NOTE AND WARRANT PURCHASE AGREEMENT
THIS NOTE AND WARRANT PURCHASE AGREEMENT (the "Agreement") is
entered
into as of March 7, 2005, by and between
MIRAVANT MEDICAL TECHNOLOGIES, a
Delaware corporation (the "Company"), with
headquarters located at 336 Bollay
Drive, Santa Barbara, California 93117, and
ST. CLOUD INVESTMENTS, LTD., a
British Virgin Islands company (the
"Purchaser").
RECITALS
A. The parties hereto have agreed to a Non-Binding Letter of
Intent
(the "Letter of Intent").
B. The Company and the Purchaser are executing and delivering
this
Agreement in reliance upon the exemption
from securities registration afforded
by the provisions of Regulation D
("Regulation D"), as promulgated by the United
States Securities and Exchange Commission
(the "SEC") under the Securities Act
of 1933, as amended (the "Securities
Act").
C. The Purchaser desires to purchase, upon the terms and
conditions
stated in this Agreement, (a) up to FIFTEEN
MILLION DOLLARS ($15,000,000) of the
Company's Secured Convertible Promissory
Notes in the form attached hereto as
Exhibit A (collectively, the "Notes"), and
(b) warrants, in the form attached
hereto as Exhibit B (collectively, the
"Warrants"), to acquire shares of the
Company's common stock, par value $0.01 per
share (the "Common Stock"). The
shares of Common Stock issuable upon
exercise of or otherwise pursuant to the
Warrants are referred to herein as "Warrant
Shares." The shares of Common Stock
issuable on the conversion of the Notes,
including any share of Common Stock
issued for interest payments under the
Notes, are referred to herein as the
"Conversion Shares." The Notes, the
Warrants, the Warrant Shares and the
Conversion Shares are collectively referred
to herein as the "Securities."
D. Contemporaneously with the execution and delivery of this
Agreement,
the parties hereto are executing and
delivering (a) a Security Agreement in the
form attached hereto as Exhibit C (the
"Security Agreement"), pursuant to which
the Company is granting to Purchaser a
security interest in the Collateral (as
defined therein) as security for the
repayment of the Notes, and (b) a
Registration Rights Agreement in the form
attached hereto as Exhibit D (the
"Registration Rights Agreement"), pursuant
to which the Company has agreed to
provide certain registration rights with
respect to the Conversion Shares and
the Warrant Shares under the Securities
Act, the rules and regulations
promulgated thereunder and applicable state
securities laws.
AGREEMENTS
NOW, THEREFORE, in consideration of their respective promises
contained
herein and other good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company
and the Purchaser hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF NOTES AND WARRANTS
1.1 Line of Credit Commitment. The
Purchaser agrees, on the terms of and subject
to the conditions specified in this
Agreement, to purchase from the Company on
one or more dates prior to July 1, 2006
(the "Commitment Expiration Date") an
aggregate principal amount of sum of up to
FIFTEEN MILLION DOLLARS ($15,000,000)
of Notes (the "Credit Commitment").
1.2 Drawdowns. The Purchaser agrees to
purchase ONE MILLION DOLLARS ($1,000,000)
of Notes (the "Monthly Amount") at the
Initial Closing (as defined below). Each
month thereafter in which the Company
desires to borrow additional amounts under
the terms and conditions set forth in this
Agreement, the Company shall deliver
to Purchaser a new Borrowing Request in the
form attached hereto as Exhibit E
specifying an amount, up to the Monthly
Amount, the Company desires to borrow.
The Borrowing Request must be received by
the Purchaser at least thirty (30)
days prior to the requested funding date.
