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Exhibit 99.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this " Agreement "),
dated December 19, 2006, between Nova Biosource Fuels, Inc., a
Nevada corporation (the " Company "), and the purchaser
identified on the signature page hereto (the " Purchaser
").
RECITALS
A.
Subject to the terms and conditions set forth in this Agreement and
pursuant to Section 4(2) of the Securities Act (as defined below)
and/or Rule 506 of Regulation D promulgated thereunder, the Company
desires to issue and sell to the Purchaser, and the Purchaser
desires to purchase from the Company certain securities of the
Company, as more fully described in this Agreement.
B.
Contemporaneously with this Agreement, the Company intends to enter
into substantially identical agreements (the " Other Purchase
Agreements ") with other purchasers (collectively with the
Purchaser, the " Purchasers ") whose obligations with regard
to the Company and under the Transaction Documents (as defined
below) will be several and not joint with the obligations of any
other Purchasers, including the Purchaser.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
contained in this Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, the Company and the Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1
Definitions . In addition to the terms defined elsewhere in
this Agreement, for all purposes of this Agreement, the following
terms shall have the meanings indicated in this Section 1.1:
" Action " means any action, suit, inquiry, notice of
violation, proceeding (including any partial proceeding such as a
deposition) or investigation pending or threatened in writing
against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator,
governmental or administrative agency, regulatory authority
(federal, state, county, local or foreign), stock market, stock
exchange or trading facility.
" Affiliate " means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144.
" Business Day " means any day except Saturday, Sunday
and any day which shall be a federal legal holiday or a day on
which banking institutions in the State of New York are authorized
or required by law or other governmental action to close.
" Closing " means the closing of the
purchase and sale of the Securities pursuant to Article II
.
" Commission " means the Securities and Exchange
Commission.
" Common Stock " means the common stock of the Company,
$0.001 par value per share.
" Disclosure Materials " has the meaning set forth in
Section 3.1(h).
" Effective Date " means the date that the Registration
Statement required by Section 2(a) of the Registration Rights
Agreement is first declared effective by the Commission.
" Exchange Act " means the Securities Exchange Act of
1934, as amended.
" Lien " means any lien, charge, encumbrance,
security interest, right of first refusal or other restrictions of
any kind.
" Per Unit Purchase Price " means the price per Unit set
forth on Schedule A hereto.
" Person " means an individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of
any kind.
" Proceeding " means an action, claim, suit,
investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether
commenced or threatened.
" Registration Statement " means a registration statement
meeting the requirements set forth in the Registration Rights
Agreement and covering the resale by the Purchasers of the
Registrable Securities (as defined in the Registration Rights
Agreement).
" Registration Rights Agreement " means the Registration
Rights Agreement, dated as of the date of this Agreement, among the
Company and the Purchasers, in the form of Exhibit B .
" Rule 144 " means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted
by the Commission having substantially the same effect as such
Rule.
" Securities " means the Shares, the Warrants and the
Warrant Shares.
" Securities Act " means the Securities Act of 1933, as
amended.
" Shares " means the shares of Common Stock issued to the
Purchaser pursuant to this Agreement at the Closing.
" Subsidiary " means any subsidiary of the Company that
is required to be listed in Schedule 3.1(b) .
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" Trading Day " means (i) a day on which
the Common Stock is traded on a Trading Market, or (ii) if the
Common Stock is not listed on a Trading Market, a day on which the
Common Stock is traded in the over-the-counter market, as reported
by the OTC Bulletin Board System, or (iii) if the Common Stock is
not quoted on the OTC Bulletin Board System, a day on which the
Common Stock is quoted in the over-the-counter market as reported
by The Pink Sheets, LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in
the event that the Common Stock is not listed or quoted as set
forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a
Business Day.
" Trading Market " means whichever of the New York Stock
Exchange, the American Stock Exchange, The NASDAQ Capital Market or
The NASDAQ Stock Market on which the Common Stock is listed or
quoted for trading on the date in question.
" Transaction Documents " means this Agreement, the
Warrants, the Registration Rights Agreement, the Other Purchase
Agreements and any other documents or agreements executed in
connection with the transactions contemplated hereunder.
