NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (this "AGREEMENT") is made this 25th
day of
October 2002, by and between CRITICAL HOME
CARE, INC., a Nevada corporation
(formerly known as New York Medical Inc.
and Mojave Southern, Inc.), with
headquarters located 762 Summa Avenue,
Westbury, NY 11590 (the "COMPANY"), and
the undersigned investor (the
"INVESTOR").
W I T N E S S E T H
WHEREAS, the Company is seeking to raise up to $2,000,000 through
the
sale of convertible promissory notes in
private placement (the "Private
Placement") pursuant to Rule 506 of
Regulation D under the Securities Act of
1933, as amended (the "Securities Act"),
solely to accredited investors
(collectively, the "Private Placement
Investors"), including the Investor;
WHEREAS, the Company wishes to induce the Investor to loan to
the
Company and the Investor wishes to loan to
the Company, subject to the terms and
conditions set forth herein, the principal
amount set forth on the signature
page of this Agreement; and
NOW, THEREFORE, for and in consideration of the premises and the
mutual
agreements contained herein and for other
good and valuable consideration, the
receipt and sufficiency of which are hereby
acknowledged, the parties hereto
agree as follows:
1. LOAN.
(a)
Subject to the terms and conditions set forth herein,
the Investor hereby offers and subscribes
to loan to the Company the amount set
forth after the Investor's name on the
signature page of this Agreement (the
"LOAN") by depositing such amount in the
Escrow Account by check or wire
transfer and execution and delivery of this
Agreement and the other documents
identified in Section 3 of this
Agreement.
(b)
The net proceeds of the Loan shall be used solely for
working capital.
2. NOTE. The
terms of the Loan shall be set forth in and evidenced
by a Convertible Promissory Note in favor
of the Investor (the "NOTE") in
substantially the form provided to the
Investor. Such Note shall be in the
initial principal amount of the Loan, set
forth after the Investor's name on the
signature page to this Agreement.
3. MUTUAL
DELIVERIES; ACCEPTANCE OF SUBSCRIPTIONS.
(a)
Upon the delivery by the Investor of the Loan proceeds
to the Escrow Account (as provided in
Section 1 above) and the Investor's
delivery to the Company of (i) an
originally executed copy of this Agreement and
(ii) an executed original of the Purchaser
Questionnaire and Statement in the
form provided to the Investor (the
"PURCHASER STATEMENT"), the Company shall
accept or reject, within five (5) business
days, the Investor's subscription, in
its sole discretion. Upon any rejection,
the Company shall instruct the Escrow
Agent to return such Investor's funds to
Investor, without interest. In the
event the Investor's subscription is
accepted, the Company shall deliver notice
of acceptance to the Escrow Agent and upon
closing of such subscription, shall
within five (5) business days time after
the Closing deliver to the Investor or
to the designated representative of such
Investor an originally executed Note
and an executed copy of this Agreement. The
Closing of this Private Placement
shall not occur unless and until the
aggregate of $250,000 in principal amount
of Loans shall have been subscribed for by
Private Placement Investors.
(b)
Execution and delivery of this Agreement shall
constitute a binding offer to make the
Loan
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and purchase the Note by the undersigned
which may be accepted or rejected by
the Company in its sole discretion, but
which may not be revoked by the Investor
without the Company's prior written
consent.
4.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents and warrants to the
Investor that:
(a)
The Company has been duly organized and is validly
existing as a corporation in good standing
under the laws of the State of
Nevada. The Company has the corporate power
and authority to enter into this
Agreement and to deliver the Note and to
perform its obligations hereunder and
thereunder. The execution and delivery by
the Company of this Agreement and the
Note and the consummation by the Company of
the transactions contemplated hereby
and thereby have been duly authorized by
all necessary corporate action on the
part of the Company. At the time of funding
of the Loan and delivery of this
Agreement and the Note by the Company, this
Agreement and the Note will
constitute valid and binding obligations of
the Company enforceable against it
in accordance with their respective terms,
subject to the effects of any
applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting creditors' rights generally and o
the application of equitable
principles in any proceeding (legal or
equitable).
(b)
The execution, delivery and performance by the Company
of this Agreement and the Note and the
consummation of the transactions
contemplated hereby and thereby do not and
will not breach or constitute a
default under any applicable law or
regulation or of any agreement, judgment,
order, decree or other instrument binding
on the Company which breach or default
could reasonably by expected to have a
material adverse effect on the Company
taken as a whole.