Upon receipt of such Borrowing
Request, Purchaser shall, in its sole and
absolute discretion, either accept or
reject, in part or in total, the Company's
Borrowing Request by delivering to
the Company a certificate (the "Funding
Acceptance Certificate") not less than
ten (10) business days after receipt of the
Borrowing Request evidencing
Purchaser's desire to purchase additional
Notes at a Subsequent Closing (defined
below). In the event Purchaser delivers a
Funding Acceptance Certificate to the
Company and elects to purchase additional
Notes, funds will be delivered by
Purchaser no later than thirty (30) days
following the date of the Borrowing
Request. In the absence of either a
Borrowing Request delivered by the Company
to the Purchaser or a Funding Acceptance
Certificate delivered by the Purchaser
to the Company evidencing Purchaser's
election to purchase additional Notes in a
Subsequent Closing, there shall be no
obligation of the Company to sell and no
obligation of the Purchaser to purchase
additional Notes. If in any month the
Company does not borrow the full Monthly
Amount, then any unused borrowing may
be carried forward and the funding of such
amounts may be requested by the
Company in subsequent months' Borrowing
Requests. Notwithstanding the foregoing,
in the event Purchaser has purchased Notes
with an aggregate principal amount at
least of $7.0 million and such Notes remain
outstanding, the Company shall not
be permitted to submit a subsequent
Borrowing Request unless (a) the Company has
reserved, solely for the issuance and
delivery upon the conversion of the Notes
and exercise of the Warrants, such number
of the Conversion Shares and Warrant
Shares and other stock, securities and
property, as from time to time shall be
issuable upon the conversion of the Notes
and upon exercise of the Warrants,
including a sufficient number of Conversion
Shares and Warrant Shares issuable
in connection with the Notes and Warrants
to be issued pursuant to such
subsequent Borrowing Request, or (b) the
Company has first amended its
Certificate of Incorporation to increase
the number of authorized shares of the
Company's Common Stock and has reserved,
solely for the issuance and delivery
upon the conversion of the Notes and
exercise of the Warrants, such number of
the Conversion Shares and Warrant Shares
and other stock, securities and
property, as from time to time shall be
issuable upon the conversion of the
Notes and upon exercise of the Warrants,
including a sufficient number of
Conversion Shares and Warrant Shares
issuable in connection with the Notes and
Warrants to be issued pursuant to such
subsequent Borrowing Request. The last
Borrowing Request will be delivered no
later than the Commitment Expiration
Date.
1.3 Warrants. In consideration for the purchase by the Purchaser
of the
Notes, the Company will issue to the
Purchaser, simultaneously with the issuance
and sale of each Note, a Warrant to purchase that number of shares of Common
Stock that is equal one-quarter (1/4) share for each Conversion Share to be
received. The exercise price per share
shall be equal to one hundred ten percent
(110%) of the average of the closing sales
prices of the shares of the Company's
Common Stock on a national exchange or over-the-counter trading system during
all trading days of the full calendar month prior to the date on which
the
Warrant is issued.
1.4 Closings. Subject to the satisfaction (or waiver) of the
conditions set forth in Articles VI and VII
below, the initial closing under
this Agreement (the "Initial Closing") will
be held on March 7, 2005, or on such
other date as the parties shall mutually
agree (the "Initial Closing Date"), and
each subsequent closing (each a "Subsequent
Closing" and, together with the
Initial Closing, the "Closings") shall
occur on the date specified by the
applicable Borrowing Request (which date
shall be thirty (30) days after the
date of such Borrowing Request, assuming
acceptance of such Borrowing Request by
Purchaser as evidenced by Purchaser's
delivery of a Funding Acceptance
Certificate), or on such other date as the
parties shall mutually agree (each a
"Subsequent Closing Date" and, together
with the Initial Closing Date, the
"Closing Dates").
1.5 Delivery.
At each Closing,
the Purchaser shall
pay to the Company the
aggregate purchase price for the Note so
purchased (equal to the face principal
amount of such Note) by wire transfer to
the account designated
by the Company.
Upon receipt of such funds, the Company shall deliver to the Purchaser a
duly
executed Note and related Warrant.
