SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT
(this “ Agreement ”) is dated as of June 17,
2008, by and among INTREPID TECHNOLOGY AND RESOURCES,
INC., an Idaho corporation (the “ Company
”), and the Buyers listed on Schedule I attached
hereto (individually, a “ Buyer ” or
collectively “ Buyers ”).
WITNESSETH
WHEREAS , the Company and the Buyer(s)
are executing and delivering this Agreement in reliance upon an
exemption from securities registration pursuant to Section 4(2)
and/or Rule 506 of Regulation D (“ Regulation
D ”) as promulgated by the U.S. Securities and
Exchange Commission (the “ SEC ”) under the
Securities Act of 1933, as amended (the “ Securities
Act ”);
WHEREAS , the parties desire that, upon
the terms and subject to the conditions contained herein, the
Company shall issue and sell to the Buyer(s), as provided
herein, and the Buyer(s) shall purchase (i) up to Three Hundred
Seventy-Five Dollars ($375,000) (the “ Purchase
Price ”) of secured convertible debentures in the form
attached hereto as Exhibit A (the “ Convertible
Debentures ”), which shall be convertible into shares
of the Company’s common stock, par value $0.005 per share
(the “ Common Stock ”, and as converted, the
“ Conversion Shares ”) and (ii) warrants
substantially in the form attached hereto as Exhibit B
(the “ Warrants ”), to acquire up to that
number of additional shares of Common Stock set forth opposite
such Buyer’s name on Schedule I (as exercised, the “
Warrant Shares ”) all of which shall be funded
within five (5) business days following the date hereof (the
“ Closing ”) in the respective amounts set
forth opposite each Buyer(s) name on Schedule I (the “
Subscription Amount ”);
WHEREAS , contemporaneously with the
execution and delivery of this Agreement, the parties hereto are
executing and delivering a Registration Rights Agreement (the
“ Registration Rights Agreement ”) pursuant
to which the Company has agreed to provide certain registration
rights under the Securities Act and the rules and regulations
promulgated there under, and applicable state securities
laws;
WHEREAS , on March 28, 2008, (i) the
Buyer, the Company, and each subsidiary of the Company entered
into a Security Agreement (all such security agreements shall be
referred to as the “ Security Agreement ”)
pursuant to which the Company and its wholly owned subsidiaries
agree to provide the Buyer a security interest in Pledged
Property (as this term is defined in the Security Agreement) to
secure the Obligations (as that term is defined in the Security
Agreements), and (ii) each subsidiary of the Company entered
into a Guaranty (the “ Guaranty ” and
collectively with the Security Agreement, the “
Security Documents ”) in favor of the Buyer
guarantying the Guaranteed Obligations (as defined in the
Guaranty), and the Buyer, the Company, and each subsidiary of
the Company desire to extent their obligations under the
Security Documents to include the obligations incurred by the
Company pursuant to these Transaction Documents (as defined
herein below);
WHEREAS , contemporaneously with the
execution and delivery of this Agreement, the parties hereto are
executing and delivering Irrevocable Transfer Agent Instructions
(the “ Irrevocable Transfer Agent Instructions
”);
WHEREAS , contemporaneously with the
execution and delivery of this Agreement, the Company will
amend, pursuant to amendments in substantially the form attached
hereto as Exhibit C , (i) Warrant No. IESV-01-03 to
purchase Fourteen Thousand (14,000) shares of Common Stock; (ii)
Warrant No. IESV-02-03 to purchase Fourteen Thousand (14,000)
shares of Common Stock; and (iii) Warrant No. IESV-03-03 to
purchase Fourteen Thousand (14,000) shares of Common Stock so
that, in each case, the exercise price will be reset to $0.005
(collectively, the “ Warrant Amendments
”);
WHEREAS , the Convertible Debentures, the
Conversion Shares, the Warrants, and the Warrants Shares
collectively are referred to herein as the “
Securities ”.
NOW, THEREFORE , in consideration of the
mutual covenants and other agreements contained in this
Agreement the Company and the Buyer(s) hereby agree as
follows:
1.