(c)
For a period of six months from the date hereof, the
Company will not issue any shares of its
Common Stock, including any Conversion
Shares (as defined in Section 5(c) below),
or any form of stock, warrant,
option, derivative security, or any other
security convertible into or
exchangeable for shares of common Stock of
the Company for a price per share for
such Common Stock or Conversion Shares of
less than $1.00 per shares. In the
event that that the Company issues any
shares of Common Stock in breach of this
provision, the Conversion Rate (as defined
in the Note shall be reduced to the
per shares price at which the additional
shares of Common Stock are issued or
deemed to be issuable.
(d)
So long as any Note is outstanding in the series of
Notes sold pursuant to the Private
Placement, the Company shall not issue any
security convertible into or exchangeable
for shares of common Stock of the
Company, or Conversion Shares, or any
option, warrant, derivative security or
any other security for the purchase
thereof, containing anti-dilution terms
which create a so-called "toxic
convertible" or "death spiral convertible",
which permits continuous upward adjustment
of the numbers of shares of Common
Stock or of underlying conversion shares,
which may be purchased pursuant to
such security based upon the declining
market price of the Common Stock or the
Conversion Shares.
5.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR. The
Investor hereby represents and warrants to
the Company that:
(a)
The Investor has the power and authority to enter into
this Agreement and to perform its
obligations hereunder and thereunder. The
execution and delivery by the Investor of
this Agreement and the consummation by
the Investor of the transactions
contemplated hereby and thereby have been duly
authorized by all necessary action on the
part of the Investor. This Agreement
has been duly executed and delivered by the
Investor and constitutes a valid and
binding obligation of the Investor,
enforceable against the Investor in
accordance with its terms, subject to the
effects of any applicable bankruptcy,
insolvency, reorganization, moratorium or
similar laws affecting creditors'
rights generally and to the application of
equitable principles in any
proceeding (legal or equitable). As
applicable, the undersigned has reached the
age of majority in the state in which the
undersigned resides.
(b)
The execution, delivery and performance by the Investor
of this Agreement and the consummation of
the transactions contemplated hereby
and thereby do not and will not breach or
constitute a default
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under any applicable law or regulation or
of any agreement, judgment, order,
decree or other instrument binding on the
Investor.
(c)
Investor is acquiring the Note and any shares (the
"Conversion Shares") of the Company's
Common Stock (as such term is defined in
the Note) issuable upon conversion of the
Note for Investor's own account as
principal, not as a nominee or agent, for
investment purposes only, and not with
a view to, or for, resale, distribution
thereof in whole or in part, and no
other person has a direct or indirect
beneficial interest in such Note or the
Conversion Shares. Further, Investor does
not have any contract, undertaking,
agreement or arrangement with any person to
sell, transfer or grant an interest
in the Note or the Conversion Shares to any
third person.
(d)
Investor acknowledges his understanding that the
offering and sale of the Note, and the
conversion of the Note and issuance of
the Conversion Shares is intended to be
exempt from registration under the
Securities Act by virtue of the provisions
of Rule 506 of Regulation D
promulgated thereunder ("Regulation D"). In
furtherance thereof, Investor
represents and warrants to and agrees with
the Company and its affiliates as
follows:
(i)
Investor is an "accredited investor" as that
term is defined in Rule 501 of Regulation D;
(ii)
Investor is experienced in making investments of
the kind described in this Agreement and the Note;
(iii) Investor
is able, by reason of the business and
financial experience of the Investor and its professional advisors
(who
are not affiliated with or compensated in any way by the company or
any
of its affiliates or selling agents), to protect Investor's own
interests in connection with the transactions described in this
Agreement; and
(iv)
Investor has the financial ability to bear the
economic risk of Investor's investment, has adequate means for
providing
for Investor's current needs and personal contingencies, has no
need for
liquidity with respect to Investor's investment in the Company, and
is
able to afford the entire loss of Investor's investment in the
Company.
(e)
Investor has been furnished with and had an opportunity
to review the public filings of Mojave
Southern, Inc. (also known as New York
Medical Inc.) with the Securities and
Exchange Commission, including, without
limitation the Form 8-K for September 26,
2002, the Schedule 14(f) filed on
September 19, 2002, the Annual Report on
Form 10-KSB for the period ended
December 31, 2001, and Quarterly Report on
Form 10-QSB for the quarter ended
June 30, 2002, attached as Exhibits 2, 3, 4
and 5, respectively, to the
Disclosure Package.