1.6 Purchaser's
Termination of Obligations. The Purchaser may terminate its
obligations hereunder with respect to any unused portion of the Credit
Commitment at any time upon ten (10)
days' prior written notice if, in the
Purchaser's reasonable judgment, the operations of the Company are
not meeting
their business objectives as expected.
1.7 Letter of Intent. The Letter of Intent is hereby superceded and
terminated.
ARTICLE II
PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser
represents and warrants to the Company, as of the date hereof
and as of each Closing Date, as set forth in this Article II. The Purchaser
makes no other representations or
warranties, express or implied, to the Company
in connection with the transactions contemplated hereby and any and all prior
representations and warranties, if any, which may have been made by the
Purchaser to the Company in connection with
the transactions contemplated hereby
shall be deemed to have been merged in this Agreement and any such prior
representations and warranties, if any, shall not survive the execution and
delivery of this Agreement.
2.1 Investment Purpose. Purchaser is purchasing the Securities for
Purchaser's own account for investment only and not with a view toward or
in
connection with the public sale or
distribution thereof. The Purchaser will not,
directly or indirectly, offer, sell, pledge or otherwise transfer
the Notes or
Warrants or any interest therein except
pursuant to transactions that are exempt
from the registration requirements of the
Securities Act and/or sales registered
under the Securities Act. Purchaser understands that Purchaser must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and
any applicable state
securities
laws or an exemption from such registration is available,
and that the
Company
has no present intention of registering any such Securities other than as
contemplated by the Registration Rights
Agreement.
2.2 Accredited
Investor Status.
Purchaser is an
"accredited investor"
as
that term is defined in Rule 501(a) of
Regulation D.
2.3 Reliance on
Exemptions. Purchaser
understands that the
Securities are
being offered and sold to Purchaser in
reliance upon specific
exemptions
from
the registration requirements of United
States federal and state securities laws
and that the Company is relying upon the
truth and accuracy of, and Purchaser's
compliance with, the representations,
warranties,
agreements,
acknowledgments
and understandings of Purchaser set forth herein in order to determine the
availability of such exemptions and the
eligibility of Purchaser to acquire the
Notes and Warrants.
2.4 Information. The Company or its counsel have made available all
materials relating to the business,
finances and
operations of the Company and
materials relating to the offer and sale of the Securities which have been
specifically requested by Purchaser,
including without
limitation the Company's
Annual Report on Form 10-K for the Year
ended December 31, 2003, Quarterly
Reports on Form 10-Q for the periods ended March 31, 2004, June 30, 2004 and
September 30, 2004 filed with the SEC (such documents, together with any
periodic report filed hereafter,
collectively,
the "SEC Documents")
as well as
any press release issued through the Closing Date. The Purchaser has been
afforded the opportunity to ask questions
of the Company, was
permitted to meet
with the Company's officers and has received what the
Purchaser believes to
be
complete and satisfactory answers to any
such inquiries.
Neither such inquiries
nor any other due diligence investigation conducted by the Purchaser or any
of
its representations shall modify, amend or affect the
Purchaser's right to rely
on the Company's representations and warranties contained in Article III. The
Purchaser understands that Purchaser's
investment in the
Securities involves a
high degree of risk, including without limitation the risks and
uncertainties
disclosed in the SEC Documents. Purchaser acknowledges it has reviewed the
disclosures presented under the caption "Risk
Factors" in the
Company's Form
10-Qs and Form 10-Ks.
2.5 Governmental Review. Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or
endorsement of the Securities.
