreement.
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3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth in the SEC Documents (defined in SECTION 3.5
below)
or in the disclosure letter (the
"Disclosure Letter") previously delivered to
the Purchasers (if any), the Company hereby
represents and warrants to, and
covenants with, each Purchaser as of the
date of this Agreement as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly
existing and in good standing under the
laws of the State of Delaware. The Company
has all requisite corporate power and
authority to own and operate its properties
and assets, to execute and deliver
this Agreement and the Securities and to
issue and sell the Securities and the
Warrant Shares and to carry out the
provisions of this Agreement, the Notes and
Warrants and to carry on its business as
presently conducted and as presently
proposed to be conducted. The Company is
duly qualified and is authorized to do
business and is in good standing as a
foreign corporation in all jurisdictions
in which the nature of its activities and
of its properties (both owned and
leased) makes such qualification necessary,
except for those jurisdictions in
which failure to do so would not have a
material adverse effect on the Company
or its business.
3.2 SUBSIDIARIES. The Company owns no equity securities of any
other corporation, limited partnership or
similar entity. The Company is not a
participant in any joint venture,
partnership or similar arrangement.
3.3 CAPITALIZATION; VOTING RIGHTS. The authorized capital
stock of the Company consists of: (A)
50,000,000 shares of Common Stock, par
value $.00001 per share, of which, as of
December 17, 2004 (the "Reference
Date"), (i) 19,808,819 shares are issued
and outstanding, (ii) 1,997,123 shares
are subject to outstanding options, (iii)
96,991 shares are reserved for future
issuance to employees, directors and
consultants pursuant to the Company's stock
option plans, (iv) 2,627,802 shares are
subject to outstanding warrants, and (v)
3,684,782 shares of Common Stock are
reserved for issuance under our committed
equity financing facility (the "Equity
Financing Facility") with Kingsbridge
Capital Limited ("Kingsbridge"), no shares
of which are outstanding as of the
Reference Date; and (B) 5,000,000 shares of
Preferred Stock, par value $.00001
per share, of which (i) 350,000 shares are
designated Series A Preferred Stock,
no shares of which are outstanding as of
the Reference Date, (ii) 250,000 shares
are designated Series B Preferred Stock, no
shares of which are outstanding as
of the Reference Date, (iii) 300,000 shares
are designated as Series C Preferred
Stock, no shares of which are outstanding
as of the Reference Date, (iv) 235,400
shares are designated Series D Preferred
Stock, 50,000 of which are outstanding
as of the Reference Date and (v) 343,250
shares are designated Series E
Preferred Stock, 233,250 of which are
issued and outstanding as of the Reference
Date. All issued and outstanding shares of
the Company's Common Stock (a) have
been duly authorized and validly issued,
and (b) are fully paid and
nonassessable. 168,750 shares of Common
Stock have been duly and validly
reserved as Warrant Shares for issuance
upon exercise of the Warrants. As of the
Reference Date, other than the shares of
capital stock issuable upon exercise or
conversion of the foregoing outstanding
options, warrants, convertible
securities and under the Equity Financing
Facility, and except as may be granted
pursuant to this Agreement or the Warrants,
there are no outstanding options,
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warrants, rights (including conversion,
anti-dilution or preemptive rights and
rights of first refusal), proxy or
stockholder agreements, or agreements of any
kind for the purchase or acquisition from
the Company of any of its securities.
When issued in compliance with the
provisions of this Agreement and the
Certificate of Incorporation, as amended,
and the Bylaws, as amended
(collectively, the "Charter"), the
Securities and the Warrant Shares will be
validly issued, fully paid and
nonassessable, and will be free of any liens or
encumbrances; provided, however, that the
Securities and the Warrant Shares may
be subject to restrictions on transfer
under state and/or federal securities
laws as set forth herein or as otherwise
required by such laws at the time a
transfer is proposed.