(f)
Investor has been furnished with and had an opportunity
to review the Confidential Memorandum,
dated September 27, 2002 of the Company.
The acquisition by Critical Home Care Inc.
("CHCI") of Mojave Southern, Inc.
occurred on September 26, 2002. All of the
18,000,000 issued and outstanding
shares of CHCI were converted into
18,000,000 shares of the Company's Common
Stock. The Company shall have the right to
convert the Loans, evidenced by the
Notes to be sold in the Private Placement
into the Company's Common Stock at the
rate of $1.00 per share, subject to
adjustment. Accordingly, if the minimum of
$250,000 of Notes being offered for sale in
the Private Placement are sold, they
will be convertible into 250,000 shares or
up to a maximum of $2 Million of
Notes sold will be convertible into 2
million shares of the Company's Common
Stock.
(g)
Investor has been furnished with and had an opportunity
to review the audited financial statements
of CHCI, as of and for the year ended
December 31, 2001 attached hereto as
Exhibit 2 and the unaudited financial
statements CHCI as at and for the six
months ended June 30, 2002, attached
hereto as Exhibit 2. The undersigned ahs
been supplied with or has sufficient
access to all information, including
financial statements and other information
of the Company and has been afforded that
opportunity to ask questions of and
receive answers concerning such information
to which a reasonable investor would
attach significance in making investment
decisions, so that as a reasonable
investor the undersigned has been able to
make the undersigned's decision to
purchase the securities.
(h)
Investor understands than an investment in the Notes and
the Conversion Shares, if the Note
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<PAGE>
is converted, involves a high degree of
risk.
THE FOLLOWING FACTORS ARE NOT INTENDED TO
BE A COMPLETE LIST OF THE GENERAL OR
SPECIFIC RISKS RELATING TO THE INVESTMENT
IN THE COMPANY. ALTHOUGH ADDITIONAL
RISK FACTORS RELATING TO AN INVESTMENT IN
THE COMPANY ARE DESCRIBED THROUGHOUT
THIS NOTE PURCHASE AGREEMENT, THIS NOTE
PURCHASE AGREEMENT DOES NOT CONTAIN A
COMPLETE LIST OF RISK FACTORS RELATED TO
THE PURCHASE OF SECURITIES.
(i)
Investor understands the Conversion Shares, if any when
issued, will be restricted securities that
are not eligible for immediate resale
in any public market in the absence of an
effective registration statement or an
exemption under federal and state
securities laws. Moreover, even if such
Conversion Shares may be resold there can
be no assurance that a liquid public
market for the Company's Common Stock will
exist or that the Conversion Shares
may be sold for a price at or near the
conversion price at or near the
conversion price under the Note.
(j)
Investor understands that investment in the Company is
an illiquid investment. In particular,
Investor recognizes that Investor may not
and represents, warrants and agrees that
Investor will not sell or otherwise
transfer the Note or Conversion Shares
without registration under the Securities
Act or an exemption therefrom and a
favorable opinion of counsel for the Company
to that effect is obtained (if requested by
the Company). Investor fully
understands and agrees that Investor must
bear the economic risk of Investor's
purchase because, among other reasons, the
Note and the Conversion Shares have
not been registered under the Securities
Act or under the securities laws of any
state and, therefore, cannot be resold,
pledged, assigned or otherwise disposed
of unless such securities are subsequently
registered under the Securities Act
and under the applicable securities laws of
such states or an exemption from
such registration is available.
(k)
Investor has had the opportunity to engage the services
of an investment advisor, attorney and/or
accountant to read all of the
documents furnished or made available by
the Company to the Investor in
connection with this investment and to
evaluate the merits and risks of this
investment. The undersigned in making the
decision to purchase the securities
has relied upon independent investigations
made by him or it or his or its
representations, if any. The undersigned
has and/or his or its advisors have had
a reasonable opportunity to ask questions
and receive answers from the Company
concerning the securities.
(l)
Neither Investor nor any associate of Investor (i) is a
member of the National Association of
Securities Dealers, Inc. ("NASD"), (ii) is
a person associated with a member of the
NASD, or (iii) has made a loan to any
NASD member. Neither Investor nor any
associate of Investor, as defined below,
is an owner of stock or other securities of
any NASD member (other than
securities purchased in the open market).
The NASD's By-Laws define the term
"member" to mean any broker or dealer
admitted to membership in the NASD. The
NASD's By-Laws define a "person associated
with a member" to mean every sole
proprietor, partner, officer, director or
branch manager of any member, or any
natural person occupying a similar status
or performing similar functions, or
any natural person engaged in the
investment banking or securities business who
is directly or indirectly controlling or
controlled by such member (for example,
any employee), whether or not such person
is registered or exempt from
registration with the NASD.