" Warrant Exercise Price " means the price to purchase
one Warrant Share set forth on Schedule A thereto upon exercise of
such Warrant pursuant to the terms thereof.
" Warrants " means the Common Stock purchase warrants in
the form of Exhibit A , which are issuable to the Purchaser
pursuant to this Agreement at the Closing.
" Warrant Shares " means the shares of Common Stock
issuable upon exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1
Closing . Subject to the terms and conditions set
forth in this Agreement, at the Closing the Company shall issue and
sell to the Purchaser, and the Purchaser shall purchase from the
Company, the number of Units set forth on the signature page
hereto. The Closing shall take place on the date two Trading
Days after the date hereof (the " Closing Date ") at the
offices of Baker & McKenzie LLP, 2001 Ross Avenue, Suite 2300,
Dallas, Texas 75201 or at such other time and location as the
parties may agree.
2.2
Closing Deliveries .
(a)
At the Closing, the Company shall deliver or cause to be delivered
to the Purchaser, and the obligations of the Purchaser to close the
purchase and sale of the Securities shall be subject to the
fulfillment or satisfaction of, the following:
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(i)
A certificate evidencing the number of Shares set forth below the
Purchaser’s name on the signature page hereto plus a Warrant
to purchase the number of Warrant Shares included in the Units
being purchased hereby, as calculated pursuant to Schedule A
hereto, (the Shares and Warrants referred to collectively herein as
the " Units ") for the Per Unit Purchase Price. Each
Unit shall consist of one Share and the number of Warrants set
forth on Schedule A hereto.
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(ii)
The legal opinions of Woodburn & Wedge, special Nevada counsel
to the Company, and Baker & McKenzie LLP, special counsel to
the Company, each in agreed form, addressed to the
Purchaser.
(iii) The
Registration Rights Agreement duly executed by the Company.
(iv) The
representations and warranties made by the Company in Article III
shall be true and correct in all material respects as of the date
when made and as of the Closing Date as though made at that time,
all covenants, agreements and conditions contained in this
Agreement to be performed or complied with by the Company prior to
the Closing shall have been performed or complied with (or waived
by the Purchaser), and the Company shall have obtained any
approvals, consents and qualifications necessary to perform its
obligations hereunder.
(v)
The Company shall have delivered to the Purchaser at the Closing a
certificate signed on its behalf by its Chief Executive Officer
certifying that the conditions specified in Section 2.2 hereof have
been fulfilled.
(vi) At
the Closing, the Company shall have delivered to the Purchaser
copies of each of the following, in each case certified by the
Secretary of the Corporation to be in full force and effect on the
date of the Closing:
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(a)
the articles of incorporation of the Company as of the Closing
(which shall be the Articles) certified by the Secretary of State
of the State of Nevada as of a date not more than ten (10) days
prior to the Closing;
(b)
a good standing certificate with respect to the Company certified
by the Secretary of State of Nevada as of a date not more than ten
(10) days prior to the Closing;
(c)
the by-laws of the Company; and
(d)
resolutions of the Board, and, as necessary, the shareholders of
the Company, authorizing the execution, delivery and performance of
the Transaction Documents, and the transactions contemplated hereby
and thereby, including the issuance and sale of the shares of
Common Stock and the reservation of shares of Common Stock for
issuance upon exercise of the Warrants.
(vii) At the
Closing, the Company shall pay (or reimburse the Purchaser for) the
fees and expenses of the Purchaser specified in Section 5.1 as
payable by the Company.
(viii) As of the
Closing, the purchase of the Shares by the Purchaser shall be
legally permitted by all laws and regulations to which the
Purchaser and the Company is subject.
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(ix)
As of the Closing, all authorizations, approvals or permits of, or
filings with any governmental authority, including state securities
or "Blue Sky" offices, that are required by law in connection with
the lawful sale and issuance of the Securities, including the
exercise of the Warrants for Warrant Shares, shall have been duly
obtained by the Company, and shall be effective as of the
Closing.
(x)
All corporate and other proceedings in connection with the
transactions contemplated by the Transaction Documents, and all
documents and instruments incident to such transactions, shall be
satisfactory in form and substance to the Purchaser, and the
Purchaser shall have received at or prior to the Closing all such
documents as the Purchaser shall have requested.