PURCHASE AND SALE OF CONVERTIBLE
DEBENTURES .
(a)
Purchase of Convertible Debentures .
Subject to the satisfaction (or waiver) of the terms and
conditions of this Agreement, each Buyer agrees, severally and
not jointly, to purchase at the Closing and the Company agrees
to sell and issue to each Buyer, severally and not jointly, at
the Closing, Convertible Debentures in amounts corresponding
with the Subscription Amount set forth opposite each
Buyer’s name on Schedule I hereto and the Warrants to
acquire up that number of Warrant Shares as set forth opposite
such Buyer’s name in column (5) on Schedule I .
(b)
Closing Date . The Closing of the
purchase and sale of the Convertible Debentures and Warrants
shall take place at 10:00 a.m. Eastern Standard Time on the
fifth (5 th ) business day following the date hereof,
subject to notification of satisfaction of the conditions to the
Closing set forth herein and in Sections 6 and 7 below (or such
later date as is mutually agreed to by the Company and the
Buyer(s)) (the “ Closing Date ”). The
Closing shall occur on the Closing Date at the offices of
Yorkville Advisors, LLC, 101 Hudson Street, Suite 3700, Jersey
City, New Jersey 07302 (or such other place as is mutually
agreed to by the Company and the Buyer(s)).
(c)
Form of Payment . Subject to the
satisfaction of the terms and conditions of this Agreement, on
the Closing Date, (i) the Buyers shall deliver to the Company
such aggregate proceeds for the Convertible Debentures and
Warrants to be issued and sold to such Buyer at the Closing,
minus the fees to be paid directly from the proceeds of such
Closing as set forth herein, and (ii) the Company shall
deliver to each Buyer, Convertible Debentures and Warrants which
such Buyer is purchasing at the Closing in amounts indicated
opposite such Buyer’s name on Schedule I, duly executed on
behalf of the Company.
2.
BUYER’S REPRESENTATIONS AND
WARRANTIES .
Each Buyer represents and warrants, severally
and not jointly, that:
(a)
Investment Purpose . Each Buyer is
acquiring the Securities for its own account for investment only
and not with a view towards, or for resale in connection with,
the public sale or distribution thereof, except pursuant to
sales registered or exempted under the Securities Act; provided,
however, that by making the representations herein, such Buyer
reserves the right to dispose of the Securities at any time in
accordance with or pursuant to an effective registration
statement covering such Securities or an available exemption
under the Securities Act. Such Buyer does not presently
have any agreement or understanding, directly or indirectly,
with any Person to distribute any of the Securities.
(b)
Accredited Investor Status . Each
Buyer is an “ Accredited Investor ” as that
term is defined in Rule 501(a)(3) of Regulation D.
(c)
Reliance on Exemptions . Each Buyer
understands that the Securities are being offered and sold to it
in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws
and that the Company is relying in part upon the truth and
accuracy of, and such Buyer’s compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of such Buyer set forth herein in order to
determine the availability of such exemptions and the
eligibility of such Buyer to acquire the Securities.
(d)
Information . Each Buyer and its
advisors (and his or, its counsel), if any, have been furnished
with all materials relating to the business, finances and
operations of the Company and information he deemed material to
making an informed investment decision regarding his purchase of
the Securities, which have been requested by such Buyer.
Each Buyer and its advisors, if any, have been afforded
the opportunity to ask questions of the Company and its
management. Neither such inquiries nor any other due
diligence investigations conducted by such Buyer or its
advisors, if any, or its representatives shall modify, amend or
affect such Buyer’s right to rely on the Company’s
representations and warranties contained in Section 3 below.
Each Buyer understands that its investment in the
Securities involves a high degree of risk. Each Buyer is
in a position regarding the Company, which, based upon
employment, family relationship or economic bargaining power,
enabled and enables such Buyer to obtain information from the
Company in order to evaluate the merits and risks of this
investment. Each Buyer has sought such accounting, legal
and tax advice, as it has considered necessary to make an
informed investment decision with respect to its acquisition of
the Securities.