6.
REGISTRATION RIGHTS.
(a)
Defined Terms. As used in this Section 6, terms defined
elsewhere herein shall have their assigned
meanings and each of the following
terms shall have the following meanings
(such definitions to be applicable to
both the plural and singular of the terms
defined):
(i)
REGISTERABLE SECURITIES. The term "REGISTERABLE
SECURITIES" shall mean any of the Conversion Shares, including
any
shares of the Company's Common Stock or other securities received
in
connection with any stock split, stock dividend, merger,
reorganization,
recapitalization, reclassification or other distribution payable
or
issuable upon shares of the Company's Common Stock. For the
purposes of
this Agreement, securities will cease to be Registerable Securities
upon
the earliest to occur of (A) a registration
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<PAGE>
statement under the
Securities Act covering such Registerable Securities
has been declared effective and (1) such Registerable Securities
have
been disposed of pursuant to such effective registration statement
or
(2) such registration statement has remained effective for 270
consecutive days, (B) such Registerable Securities are distributed
to
the public pursuant to the Securities Act or pursuant to an
exemption
from the registration requirements of the Securities Act,
including, but
not limited to, Rules 144 and 144A promulgated under the Securities
Act,
or (C) such Registerable Securities have been otherwise transferred
and
the Company, in accordance with applicable law and regulations,
has
delivered new certificates or other evidences of ownership for
such
securities which are not subject to any stop transfer order or
other
restriction on transfer.
(ii)
RIGHTSHOLDERS. The term "RIGTHSHOLDERS" shall
include the Investor, all successors and assigns of the Investor,
and
all transferees of Registerable Securities where such transfer
affirmatively includes the transfer and assignment of the
rights,
representations, warranties, covenants, obligations and liabilities
of
the transferor Rigthsholder under this Agreement with respect to
the
transferred Registerable Securities; provided, however, that the
term
"RIGTHSHOLDERS" shall not include any person or entity who has
sold,
transferred, or assigned all of such person's or entity's
Registerable
Securities.
(iii) The words
"hereof," "herein" and "hereunder" and
words of similar import when used in this Section 6 shall refer to
this
Section 6 as a whole and not to any particular provision of this
Section
6, and subsection, paragraph, clause, schedule and exhibit
references
are to this Section 6 unless otherwise specified.
(b)
IMMEDIATE REGISTRATION.
(i)
The Company shall file with the Securities and
Exchange Commission (the "Commission"), no later than (A) 120
days
following completion of the Private Placement (the "Closing Date"),
a
registration statement registering for resale all of the
Registerable
Securities held by each Rightsholder: provided that such
Rightsholder
completes, dates, signs and returns a questionnaire (a "SELLING
SECURITYHOLDER QUESTIONNAIRE") providing information concerning,
among
other matters, such Rightsholder, such Rightsholder's equity
ownership
in the Company and such Rigthsholder's plan of distribution of
the
Rightsholder's Registerable Securities no later than ten days
following
the distribution of a Selling Securityholder Questionnaire to
such
Righsholder. The Company shall use its best efforts to cause
such
registration statement to be declared effective by the Commission
as
promptly following the filing of such registration statement as
is
commercially reasonable. The Company shall provide the Selling
Securityholder Questionnaire to each Rightholder promptly following
the
Closing Date.
(ii)
Registration Expenses (as defined in Paragraph
6(e) hereof) in connection with the registration required under
Paragraph 6(b)(i) above, subject to the provisions of Section
6(e),
shall be borne by the
Company, but the Company shall not be responsible
for the payment of any underwriter's discount, commission or
selling
concession expenses in connection with any of the Registerable
Securities.
(c)
PIGGY-BACK REGISTRATION.