(xi)
The Company shall have received net proceeds in the aggregate from
the sale of the Securities to the Purchasers under this Agreement
and the Other Purchase Agreements in an amount not less than the
amount set forth on Schedule A hereto.
(b)
At the Closing, the Purchaser shall deliver or cause to be
delivered to the Company, and the obligations of the Company to
close the purchase and sale of the Securities shall be subject to
the fulfillment or satisfaction of, the following:
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(i)
the product of the Per Unit Purchase Price and the number of Units
as set forth below the Purchaser’s name on the signature page
hereto, in United States dollars and in immediately available
funds, by wire transfer to the account set forth on Schedule A
hereto or to such other account designated in writing by the
Company for such purpose;
(ii)
the Registration Rights Agreement duly executed by the Purchaser;
and
(iii) the
representations and warranties of the Purchaser shall be true and
correct in all material respects (except for those representations
and warranties that are qualified by materiality, which shall be
true and correct in all respects) as of the date when made and as
of the Closing Date as though made at that time, and the Purchaser
shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the
Purchaser at or prior to the Closing Date.
(iv) The
Company shall have received net proceeds in the aggregate from the
sale of the Securities to the Purchasers under this Agreement and
the Other Purchase Agreements in an amount not less than the amount
set forth on Schedule A hereto.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company . The Company
hereby makes the following representations and warranties to the
Purchaser and to the Placement Agent (as defined below):
(a)
Organization and Qualification . Each of the Company
and each Subsidiary is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or organization (as
applicable), with the requisite power and authority to own and use
its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in
violation of any of the provisions of its respective articles of
incorporation, bylaws or other organizational or charter
documents. Each of the Company and each Subsidiary is duly
qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not,
individually or in the aggregate, have or reasonably be expected to
result in (i) an adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material and
adverse effect on the results of operations, assets, prospects,
business or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole, or (iii) an adverse impairment
to the Company’s ability to perform on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or
(iii), a " Material Adverse Effect ").
(b)
Subsidiaries . The Company has no direct or indirect
Subsidiaries other than those listed in Schedule 3.1(b)
. Except as disclosed in Schedule 3.1(b) , the Company
owns, directly or indirectly, all of the capital stock of each
Subsidiary free and clear of any and all Liens, and all the issued
and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of
preemptive and similar rights.
(c)
Authorization; Enforcement . The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations thereunder. The
execution, delivery and performance of each of the Transaction
Documents by the Company and the consummation by it of the
transactions contemplated thereby have been duly authorized by all
necessary corporate action on the part of the Company and its
shareholders and no further corporate action is required by the
Company or its shareholders in connection therewith. Each
Transaction Document has been duly executed by the Company and,
when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as rights to
indemnity and contribution may be limited by state or federal
securities laws or the public policy underlying such laws, as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally
and as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
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(d)
No Conflicts . The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated thereby do not and
will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s articles of
incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that
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 (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other
instrument or other understanding to which the Company or any
Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) result in
a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is
subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not, individually or in the
aggregate, have or reasonably be expected to result in a Material
Adverse Effect.
(e)
Filings, Consents and Approvals . The Company is not
required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental
authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction
Documents, other than: (i) the filing with the Commission of one or
more Registration Statements in accordance with the requirements of
the Registration Rights Agreement, (ii) notice filings required by
state securities laws, the failure of which to make will not affect
the validity of the Securities or the enforceability of this
Agreement, and (iii) those that have been made or obtained prior to
the date of this Agreement. The Company and its Subsidiaries
are unaware of any facts or circumstances that would reasonably be
expected to prevent the Company from obtaining or effecting any of
the registration, application or filings pursuant to the preceding
sentence.
(f)
Issuance of the Securities . The Securities have been
duly authorized and, when issued and paid for in accordance with
the applicable Transaction Documents, will be duly and validly
issued, fully paid and nonassessable, free and clear of all
Liens. The Company shall have reserved from its duly
authorized capital stock the maximum number of shares of Common
Stock issuable pursuant to this Agreement, the Other Purchase
Agreements and the Warrants in order to issue the Shares and the
Warrant Shares.