3.4 AUTHORIZATION; BINDING OBLIGATIONS. All corporate action
on the part of the Company, its officers,
directors and stockholders necessary
for the authorization of this Agreement and
the Securities, the performance of
all obligations of the Company hereunder
and thereunder at the Closing and the
authorization, sale, issuance and delivery
of the Securities pursuant hereto and
the Warrant Shares has been taken or will
be taken prior to the Closing. The
Agreement, and the Securities, when
executed and delivered, will be valid and
binding obligations of the Company
enforceable in accordance with their terms,
except (a) as limited by applicable
bankruptcy, insolvency, reorganization,
moratorium or other laws of general
application affecting enforcement of
creditors' rights; (b) general principles
of equity that restrict the
availability of equitable remedies; and (c)
to the extent that the
enforceability of the indemnification
provisions in SECTION 6.6 of this
Agreement may be limited by applicable
laws. The sale of the Securities and the
subsequent exercise of the Warrants into
Warrant Shares are not and will not be
subject to any preemptive rights,
anti-dilution or rights of first refusal that
have not been properly waived or complied
with.
3.5 SEC REPORTS AND FILINGS. The Company has delivered to each
Purchaser, or made available on its
website, complete and accurate copies of (i)
the Annual Report on Form 10-K for the
fiscal year ended September 30, 2003,
(ii) the amended Annual Report on Form 10-K
for the fiscal year ended September
30, 2003, (iii) the Quarterly Reports on
Form 10-Q for the quarters ended
December 31, 2003, March 31, 2004, and June
30, 2004, as such reports have been
amended prior to the Closing, each as filed
by the Company with the Securities
and Exchange Commission ("SEC"), and (iv)
Current Reports on Form 8-K dated
December 17, 2004, November 22, 2004,
September 28, 2004, August 5, 2004, June
25, 2004, April 28, 2004, February 20,
2004, February 12, 2004, December 29,
2003, December 10, 2003 and November 6,
2003 (the "SEC Documents"). The SEC
Documents, including the financial
statements contained therein, (i) complied
with the requirements of the Securities Act
of 1933, as amended (the "Securities
Act") or the Securities Exchange Act of
1934, as amended (the "Exchange Act"),
as the case may be, at and as of the times
they were filed (or, if amended or
superseded by a filing prior to the date of
this Agreement, then on the date of
such filing) in all material respects and
(ii) did not at and as of the time
they were filed (or, if amended or
superseded by a filing prior to the date of
this Agreement, then on the date of such
filing) contain any untrue statement of
a material fact or omit to state a material
fact required to be stated therein
or necessary in order to make the
statements therein, in light of the
circumstances under which they were made,
not misleading. The Company has made
all filings with the SEC required under the
Securities Act, the Exchange Act and
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all regulations promulgated thereunder
since September 30, 2001, other than
reports on Form 8-K for which the SEC has
granted a safe harbor with respect to
the timing of the disclosure of such
information.
3.6 CHANGES. Since June 30, 2004, there has been no material
adverse change or disruption in the
business, operations, prospects or financial
condition of the Company other than as
disclosed in the SEC Documents and other
than continued losses from operations in
the ordinary course of the Company's
business.
3.7 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company
has good and marketable title to its
properties and assets, including the
properties and assets reflected in the most
recent balance sheet included in the
SEC Documents, and good title to its
leasehold estates, in each case subject to
no mortgage, pledge, lien, lease,
encumbrance or charge, other than (a) those
resulting from taxes which have not yet
become delinquent, (b) minor liens and
encumbrances which do not materially
detract from the value of the property
subject thereto or materially impair the
operations of the Company, and (c)
those that have otherwise arisen in the
ordinary course of business. All
facilities, machinery, equipment, fixtures,
vehicles and other properties owned,
leased or used by the Company are in good
operating condition and repair and are
reasonably fit and usable for the purposes
for which they are being used. The
Company is in compliance with all material
terms of each lease to which it is a
party or is otherwise bound.
3.8 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation or default of any term of its
Charter, or of any provision of any
mortgage, indenture, contract, agreement,
instrument or contract to which it is
party or by which it is bound or of any
judgment, decree, order, writ or, to its
knowledge, any statute, rule or regulation
applicable to the Company which would
materially and adversely affect the
business, assets, liabilities, financial
condition or operations of the Company. The
execution, delivery, and performance
of and compliance with this Agreement, and
the Securities, and the issuance and
sale of the Securities pursuant hereto and
of the Warrant Shares, will not, with
or without the passage of time or giving of
notice, result in any such material
violation, or be in conflict with or
constitute a default under any such term,
or result in the creation of any mortgage,
pledge, lien, encumbrance or charge
upon any of the properties or assets of the
Company or the suspension,
revocation, impairment, forfeiture or
nonrenewal of any permit license,
authorization or approval applicable to the
Company, its business or operations
or any of its assets or properties.