(i)
If, at any time on or after the Closing Date and
on or prior to two years from the Closing Date, the Company
proposes to
file a registration statement under the Securities Act with respect
to
an offering by the Company or any other party of any class of
equity
security similar to any Registerable Securities (other than a
registration statement on Form S-4 or S-8 or any successor form or
a
registration statement filed solely in connection with an
exchange
offer, a business combination transaction or an offering of, or
reconfirmation offer with respect to, securities solely to the
existing
stockholders or employees of the Company), then the Company, on
each
such occasion, shall give written notice (each, a the "COMPANY
PIGGY-BACK NOTICE") of such proposed filing to all of the
Rightsholders
owning Registerable Securities at least fifteen days before the
anticipated filing date of such registration statement, and such
Company
Piggy-Back Notice also shall be required to offer to such
Rightsholders
the opportunity to register such aggregate number of
Registerable
Securities as each such Rightsholder may request. Each such
Rightsholder
shall have the right, exercisable for the five days immediately
following the giving of a Company Piggy-Back Notice, to request,
by
written notice (each, a "HOLDER NOTICE") to the Company, the
inclusion
of all or any portion of the
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Registerable Securities of such Rightsholders in such
registration
statement. The Company shall use reasonable efforts to cause
the
managing underwriter(s) of a proposed underwritten offering to
permit
the inclusion of the Registerable Securities which were the subject
of
all Holder Notices in such underwritten offering on the same terms
and
conditions as any similar securities of the Company included
therein.
Notwithstanding anything to the contrary contained in this
Subparagraph
6(c)(i), if the managine underwriter(s) of such underwritten
offering or
any proposed underwritten offering delivers a written opinion to
the
Rightsholders of Registerable Securities which were the subject of
all
Holder Notices that the total amount and kind of securities which
they,
the Company and any other person intend to include in such offering
is
such as to materially and adversely affect the success of such
offering,
then the amount of securities to be offered for the accounts of
such
Rightsholders and persons other than the Company shall be
eliminated or
reduced pro rata (based oon the amount of securities owned by
such
Rightsholders and other persons which carry registration rights) to
the
extent necessary to reduce the total amount of securities to be
included
in such offering to the amount recommended by such managing
underwriter(s) in its written opinion.
(ii)
NUMBER OF PIGGY-BACK REGISTRATIONS; EXPENSES.
The obligations of the Company under this Paragraph 6(c) shall
be
unlimited with respect to each Rightsholder. Subject to the
provisions
of Paragraph 6(e) hereof, the Company will pay all Registration
Expenses
in connection with any registration of Registerable Securities
effected
pursuant to this Paragraph 6(c), but the Company shall not be
responsible for the payment of any underwriter's discount,
commission or
selling concession expenses in connection therewith.
(iii) Withdrawal
or Suspension of Registration
Statement. Notwithstanding anything contained to the contrary in
this
Paragraph 6(c), the Company shall have the absolute right,
whether
before or after the giving of a Company Piggy-Back Notice or
Holder
Notice, to determine not to file a registration statement to which
the
Rightsholders shall have the right to include their
Registerable
Securities therein pursuant to this Paragraph 6(c), to withdraw
such
registration statement or to delay or suspend pursuing the
effectiveness
of such registration statement. In the event of such a
determination
after the giving a Company Piggy-Back Notice, the Company shall
give
notice of such determination to all Rightsholders and, thereupon,
(A) in
the case of a determination not to register or to withdraw such
registration statement, the Company shall be relieved of its
obligation
under this Paragraph 6(c) to register any of the Registerable
Securities
in connection with such registration and (B) in the case of a
determination to delay the registration, the Company shall be
permitted
to delay or suspend the registration of Registerable Securities
pursuant
to this Paragraph 6(c) for the same period as the delay in the
registration of such other securities. No registration effected
under
this Paragraph 6(c) shall relieve the Company of its obligation
to
effect any registration upon demand otherwise granted to a
Rightsholder
under Paragraph 6(b) hereof or any other agreement with the
Company.
(d)
REGISTRATION PROCEDURES.