(e)
No Governmental Review . Each Buyer
understands that no United States federal or state agency or any
other government or governmental agency has passed on or made
any recommendation or endorsement of the Securities, or the
fairness or suitability of the investment in the Securities, nor
have such authorities passed upon or endorsed the merits of the
offering of the Securities.
(f)
Transfer or Resale . Each Buyer
understands that except as provided in the Registration Rights
Agreement: (i) the Securities have not been and are not being
registered under the Securities Act or any state securities
laws, and may not be offered for sale, sold, assigned or
transferred unless (A) subsequently registered thereunder, (B)
such Buyer shall have delivered to the Company an opinion of
counsel, in a generally acceptable form, to the effect that such
Securities to be sold, assigned or transferred may be sold,
assigned or transferred
pursuant to an exemption from such registration
requirements, or (C) such Buyer provides the Company with
reasonable assurances (in the form of seller and broker
representation letters) that such Securities can be sold,
assigned or transferred pursuant to Rule 144 or Rule 144A
promulgated under the Securities Act, as amended (or a successor
rule thereto) (collectively, “ Rule 144 ”),
in each case following the applicable holding period set forth
therein; (ii) any sale of the Securities made in reliance on
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
the Securities under circumstances in which the seller (or
the person through whom the sale is made) 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; and (iii) neither the Company nor any other person
is under any obligation to register the Securities under the
Securities Act or any state securities laws or to comply with
the terms and conditions of any exemption thereunder.
(g)
Legends . Each Buyer agrees to the
imprinting, so long as is required by this Section 2(g), of a
restrictive legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR
AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS.
Certificates evidencing the Conversion Shares or
Warrant Shares shall not contain any legend (including the
legend set forth above), (i) while a registration statement
(including the Registration Statement) covering the resale of
such security is effective under the Securities Act, (ii)
following any sale of such Conversion Shares or Warrant Shares
pursuant to Rule 144, (iii) if such Conversion Shares or Warrant
Shares are eligible for sale under Rule 144, or (iv) if such
legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and
pronouncements issued by the staff of the SEC). The
Company shall cause its counsel to issue a legal opinion to the
Company’s transfer agent promptly after the effective date
(the “ Effective Date ”) of a Registration
Statement if required by the Company’s transfer agent to
effect the removal of the legend hereunder. If all or any
portion of the Convertible Debentures or Warrants are exercised
by a Buyer that is not an Affiliate of the Company (a “
Non-Affiliated Buyer ”) at a time when there is an
effective registration statement to cover the resale of the
Conversion Shares or the Warrant Shares, such Conversion Shares
or Warrant Shares shall be issued free of all legends. The
Company agrees that following the Effective Date or at such time
as such legend is no longer required under this Section 2(g), it
will, no later than
three (3) Trading Days following the delivery by
a Non-Affiliated Buyer to the Company or the Company’s
transfer agent of a certificate representing Conversion Shares
or Warrant Shares, as the case may be, issued with a restrictive
legend (such third Trading Day, the “ Legend Removal
Date ”), deliver or cause to be delivered to such
Non-Affiliated Buyer a certificate representing such shares that
is free from all restrictive and other legends. The
Company may not make any notation on its records or give
instructions to any transfer agent of the Company that enlarge
the restrictions on transfer set forth in this Section.
Each Buyer acknowledges that the Company’s agreement
hereunder to remove all legends from Conversion Shares or
Warrant Shares is not an affirmative statement or representation
that such Conversion Shares or Warrant Shares are freely
tradable. Each Buyer, severally and not jointly with the
other Buyers, agrees that the removal of the restrictive legend
from certificates representing Securities as set forth in this
Section 3(g) is predicated upon the Company’s reliance
that the buyer will sell any Securities pursuant to either the
registration requirements of the Securities Act, including any
applicable prospectus delivery requirements, or an exemption
therefrom, and that if Securities are sold pursuant to a
Registration Statement, they will be sold in compliance with the
plan of distribution set forth therein.
(h)
Authorization, Enforcement . This
Agreement has been duly and validly authorized, executed and
delivered on behalf of such Buyer and is a valid and binding
agreement of such Buyer enforceable in accordance with its
terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies.
