Exhibit 10.2
SECURITIES PURCHASE
AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this
“ Agreement ”), dated as of April 10, 2007, by
and among ISONICS CORPORATION, a California 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 Two Million Dollars ($2,000,000) of a single
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, no par value (the “
Common Stock ”) (as converted, the “
Conversion Shares ”), which shall be funded within two
(2) business day following the date hereof (the “
Closing ”) for a total purchase price of Two
Million Dollars ($2,000,000), (the “ Purchase
Price ”) 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 , the Company has agreed to secure the
Company’s obligations under this Agreement, the Transaction
Documents, or any other obligations of the Company to the Buyer
pursuant to the security agreement of dated May 30, 2006 (the
“ Security Agreement ”) and UCC-1 No.:
06-7072646008 filed with California Secretary of State;
WHEREAS , Isonics Vancouver, Inc., a subsidiary of the
Company, has agreed to secure the Company’s obligations under
this Agreement, the Transaction Documents, or any other obligations
of the Company to the Buyer pursuant to the security agreement of
dated May 30, 2006 (a “ Subsidiary Security Agreement
”) and UCC-1 No.: 2006-156-5634-4 filed with the Washington
State Department of Licensing;
WHEREAS , Isonics Homeland Security and Defense
Corporation, has agreed to secure the Company’s obligations
under this Agreement, the Transaction Documents, or any other
obligations of the Company to the Buyer pursuant to the security
agreement of dated May 30, 2006 (a “ Subsidiary Security
Agreement ”) and UCC-1 No.: 6187870 1 filed with the
Delaware Department of State U.C.C. Filing Section;
WHEREAS , Protection Plus Security Corporation, a
subsidiary of the Company, has agreed to secure the Company’s
obligations under this Agreement, the Transaction Documents, or any
other obligations of the Company to the Buyer pursuant to the
security agreement of dated May 30, 2006 (a “ Subsidiary
Security Agreement ”) and UCC-1 No.: 200606020464949
filed the State of New York Department of State Uniform Commercial
Code Division;
WHEREAS, contemporaneously with the execution and
delivery of this Agreement, the parties hereto are executing and
delivering a Pledge and Escrow Agreement (the “ Pledge and
Escrow Agreement ”) pursuant to which the Company has
agreed to provide the Buyer a security interest in the Pledged
Shares (as this term is defined in the Pledge and Escrow Agreement)
to secure the Company’s obligations under this Agreement, the
Transaction Documents, or any other obligations of the Company to
the Buyer; (the Pledge and Escrow Agreement
together with the Security Agreement collectively the “
Security Documents ”);
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 ”);
and
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.
(b)
Closing Dates . The Closing of the purchase and sale
of the Convertible Debentures shall take place at 10:00 a.m.
Eastern Standard Time on the second (2 nd ) 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
Dates at the offices of Yorkville Advisors, LLC, 3700 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 each Closing Date, (i)
the Buyers shall deliver to the Company such aggregate proceeds for
the Convertible Debentures to be issued and sold to such Buyer at
such 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 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.
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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
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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, Rule 144(k), 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(k), 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
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“ 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 Form 10-K for the fiscal year
ended April 30, 2006; (iv) the Company’s Form 10-Q for the
fiscal quarter ended January 31, 2007; all Forms 8-K filed
since the Company’s Form 10-K for the fiscal year ended April
30, 2006 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)
Good Funds .
All purchase payments transferred or that may be transferred to the
Company pursuant to this Agreement originated directly from a bank
or brokerage account in the name of the Buyer located within the
United States of America or
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another Compliant
Jurisdiction as defined in by the Financial Action Task Force on
Money Laundering (found at http://www.oecd.org/fatf/).
(l)
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 Schedule 3(a)
. 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 Registration Rights Agreement, the Irrevocable
Transfer Agent Instructions, and each of the other
agreements
6
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 175,000,000 shares of Common Stock and
7,650,000 shares of Preferred Stock, no par value (“
Preferred Stock ”) of which 12,189,405 shares of
Common Stock and zero shares of Preferred Stock are issued and
outstanding as of March 31, 2007, which amount does not include
250,000 shares issuable to James E. Alexander and 200,000 shares
issuable to Boris Rubizhevsky as a result of settlement agreements
they entered into with the Company. 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
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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
Certificate of Incorporation, as amended and as in effect on the
date hereof (the “ Certificate 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 except to the extent the approval of the Company’s
shareholders are required by the rules and regulations of the
Nasdaq Capital Market. 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 except the warrants issued to certain
investors in February 2005 to the extent that any action that may
be taken by the Buyer(s) hereunder may result in dilution
adjustment to such warrants in accordance with the terms thereof,
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 Nasdaq
Capital Market subject to the shareholder approval requirements of
such rules) 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
8
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 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
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