3.9 LITIGATION. There is no action, suit, proceeding or
investigation pending or to the Company's
knowledge currently threatened in
writing against the Company that questions
the validity of this Agreement or the
Securities or the right of the Company to
enter into any of such agreements, or
to consummate the transactions contemplated
hereby or thereby, or, except as
disclosed in the SEC Documents, which might
result, either individually or in
the aggregate, in any material adverse
change in the assets, prospects,
condition or affairs of the Company,
financially or otherwise, or any change in
the current equity ownership of the
Company, nor is the Company aware that there
is any basis for the foregoing.
3.10 EMPLOYEES. The Company has no collective bargaining
agreements with any of its employees. There
is no labor union organizing
activity pending or, to the Company's
knowledge, threatened with respect to the
Company.
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3.11 REGISTRATION RIGHTS. Except as required pursuant to this
Agreement and pursuant to the terms of a
Series C Stock and Warrant Purchase
Agreement, a Series D Stock and Warrant
Purchase Agreement, a Series E Stock and
Warrant Purchase Agreement, and a
Registration Rights Agreement with Kingsbridge
pursuant to the Equity Financing Facility,
the Company is presently not under
any obligation, and has not granted any
rights, to register (as defined in
SECTION 6.1 of this Agreement) any of the
Company's presently outstanding
securities or any of its securities that
may hereafter be issued.
3.12 COMPLIANCE WITH LAWS; PERMITS. To its knowledge, the
Company is not in violation of any
applicable statute, rule, regulation, order
or restriction of any domestic or foreign
government or any instrumentality or
agency thereof or any administrative or
self-regulatory agency in respect of the
conduct of its business or the ownership of
its properties which violation would
materially and adversely affect the
business, assets, liabilities, financial
condition or operations of the Company. No
orders, permissions, consents,
approvals or authorizations are required to
be obtained and no registrations or
declarations are required to be filed in
connection with the execution and
delivery of this Agreement and the issuance
of the Securities or the Warrant
Shares, except such as has been duly and
validly obtained or filed, or with
respect to any filings that must be made
after the Closing, as will be filed in
a timely manner. The Company has all
franchises, permits, licenses and any
similar authority necessary for the conduct
of its business as now being
conducted by it, the lack of which could
materially and adversely affect the
business, properties, prospects or
financial condition of the Company and
believes it can obtain, without undue
burden or expense, any similar authority
for the conduct of its business as planned
to be conducted.
3.13 PATENTS AND TRADEMARKS. To the best of its knowledge, the
Company owns or possesses sufficient legal
rights to all patents, trademarks,
service marks, trade names, copyrights,
trade secrets, information and other
proprietary rights and processes necessary
for its business as now conducted and
as proposed to be conducted, without any
known infringement of the rights of
others. There are no outstanding options,
licenses or agreements of any kind
relating to the foregoing, except those
disclosed in the SEC Documents and those
entered into in the ordinary course of the
Company's business. The Company has
not received any communications alleging
that the Company has violated or, by
conducting its business as proposed, would
violate any of the patents,
trademarks, service marks, trade names,
copyrights or trade secrets or other
proprietary rights of any other person or
entity. The Company is not aware that
any of its employees is obligated under any
contract (including licenses,
covenants or commitments of any nature) or
other agreement, or subject to any
judgment, decree or order of any court or
administrative agency, that would
interfere with their duties to the Company
or that would conflict with the
Company's business as proposed to be
conducted. Neither the execution nor
delivery of this Agreement, nor the
carrying on of the Company's business by the
employees of the Company, nor the conduct
of the Company's business as proposed,
will, to the Company's knowledge, conflict
with or result in a breach of the
terms, conditions or provisions of, or
constitute a default under, any contract,
covenant or instrument under which any
employee is now obligated. The Company
does not believe it is or will be necessary
to utilize any inventions, trade
secrets or proprietary information of any
of its employees made prior to their
employment by the Company, except for
inventions, trade secrets or proprietary
information that have been assigned to the
Company.