(i)
Receipt of Documents . Each Buyer
and his or its counsel has received and read in their entirety:
(i) this Agreement and each representation, warranty and
covenant set forth herein and the Transaction Documents (as
defined herein); (ii) all due diligence and other information
necessary to verify the accuracy and completeness of such
representations, warranties and covenants; (iii) the
Company’s Annual Report on Form 10-KSB for the fiscal year
ended June 30, 2007; (iv) the Company’s Quarterly Reports
on Form 10-QSB for the fiscal quarters ended September 31, 2007,
December 31, 2007 and March 31, 2008 and (v) answers to all
questions each Buyer submitted to the Company regarding an
investment in the Company; and each Buyer has relied on the
information contained therein and has not been furnished any
other documents, literature, memorandum or prospectus.
(j)
Due Formation of Corporate and Other
Buyers . If the Buyer(s) is a corporation, trust,
partnership or other entity that is not an individual person, it
has been formed and validly exists and has not been organized
for the specific purpose of purchasing the Securities and is not
prohibited from doing so.
(k)
No Legal Advice From the Company .
Each Buyer acknowledges, that it had the opportunity to
review this Agreement and the transactions contemplated by this
Agreement with his or its own legal counsel and investment and
tax advisors. Each Buyer is relying solely on such counsel
and advisors and not on any statements or representations of the
Company or any of its representatives or agents for legal, tax
or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities
laws of any jurisdiction.
3.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY .
Except as set forth under the corresponding
section of the Disclosure Schedules which Disclosure Schedules
shall be deemed a part hereof and to qualify any representation
or warranty otherwise made herein to the extent of such
disclosure, the Company hereby makes the representations and
warranties set forth below to each Buyer:
(a)
Subsidiaries . All of the direct
and indirect subsidiaries of the Company are set forth on
Section 3(a) of the Disclosure Schedule. The
Company owns, directly or indirectly, all of the capital stock
or other equity interests of each subsidiary free and clear of
any 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 to
subscribe for or purchase securities.
(b)
Organization and Qualification .
The Company and its subsidiaries are corporations duly
organized and validly existing in good standing under the laws
of the jurisdiction in which they are incorporated, and have the
requisite corporate power to own their properties and to carry
on their business as now being conducted. Each of the
Company and its subsidiaries is duly qualified as a foreign
corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it
makes such qualification necessary, except to the extent that
the failure to be so qualified or be in good standing would not
have or reasonably be expected to result in (i) a material
adverse effect on the legality, validity or enforceability of
any Transaction Document, (ii) a material adverse effect on the
results of operations, assets, business or condition (financial
or otherwise) of the Company and the subsidiaries, taken as a
whole, or (iii) a material adverse effect on the Company’s
ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or
(iii), a “ Material Adverse Effect ”) and no
proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification..
(c)
Authorization, Enforcement, Compliance with
Other Instruments . (i) The Company has the
requisite corporate power and authority to enter into and
perform its obligations under this Agreement, the Convertible
Debentures, the Warrants, the Security Documents, the
Registration Rights Agreement, the Irrevocable Transfer Agent
Instructions, the Warrant Amendments, and each of the other
agreements entered into by the parties hereto in connection with
the transactions contemplated by this Agreement (collectively
the “ Transaction Documents ”) and to issue
the Securities in accordance with the terms hereof and thereof,
(ii) the execution and delivery of the Transaction Documents by
the Company and the consummation by it of the transactions
contemplated hereby and thereby, including, without limitation,
the issuance of the Securities, the reservation for issuance and
the issuance of the Conversion Shares, and the reservation for
issuance and the issuance of the Warrant Shares, have been duly
authorized by the Company’s Board of Directors and no
further consent or authorization is required by the Company, its
Board of Directors or its stockholders, (iii) the Transaction
Documents have been duly executed and delivered by the Company,
(iv) the Transaction Documents constitute the valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as such enforceability may
be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors’ rights
and remedies. The authorized officer of the Company
executing the Transaction Documents knows of no reason why the
Company cannot file the Registration Statement as required under
the Registration Rights Agreement or perform any of the
Company’s other obligations under the Transaction
Documents.