(g)
Capitalization . The authorized capital stock of the
Company consists solely of 500,000,000 shares of Common Stock and
5,000,000 shares of preferred stock, $0.0001 par value per
share. As of the date hereof prior to Closing:
(i) the number of shares of Common Stock set forth on Schedule
A hereto are issued and outstanding and no shares of Common Stock
are held in treasury, (ii) the number of shares of Common
Stock set forth on Schedule A hereto are reserved for future
issuance pursuant to the Company’s equity incentive plan and
pursuant to outstanding warrants and (iii) no shares of
preferred stock are issued and outstanding. All outstanding
shares of common stock are validly issued, fully paid and
nonassessable.
Except as disclosed in the SEC Reports (as defined below) or on
Schedule A hereto, (i) none of the Company’s capital stock is
subject to preemptive rights or any other
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similar rights or any liens or encumbrances
suffered or permitted by the Company; (ii) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any
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 capital stock of the Company or any of its Subsidiaries
or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any
capital stock of the Company or any of its Subsidiaries; (iii)
there are no outstanding debt securities, notes, credit agreements,
credit facilities or other agreements, documents or instruments
evidencing indebtedness of the Company or any of its Subsidiaries
or by which the Company or any of its Subsidiaries is or may become
bound which are required to be disclosed in an Exchange Act report,
(iv) there are no agreements or arrangements under which the
Company or any of its Subsidiaries is obligated to register the
sale of any of their securities under the Securities Act; (v) there
are no outstanding equity securities or instruments of the Company
or any of its Subsidiaries which contain any redemption or similar
provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is
or may become bound to redeem an equity security of the Company or
any of its Subsidiaries; (vi) there are no securities or
instruments containing anti-dilution or similar provisions that
will be triggered by the issuance of the Securities; (vii) the
Company does not have any stock appreciation rights or "phantom
stock" plans or agreements or any similar plan or agreement; and
(viii) the Company and its Subsidiaries have no liabilities or
obligations required to be disclosed in the SEC Reports but not so
disclosed in the SEC Reports, other than those incurred in the
ordinary course of the Company’s or its Subsidiaries’
respective businesses and which, individually or in the aggregate,
do not or would not have a Material Adverse Effect.
(h)
SEC Reports; Financial Statements . Since January 1,
2006, the Company has filed all reports required to be filed by it
under the Securities Act and the Exchange Act, including pursuant
to Section 13(a) or 15(d) thereof (the foregoing materials
including all exhibits and schedules thereto, being collectively
referred to herein as the " SEC Reports " and, together with
the Schedules to this Agreement and any other materials prepared by
the Company and delivered to you in writing, the " Disclosure
Materials "). As of their respective dates, the SEC
Reports complied in all material respects with the requirements of
the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and, except
to the extent superseded by an amended SEC Report filed at least
five (5) Business Days prior to the date hereof, none of the SEC
Reports or the Disclosure Materials, when filed or prepared, as
applicable, 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. The
financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis during the periods involved (" GAAP "), except as may
be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial
position of the Company and its consolidated Subsidiaries as of and
for the dates thereof and the results of
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operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments or as otherwise disclosed in
the SEC Reports.
(i)
Litigation . Except as disclosed in the SEC Reports,
there is no Action pending or, to the knowledge of the Company,
threatened that (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents or
the Securities or (ii) could, if there were an unfavorable
decision, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect, neither the
Company nor any Subsidiary, nor any director or officer thereof, is
or has been the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or
a claim of breach of fiduciary duty and there has not been, and to
the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any
current or former director or officer of the Company. The
Commission has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the
Company or any Subsidiary under the Exchange Act or the Securities
Act.
(j)
Transactions With Affiliates and Employees . Except as
set forth in the SEC Reports filed at least five (5) days prior to
the date hereof, none of the officers or directors of the Company
and, to the knowledge of the Company, none of the employees of the
Company is presently a party to any transaction with the Company or
any Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such
employee or, to the knowledge of the Company, any entity in which
any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner.