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3.14 OFFERING VALID. Assuming the accuracy of the
representations and warranties of the
Purchasers contained in SECTION 4 hereof,
the offer, sale and issuance of the
Securities and the Warrant Shares will be
exempt from the registration requirements
of the Securities Act and will have
been registered or qualified (or are exempt
from registration and qualification)
under the registration, permit or
qualification requirements of all applicable
state securities laws. Neither the Company
nor any agent on its behalf has
solicited or will solicit any offers to
sell or has offered to sell or will
offer to sell all or any part of the
Securities to any person or persons so as
to bring the sale of such Securities by the
Company within the registration
provisions of the Securities Act or any
state securities laws.
3.15 ELIGIBILITY FOR FORM S-3. The Company represents and
warrants that it meets the requirements for
the use of Form S-3 for registration
of the sale by the Purchasers of the
Warrant Shares, and the Company shall file
all reports required to be filed by the
Company with the SEC in a timely manner
and take all other necessary action so as
to maintain such eligibility for the
use of Form S-3.
3.16 REPORTING STATUS. The Company's Common Stock is
registered under Section 12 of the Exchange
Act. So long as any Purchaser
beneficially owns any of the Securities or
Warrant Shares, the Company shall
timely file all reports required to be
filed with the SEC pursuant to the
Exchange Act, and the Company shall not
voluntarily terminate its status as an
issuer required to file reports under the
Exchange Act even if the Exchange Act
or the rules and regulations thereunder
would permit such termination.
3.17 NASDAQ SMALLCAP MARKET. The Company's Common Stock is
listed on the Nasdaq SmallCap Market
maintained by the National Association of
Securities Dealers, Inc. ("NASD"), and for
so long as any Purchaser owns any of
the Warrants or Warrant Shares, the Company
shall use its best efforts to
continue the listing and trading of its
Common Stock on the Nasdaq SmallCap
Market or to secure and maintain listing
and trading on the Nasdaq National
Market System, the New York Stock Exchange
or the American Stock Exchange, and
shall comply in all respects with the
Company's reporting, filing and other
obligations under the bylaws or rules of
such market or exchange. The Company is
not aware of any delisting or suspension
proceeding regarding its Common Stock
or any SEC or NASD inquiries regarding the
Company and does not reasonably
anticipate any such delisting, suspension
or inquiry.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby represents and warrants, severally and
not
jointly, to the Company as follows:
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary
power and authority under all applicable
provisions of law to execute and
deliver this Agreement and to carry out
their provisions. All action on
Purchaser's part required for the lawful
execution and delivery of this
Agreement has been or will be effectively
taken prior to the Closing. Upon its
execution and delivery, this Agreement will
be a valid and binding obligation of
Purchaser, enforceable in accordance with
its terms, except (a) as limited by
applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of
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general application affecting enforcement
of creditors' rights, (b) general
principles of equity that restrict the
availability of equitable remedies, and
(c) to the extent that the enforceability
of the indemnification provisions of
SECTION 6.6 of this Agreement may be
limited by applicable laws.
4.2 INVESTMENT REPRESENTATIONS. Purchaser understands that
neither the Securities nor the Warrant
Shares have been registered under the
Securities Act, and that the instruments
representing the Securities and the
Warrant Shares will contain appropriate
restrictive legends. Purchaser also
understands that the Securities are being
offered and sold pursuant to an
exemption from registration contained in
the Securities Act based in part upon
Purchaser's representations contained in
the Agreement. Purchaser hereby
represents and warrants as follows:
(a) PURCHASER BEARS
ECONOMIC RISK. Purchaser has
substantial experience in evaluating and
investing in private placement
transactions of securities in companies
similar to the Company so that it is
capable of evaluating the merits and risks
of its investment in the Company and
has the capacity to protect its own
interests. Purchaser must bear the economic
risk of this investment with respect to the
Warrant and Warrant Shares
indefinitely unless the Warrant or the
Warrant Shares are registered pursuant to
the Securities Act, or an ex