(d)
Capitalization . The authorized
capital stock of the Company consists of Twenty-Five Million
(25,000,000) shares of Common Stock, of which Four Million One
Hundred Sixty-Two Thousand Three Hundred Seventy-Two (4,162,372)
shares were issued and outstanding as of June 11, 2008.
All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities
laws, and none of such outstanding shares was issued in
violation of any preemptive rights or similar rights to
subscribe for or purchase securities. Except as set forth
in the Recitals to this Agreement and as disclosed in Section
3(d) of the Disclosure Schedule: (i) none of the Company's
capital stock is subject to preemptive rights or any other
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; (iv) there are no financing
statements securing obligations in any material amounts, either
singly or in the aggregate, filed in connection with the Company
or any of its subsidiaries; (v) there are no outstanding
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 a 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 Documents but
not so disclosed in the SEC Documents, 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.
The Company has furnished to the Buyers true, correct and
complete copies of the Company's Articles of Incorporation, as
amended and as in effect on the date hereof (the “
Articles of Incorporation ”), and the Company's
Bylaws, as amended and as in effect on the date hereof (the
“ Bylaws ”), and the terms of all securities
convertible into, or exercisable or exchangeable for, shares of
Common Stock and the material rights of the holders thereof in
respect thereto. No further approval or authorization of
any stockholder, the Board of Directors of the Company or others
is required for the issuance and sale of the Securities.
There are no stockholders agreements, voting agreements or
other similar
agreements with respect to the Company’s
capital stock to which the Company is a party or, to the
knowledge of the Company, between or among any of the
Company’s stockholders.
(e)
Issuance of Securities . The
issuance of the Convertible Debentures and the Warrants is duly
authorized and free from all taxes, liens and charges with
respect to the issue thereof. Upon conversion in
accordance with the terms of the Convertible Debentures or
exercise in accordance with the Warrants, as the case may be,
the Conversion Shares and Warrant Shares, respectively, when
issued will be validly issued, fully paid and nonassessable,
free from all taxes, liens and charges with respect to the issue
thereof. The Company has reserved from its duly authorized
capital stock the appropriate number of shares of Common Stock
as set forth in this Agreement.
(f)
No Conflicts . The execution,
delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation,
the issuance of the Convertible Debentures and the Warrants, and
reservation for issuance and issuance of the Conversion Shares
and the Warrant Shares) will not (i) result in a violation of
any certificate of incorporation, certificate of formation, any
certificate of designations or other constituent documents of
the Company or any of its subsidiaries, any capital stock of the
Company or any of its subsidiaries or bylaws of the Company or
any of its subsidiaries or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both
would become a default) in any respect 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 (iii)
result in a violation of any law, rule, regulation, order,
judgment or decree (including foreign, federal and state
securities laws and regulations and the rules and regulations of
the National Association of Securities Dealers Inc.’s OTC
Bulletin Board) 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 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. The business of
the Company and its subsidiaries is not being conducted, and
shall not be conducted in violation of any material law,
ordinance, or regulation of any governmental entity.
Except as specifically contemplated by this Agreement and
as required under the Securities Act and any applicable state
securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for
it to execute, deliver or perform any of its obligations under
or contemplated by this Agreement or the Registration Rights
Agreement in accordance with the terms hereof or thereof.
All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant
to the preceding sentence have been obtained or effected on or
prior to the date hereof. The Company and its subsidiaries
are unaware of any facts or circumstance, which might give rise
to any of the foregoing.
(g)
SEC Documents; Financial Statements .
The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by it with
the SEC under the Securities Exchange Act of 1934, as amended
(the “ Exchange Act ”), for the two (2) years
preceding the date hereof (or such shorter period as the Company
was required by law or regulation to file such material) (all of
the foregoing filed prior to the date hereof or amended after
the date hereof and all exhibits included therein and financial
statements and schedules
thereto and documents incorporated by reference
therein, being hereinafter referred to as the “ SEC
Documents ”) on timely basis or has received a valid
extension of such time of filing and has filed any such SEC
Document prior to the expiration of any such extension.