2.6 Transfer or
Resale. Purchaser
understands that (i)
except as provided
in the Registration Rights Agreement, the Securities have not been and
are not
being registered under the Securities
Act or any state securities laws, and may
not be offered, sold, pledged or otherwise transferred unless subsequently
registered thereunder or an exemption from
such registration is available (which
exemption the Company expressly agrees may be established as
contemplated
in
clauses (b) and (c) of Section 5.1 hereof); (ii) any sale of such Securities
made in reliance on Rule 144 under the Securities Act (or a successor rule)
("Rule 144") may be made only in accordance with the terms of Rule 144 and
further, if Rule 144 is not applicable,
any resale of such
Securities without
registration under the Securities Act under
circumstances
in which the
seller
may be deemed to be an underwriter (as that term is defined in the
Securities
Act) may require compliance with some other exemption under
the Securities Act
or the rules and regulations of the SEC thereunder in order for
such resale to
be allowed, (iii) the Company is under no
obligation to register such Securities
under the Securities Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder (in each case, other than
pursuant to this Agreement or the
Registration
Rights Agreement) and (iv) the
Company has agreed to register the shares of Common Stock as provided in the
Registration Rights Agreement. Prior to any transfer (other than a routine
transfer pursuant to Rule 144),
the Purchaser
shall deliver to the
Company an
opinion of counsel, in form and substance reasonably acceptable to the
Purchaser, that the shares are transferable
without prior
registration and any
transferee shall agree to restrictions on
transfers
substantially in the
form
provided pursuant to this Section 2.6.
The Purchaser consents to the Company
making a notation on its records and giving
instructions
to any transfer
agent
in order to implement the restrictions on transfer
established in this
Section
2.6.
2.7 Legends.
Purchaser understands that, subject to
Article V hereof, the
certificates for the Securities, until such time as the Securities been
registered under the Securities Act as
contemplated by the
Registration
Rights
Agreement or otherwise may be sold by the Purchaser pursuant to Rule 144
(subject to and in accordance with the procedures specified in Article V
hereof), the certificates for the
Securities will bear a restrictive legend (the
"Legend") in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE
SECURITIES
REPRESENTED HEREBY MAY NOT BE OFFERED OR SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT
FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS OR UNLESS
OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE
SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF A NOTE AND WARRANT PURCHASE
AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY, AND MAY BE OBTAINED BY HOLDER WITHOUT CHARGE.
2.8
Authorization;
Enforcement. This Agreement and the Registration Rights
Agreement have been duly and validly
authorized,
executed and delivered on
behalf of Purchaser and are valid and binding agreements of Purchaser
enforceable in accordance with their
respective terms, except to the extent that
such validity or enforceability may be
subject to or affected by any bankruptcy,
insolvency, reorganization, moratorium,
liquidation or similar laws relating to,
or affecting generally the enforcement of, creditors' rights or remedies of
creditors generally, or by other equitable
principles of general application.
2.9 Residency. Purchaser is a resident of the jurisdiction set
forth under Purchaser's name on the
signature page hereto executed by Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as of the
date
hereof and as of each Closing Date
that:
3.1 Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly
organized and existing in good standing under
the laws of the jurisdiction in which it is
incorporated, and has
the requisite
corporate power to own its properties and to
carry on its business as now being
conducted. The Company and each of its
subsidiaries
is duly qualified as a
foreign corporation to do business and is
in good standing in every jurisdiction
where the failure so to qualify or be in good standing would have a Material
Adverse Effect. "Material Adverse Effect" means
any effect which,
individually
or in the aggregate with all other effects,
reasonably
would be expected to
be
materially adverse to the business,
operations, properties, financial condition,
operating results or prospects of the
Company and its
subsidiaries, taken as
a
whole on a consolidated basis or on the
transactions contemplated hereby.