(i)
OBLIGATIONS OF THE COMPANY. The Company will, in
connection with any registration pursuant to Paragraph 6(b) or
(c)
hereof, as expeditiously as possible:
(A)
prepare and file with the Commission a
registration statement under the Securities Act on any
appropriate from chosen by the Company, in its sole discretion,
which shall be available for the sale of all Registerable
Securities in accordance with the intended method(s) of
distribution thereof set forth in all applicable demand
requests, tag-along requests and Holder Notices, and use its
commercially reasonable best efforts to cause such registration
statement to become effective as soon thereafter as reasonably
practicable, but in no event more than 120 days after receipt
of
such notices or requests; PROVIDED, that, at least fifteen
business days before filing with the Commission of such
registration statement, the Company shall furnish to each
Rightsholder whose Registerable Securities are included therein
draft copies of such registration statement, including all
exhibits thereto and documents incorporated by reference
therein, and, upon the reasonable request of any such
Rightsholder, shall continue to provide drafts of such
registration statement until filed, and, after such filing, the
Company shall, as diligently as practicable, provide to each
such Rightsholders such
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<PAGE>
number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus),
all exhibits thereto and documents incorporated by reference
therein and such other documents as such Rightsholder may
reasonably request in order to facilitate the disposition of
the
Registerable Securities owned by such Rightsholder and included
in such registration statement; PROVIDED, FURTHER, the Company
shall modify or amend the registration statement as it relates
to such Rightsholder as reasonably requested by such
Rightsholder and received by the business within five (5)
business days prior to the filing, and shall reasonably
consider
other changes to the registration statement (but not including
any exhibit or document incorporated therein by reference)
reasonably requested by such Rightsholder and received by the
business within (5) business days prior to the filing, in light
of the requirements of the Securities Act and any other
applicable laws and regulations; and PROVIDED, FURTHER, that
the
obligation of the Company to effect such registration and/or
cause such registration statement to become effective, may be
postponed for (1) such period of time when the financial
statements of the Company required to be included in such
registration statement are not available (due solely to the
fact
that such financial statements have not been prepared in the
regular course of business of the Company) or (2) any other
BONA
FIDE corporate purpose, but then only for a period not to
exceed
90 days;
(B)
prepare and file with the Commission
such
amendments and post-effective amendments to a registration
statement as may be necessary to keep such registration
statement effective for up to nine months; and cause the
related
prospectus to be supplemented by any required prospectus
supplement, and as o supplemented to be filed to the extent
required pursuant to Rule 424 promulgated under the Securities
Act, during such nine-month period; and otherwise comply with
the provisions of the Securities Act with respect to the
disposition of all Registerable Securities covered by such
registration statement during the applicable period in
accordance with the intended method(s) of disposition of such
Registerable Securities set forth in such registration
statement, prospectus or supplement to such prospectus;
(C)
notify the Rightsholders whose
Registerable Securities are included in such registration
statement and the managing underwrite(s), if any, of an
underwritten offering of any of the Registerable Securities
included in such registration statement, and confirm such
advice
in writing, (1) when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect
to
a registration statement or any post-effective amendment, when
the same has become effective, (2) of any request by the
Commission for amendments or supplements to a registration
statement or related prospectus or for additional information,
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of a registration statement or the
initiation of any proceedings for that purpose, (4) if at any
time the representations and warranties of the Company
contemplated by clause (1) of Section 4(d)(i)(J) hereof cease
to
be true and correct, (5) of the receipt by the Company of any
notification with respect to the suspension of the
qualification
of any of the Registerable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose and (6) of the happening of any event which
makes any statement made in the registration statement, the
prospectus or any document incorporated therein by reference
untrue or which requires the making of any changes in the
registration statement or prospectus so that such registration
statement, prospectus or document incorporated by reference
will
not contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(D)
make reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement at the earliest possible moment and to
prevent the entry of such an order;
(E)
use reasonable efforts to register or
qualify the Registerable Securities included in such
registration statement under such other securities or blue sky
laws of such jurisdictions as any Rightsholder whose
Registerable Securities are included in such registration
statement reasonably
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requests in writing and do any and all other acts and thing
which may be necessary or advisable to enable such Rightsholder
to consummate the disposition in such jurisdictions of such
Registerable Securities; PROVIDED, that the Company will not be
required to (1) qualify generally to do business in any
jurisdiction where it would not otherwise be required to
qualify
but for this Subparagraph 4(d)(i)(E), (2) subject itself to
taxation in any such jurisdiction or (3) take any action which
would subject it to general service of process in any such
jurisdiction;
(F)
make available for inspection by each
Rightsholder whose Registerable Securities are included in such
registration, any underwriter(s) (collectively, the
"INSPECTORS"), all financial and other records, pertinent
corporate documents and properties of the Company
(collectively,
the "RECORDS") as shall be reasonably necessary to enable them
to exercise their due diligence responsibility (or establish a
due diligence defense), and cause the officers, directors and
employees of the Company to supply all information reasonably
requested by any such Inspector in connection with such
registration statement; PROVIDED, that records which the
Company
determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed
by the Inspectors, unless (1) the release of such Records is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (2) the disclosure of such Records is
required by any applicable law or regulation or any
governmental
regulatory body with jurisdiction over such Rigthsholder or
underwriter; PROVIDED, FURTHER, that such Rightsholder or
underwriter(s) agree
that such Rigthsholder or underwriter(s)
will, upon learning the disclosure of such Records is sought in
a c
