SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (this
“
Agreement ”),
dated as of June 30, 2008, by and among
MOBILEPRO CORP., a
Delaware 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
up to Thirteen Million, Three Hundred Ninety One Thousand, One
Hundred Seventy Four Dollars and 54/100 ($13,391,174.54) 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 $0.001 (the “
Common Stock ”)
(as converted, the “
Conversion Shares ”).
Consideration for the purchase of the Convertible Debentures (the
“
Purchase Price, ”
and the face value of the Convertible Debentures, the
“
Subscription Amount ”)
shall be
only the
exchange of debentures dated June 30, 2006 and May 11, 2007 (the
“
Existing Debentures ”)
previously issued by the Company to the Buyer. The purchase through
exchange set forth herein shall take place at the “
Closing. ”
WHEREAS ,
contemporaneously with the execution and delivery of this
Agreement, (i) the
Buyer, the Company, and each Subsidiary of the Company are
executing and delivering a Global 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), (ii) each
Subsidiary of the Company is executing and delivering a Global
Guaranty Agreement dated the date hereof (the “
Guaranty ”)
and (iii) the Company and certain Subsidiaries of the Company are
executing and delivering a Global Pledge Agreement (the
“
Pledge Agreement ”
and collectively with the Security Agreement and the Guaranty, the
“
Security Documents ”)
in favor of the Buyer ;
and
WHEREAS ,
the Convertible Debentures and the Conversion 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.
(b)
Closing Dates .
The First Closing of the purchase and sale of the Convertible
Debentures 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 respective 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 the Existing Debentures; and (ii) the Company shall
deliver to each Buyer, Convertible Debentures which such Buyer is
purchasing at such 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 set forth in existing
agreements between the Buyer and the Company: (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 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 pursuant to Rule 144, (iii) if such Conversion 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 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, such Conversion 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, 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 is
not an affirmative statement or representation that such Conversion
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 2(g) is predicated upon the Company’s reliance
that such 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 Form 10-K for
the fiscal year ended March 31, 2007; (iv) the Company’s Form
10-Q for the fiscal quarter ended December 31, 2007 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 (other than Excluded
Subsidiaries, listed on
Schedule 4(d) attached
hereto) of the Company are set forth on
Schedule 3(a) (each
a “
Subsidiary ”
and collectively, the “
Subsidiaries ”).
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 .
Other than as set forth on
Schedule 3(b) attached
hereto, 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. Other than as set forth
on
Schedule 3(b) ,
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 and each Subsidiary has the requisite
corporate power and authority to enter into and perform its
obligations under this Agreement and the Convertible Debentures
(together with the Security Documents, collectively the
“
Transaction Documents ”)
(in each case, to the extent each is a party thereto) 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 each Subsidiary (to the extent each is a party thereto)
and the consummation by each of them of the transactions
contemplated hereby and thereby, including, without limitation, the
issuance of the Securities by the Company, the reservation for
issuance and the issuance of the Conversion Shares by the Company
(other than as provided in Section 4(d) hereof), and the
reservation for issuance and the issuance of the Warrant Shares by
the Company (other than as provided in Section 4(d) hereof), have
been duly authorized by the Company’s or each applicable
Subsidiary’s Board of Directors and no further consent or
authorization is required by the Company or any applicable
Subsidiary, any Boards of Directors or stockholders, (iii) the
Transaction Documents have been duly executed and delivered by the
Company and each Subsidiary (to the extent each is a party
thereto), (iv) the Transaction Documents constitute the valid and
binding obligations of the Company and each Subsidiary (to the
extent each is a party thereto), enforceable against the each of
them 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 and each Subsidiary 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 or such Subsidiary’s other
obligations under the Transaction Documents.
(d)
Capitalization .
The authorized capital stock of the Company consists of
1,500,000,000 shares of Common Stock and 20,035,425 shares of
Preferred Stock, par value $.001 (“
Preferred Stock ”)
of which 775,821,796 shares of Common Stock and 35,378 shares of
Preferred Stock are issued and outstanding. 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 disclosed
in
Schedule 3(d) :
(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 and each
Subsidiary’s Certificate of Incorporation, as amended and as
in effect on the date hereof (the “
Certificates of Incorporation ”),
and the Company’s and each Subsidiary’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 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.
(f)
No Conflicts .
The execution, delivery and performance of the Transaction
Documents by the Company and its Subsidiaries (to the extent each
is a party thereto) and the consummation by the Company and its
Subsidiaries (to the extent each is a party thereto) of the
transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Convertible Debentures, and
reservation for issuance and issuance of the Conversion Shares)
will not (i) result in a violation of any Certificates 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 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 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,
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