(k)
Internal Accounting and Disclosure Controls . The
Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 under the Exchange Act) that are
effective in ensuring that information required to be disclosed by
the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the rules and forms of the
Commission, including, without limitation, controls and procedures
designed in to ensure that information required to be disclosed by
the Company in the reports that it files or submits under the
Exchange Act is accumulated and communicated to the Company’s
management, including its principal executive officer or officers
and its principal financial officer or officers, as appropriate, to
allow timely decisions regarding required disclosure. Except
as disclosed in the SEC Reports, since March 31, 2006, neither the
Company nor any of its Subsidiaries have received any notice or
correspondence from any accountant relating to any material
weakness in any part of the system of internal accounting controls
of the Company or any of its Subsidiaries.
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(l)
Certain Fees . Except for dealings with the Placement
Agent (defined below), no brokerage or finder’s fees or
commissions are or will be payable by the Company to any broker,
financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the
transactions contemplated by this Agreement. The Purchaser
shall have no obligation with respect to any fees or with respect
to any claims (other than such fees or commissions owed by the
Purchaser pursuant to written agreements executed by the Purchaser
which fees or commissions shall be the sole responsibility of the
Purchaser) made by or on behalf of other Persons for fees of a type
contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
(m)
Certain Registration Matters . Assuming the accuracy
of the Purchaser’s representations and warranties set forth
in Section 3.2(c) through (g), no registration under the Securities
Act is required for the offer and sale of the Securities by the
Company to the Purchaser under the Transaction Documents. The
Company has not offered the Securities by means of any form of
general solicitation or general advertising, including but not
limited to the following: (A) any advertisement, article,
notice or other communication published in a newspaper or magazine
or similar media or broadcast over television or radio whether
closed circuit or generally available or (B) any seminar, meeting
or industry investor conference whose attendees were invited by any
general solicitation or general advertising. The Company has
not, and to its knowledge no one acting on its behalf has (i)
taken, directly or indirectly, any action designed to cause or to
result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of
the Shares or Warrants in violation of Regulation M under the
Exchange Act, (ii) bid for, purchased or paid any compensation for
soliciting purchases of any of the Securities or (iii) paid or
agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company, other than, in the
case of clauses (ii) and (iii), compensation paid to the Placement
Agent (as defined herein) in connection with the placement of the
Securities and, in the case of clause (iii), other than in
connection with the placement of the Company’s Common Stock
and Common Stock purchase warrants pursuant to the Securities
Purchase Agreements dated July 6, 2006, July 10, 2006 and July 11,
2006, respectively. As of the date hereof, the Company is eligible
to register the resale of its Common Stock on Form S-3 promulgated
under the Securities Act.
(n)
No Integrated Offering . None of the Company, its
Subsidiaries, any of their Affiliates, and any Person acting on
their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to by any security, under
circumstances that would require registration of the issuance of
any of the Securities under the Securities Act, whether through
integration with prior offerings or otherwise. None of the
Company, its Subsidiaries, their Affiliates and any Person acting
on their behalf will take any action or steps referred to in the
preceding sentence that would require registration of the issuance
of any of the Securities under the Securities Act or cause the
offering of the Securities to be integrated with other offerings
for purposes of any such applicable stockholder approval
provisions.
(o)
Investment Company . The Company is not, and upon
consummation of the sale of Securities, will not be, and is not,
and upon consummation of the sale of Securities, will not be an
Affiliate of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
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(p)
No Additional Agreements . The Company does not have
any agreement or understanding with the Purchaser or any other
Purchasers with respect to the transactions contemplated by the
Transaction Documents other than as specified in this Agreement and
the Other Purchase Agreements, respectively. This Purchase
Agreement is substantially identical with each of the Other
Purchase Agreements.
(q)
ERISA; Employee Relations. Each employee benefit plan
(as defined in Section 3(3) of ERISA) and any other plan, agreement
or arrangement for the benefit of any director, officer or employee
of the Company (each, an " Employee Benefit Plan ") has been
operated in material compliance with its terms and with all
applicable laws, including, but not limited to, ERISA and the
Code. All contributions due and payable on or before the
Closing in respect of any Employee Benefit Plan have been made in
full.
Neither the Company nor any of its Subsidiaries is a party to
any collective bargaining agreement or employs any member of a
union. The Company and its Subsidiaries believe that their
relations with their employees are good, except where such failure
would not, either individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. No executive
officer of the Company (as defined in Rule&n
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