The Company has delivered to the Buyers or their
representatives, or made available through the SEC’s
website at http://www.sec.gov., true and complete copies of the
SEC Documents. As of their respective dates, the 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
the light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial
statements of the Company included in the SEC Documents complied
as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC
with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved
(except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of
unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the
Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on
behalf of the Company to the Buyers which is not included in the
SEC Documents, including, without limitation, information
referred to in Section 2(i) of this Agreement, contains any
untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein,
in the light of the circumstance under which they are or were
made and not misleading.
(h)
10(b)-5 . The SEC Documents do not
include any untrue statements of material fact, nor do they omit
to state any material fact required to be stated therein
necessary to make the statements made, in light of the
circumstances under which they were made, not misleading.
(i)
Absence of Litigation . There is no
action, suit, proceeding, inquiry or investigation before or by
any court, public board, government agency, self-regulatory
organization or body pending against or affecting the Company,
the Common Stock or any of the Company’s subsidiaries,
wherein an unfavorable decision, ruling or finding would have a
Material Adverse Effect.
(j)
Acknowledgment Regarding Buyer’s
Purchase of the Convertible Debentures . The Company
acknowledges and agrees that each Buyer is acting solely in the
capacity of an arm’s length purchaser with respect to this
Agreement and the transactions contemplated hereby. The
Company further acknowledges that each Buyer is not acting as a
financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by each Buyer or any of
their respective representatives or agents in connection with
this Agreement and the transactions contemplated hereby is
merely incidental to such Buyer’s purchase of the
Securities. The Company further represents to each Buyer
that the Company’s decision to enter into this
Agreement has been based solely on the
independent evaluation by the Company and its
representatives.
(k)
No General Solicitation . Neither
the Company, nor any of its affiliates, nor any person acting on
its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the
offer or sale of the Securities.
(l)
No Integrated Offering . Neither
the Company, nor any of its affiliates, nor any person acting on
its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any
security, under circumstances that would require registration of
the Securities under the Securities Act or cause this offering
of the Securities to be integrated with prior offerings by the
Company for purposes of the Securities Act.
(m)
Employee Relations . Neither the
Company nor any of its subsidiaries is involved in any labor
dispute or, to the knowledge of the Company or any of its
subsidiaries, is any such dispute threatened. None of the
Company’s or its subsidiaries’ employees is a member
of a union and the Company and its subsidiaries believe that
their relations with their employees are good.
(n)
Intellectual Property Rights . The
Company and its subsidiaries own or possess adequate rights or
licenses to use all trademarks, trade names, service marks,
service mark registrations, service names, patents, patent
rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights necessary
to conduct their respective businesses as now conducted.
The Company and its subsidiaries do not have any knowledge
of any infringement by the Company or its subsidiaries of
trademark, trade name rights, patents, patent rights,
copyrights, inventions, licenses, service names, service marks,
service mark registrations, trade secret or other similar rights
of others, and, to the knowledge of the Company there is no
claim, action or proceeding being made or brought against, or to
the Company’s knowledge, being threatened against, the
Company or its subsidiaries regarding trademark, trade name,
patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret
or other infringement; and the Company and its subsidiaries are
unaware of any facts or circumstances which might give rise to
any of the foregoing.
(o)
Environmental Laws . The Company
and its subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“ Environmental
Laws ”), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval.
(p)
Title . All real property and
facilities held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable
leases
with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(q)
Insurance . The Company and each of
its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts
as management of the Company believes to be prudent and
customary in the businesses in which the Company and its
subsidiaries are engaged. Neither the Company nor any such
subsidiary has been refused any insurance coverage sought or
applied for and neither the Company nor any such subsidiary has
any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the
Company and its subsidiaries, taken as a whole.
(r)
Regulatory Permits . The Company
and its subsidiaries possess all material certificates,
authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any
such subsidiary has received any notice of proceedings relating
to the revocation or modification of any such certificate,
authorization or permit.
(s)
Internal Accounting Controls . The
Company and each of its subsidiaries maintains 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