3.2
Authorization; Enforcement. (a) The Company has the
requisite corporate power and authority to
enter into and perform this Agreement
and the Registration Rights Agreement, and
to issue, sell and perform its
obligations with respect to the Securities
in accordance with the terms hereof
and thereof and the terms of the Securities
in accordance with the terms and
conditions of the Warrants; (b) the
execution, delivery and performance of this
Agreement and the Registration Rights
Agreement by the Company and the
consummation by it of the transactions
contemplated hereby and thereby
(including, without limitation, the
issuance of all of the Securities) have been
duly authorized by all necessary corporate
action and, except as set forth on
Schedule 3.2 hereof, no further consent or
authorization of the Company, its
board of directors, or its stockholders or
any other person, body or agency is
required with respect to any of the
transactions contemplated hereby or thereby;
(c) this Agreement, the Registration Rights
Agreement, certificates for the
Securities have been duly executed and
delivered by the Company; and (d) this
Agreement, the Registration Rights
Agreement, the Securities constitute legal,
valid and binding obligations of the
Company enforceable against the Company in
accordance with their respective terms,
except (i) to the extent that such
validity or enforceability may be subject
to or affected by any bankruptcy,
insolvency, reorganization, moratorium,
liquidation or similar laws relating to,
or affecting generally the enforcement of,
creditors' rights or remedies of
creditors generally, or by other equitable
principles of general application,
and (ii) as rights to indemnity and
contribution under the Registration Rights
Agreement may be limited by Federal or
state securities laws.
3.3 Capitalization. The capitalization of the Company as of
December 31, 2004, including the authorized
capital stock, the number of shares
issued and outstanding, the number of
shares reserved for issuance pursuant to
the Company's stock option plans, the
number of shares reserved for issuance
pursuant to securities (other than the
Warrants) exercisable for, or convertible
into or exchangeable for, any shares of
Common Stock and the number of shares to
be reserved for issuance upon exercise of
the Warrants is set forth on Schedule
3.3 hereof. All of such outstanding shares
of capital stock have been, or upon
issuance will be, validly issued, fully
paid and nonassessable. No shares of
capital stock of the Company (including the
Conversion Shares and the Warrant
Shares) are subject to preemptive rights or
any other similar rights of the
stockholders of the Company or any liens or
encumbrances. Except as disclosed in
Schedule 3.3 hereof, as of the date of this
Agreement, (i) there are no
outstanding options, warrants, scrip,
rights to subscribe for, calls or
commitments of any character whatsoever
relating to, or securities or rights
convertible into or exercisable or
exchangeable for, 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, (ii)
issuance of the Securities will not
trigger antidilution rights for any other
outstanding or authorized securities
of the Company, except as provided in
Schedule 3.3 hereof; and (iii) there are
no agreements or arrangements under which
the Company or any of its subsidiaries
is obligated to register the sale of any of
its or their securities under the
Securities Act (except the Registration
Rights Agreement and except as provided
in Schedule 3.3 hereof). The Company has
furnished to Purchaser true and correct
copies of the Company's Certificate of
Incorporation 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 "Bylaws").
The Company has set forth on Schedule
3.3 hereof all instruments and agreements
(other than the Certificate of
Incorporation and Bylaws) governing
securities convertible into or exercisable
or exchangeable for Common Stock of the
Company (and the Company shall provide
to Purchaser copies thereof upon the
request of Purchaser).
3.4 Issuance of Shares. The Company has currently 8,739,950
shares of Common Stock duly authorized and
reserved for issuance pursuant to the
conversion of the Notes and the exercise of
the Warrants. Such shares, as well
as any additional shares of Common Stock
subsequently authorized by the
Company's stockholders and Board of
Directors for issuance pursuant to the
conversion of the Notes and the exercise of
the Warrants, will be validly
issued, fully paid and non-assessable, and
free from all taxes, liens, claims
and encumbrances imposed or suffered by the
Company and will not be subject to
preemptive rights or other similar rights
of stockholders of the Company. The
Notes and Warrants are duly authorized and
validly issued, fully paid and
nonassessable, and free from all liens,
claims and encumbrances imposed or
suffered by the Company and are not and
will not be subject to preemptive rights
or other similar rights of stockholders of
the Company.
3.5 No Conflicts. The execution, delivery and performance of
this Agreement and the Registration Rights
Agreement by the Company, and the
consummation by the Company of transactions
contemplated hereby and thereby
(including, without limitation, the
issuance and reservation for issuance, as
applicable, of the Securities do not and
will not (a) result in a violation of
the Certificate of Incorporation or Bylaws
or (b) 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 U.S. federal and
state securities laws) applicable to the
Company or any of its subsidiaries, or
by which any property or asset of the
Company or any of its subsidiaries, is
bound or affected (except for such possible
conflicts, defaults, terminations,
amendments, accelerations, cancellations
and violations as would not,
individually or in the aggregate, have a
Material Adverse Effect). Neither the
Company nor any of its subsidiaries is in
violation of its Certificate of
Incorporation or other organizational
documents, and neither the Company nor any
of its subsidiaries, is in default (and no
event has occurred which has not been
waived which, with notice or lapse of time
or both, would put the Company or any
of its subsidiaries in default) under, nor
has there occurred any event giving
others (with notice or lapse of time or
both) 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, except
for possible violations, defaults or rights
as would not, individually or in the
aggregate, have a Material Adverse Effect.
The businesses of the Company and its
subsidiaries are not being conducted, and
shall not be conducted so long as a
Purchaser owns any of the Securities, in
violation of any law, ordinance or
regulation of any governmental entity,
except for possible violations the
sanctions for which either individually or
in the aggregate would not have a
Material Adverse Effect. Except as set
forth on Schedule 3.5 hereof, or except
(A) such as may be required under the
Securities Act in connection with the
performance of the Company's obligations
under the Registration Rights
Agreement, (B) filing of a Form D with the
SEC, and (C) compliance with the
state securities or Blue Sky laws of
applicable jurisdictions, 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 or any regulatory
or self-regulatory agency in order for it
to execute, deliver or perform any of
its obligations under this Agreement or the
Registration Rights Agreement or to
perform its obligations in accordance with
the terms hereof or thereof.
3.6 SEC Documents. Since December 31, 2003, the Company has
timely filed the SEC Documents required to
be filed by it with the SEC pursuant
to the reporting requirements of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act"). The Company has made
available to the Purchaser true and
complete copies of the SEC Documents,
except for exhibits, schedules and
incorporated 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 light of the
circumstances under which they were made,
not misleading. None of the statements made
in any such SEC Documents which is
required to be updated or amended under
applicable law has not been so updated
or amended. The consolidated financial
statements of the Company included in the
SEC Documents have been prepared in
accordance with U.S. generally accepted
accounting principles, consistently
applied, and the rules and regulations of
the SEC during the periods involved (except
(i) as may be otherwise indicated in
such consolidated financial statements or
the notes thereto, or (ii) in the case
of unaudited interim statements, to the
extent they do not include footnotes or
are condensed or summary statements) and
present accurately and completely the
consolidated financial position of the
Company and its consolidated subsidiaries
as of the dates thereof and the
consolidated results of their operations and
cash flows for the periods then ended
(subject, in the case of unaudited
statements, to normal year-end audit
adjustments). Except as set forth in the
consolidated financial statements or the
notes thereto of the Company included
in the SEC Documents, the Company has no
liabilities, contingent or otherwise,
other than (i) liabilities incurred in the
ordinary course of business
consistent with past practice subsequent to
the date of such financial
statements and (ii) obligations under
contracts and commitments incurred in the
ordinary course of business consistent with
past practice and not required under
generally accepted accounting principles to
be reflected in such financial
statements. To the extent required by the
rules of the SEC applicable thereto,
the SEC Documents contain a complete and
accurate list of all material
undischarged written or oral contracts,
agreements, leases or other instruments
to which the Company or any subsidiary is a
party or by which the Company or any
subsidiary is bound or to which any of the
properties or assets of the Company
or any subsidiary is subject (each a
"Contract"). None of the Company, its
subsidiaries or, to the best knowledge of
the Company, any of the other parties
thereto, is in breach or violation of any
Contract, which breach or violation
would have a Material Adverse Effect. No
event, occurrence or condition exists
which, with the lapse of time, the giving
of notice, or both, would become a
default by the Company or its subsidiaries
thereunder which would have a
Material Adverse Effect.
3.7 Absence of Certain Changes. Since September 30, 2004,
there has been no material adverse change
and no materi
