Exhibit 10.2
Execution
Copy
19,060,000
Shares
GENTA
INCORPORATED
Common Stock
PLACEMENT AGENCY
AGREEMENT
August 5, 2005
PIPER JAFFRAY
& CO.
U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, Minnesota 55402
Ladies and
Gentlemen:
Genta
Incorporated, a Delaware corporation (the “
Company ”) proposes, subject to the terms and
conditions contained herein and in the Subscription Agreements in
the form of Exhibit A attached hereto (the “
Subscription Agreements ”) entered into with
the Investors identified therein (each an “
Investor ” and, collectively, the “
Investors ”), to issue and sell an aggregate
19,060,000 shares (the “ Shares ”) of
common stock, $0.001 par value per share (the “ Common
Stock ”), of the Company directly to the Investors.
The Company desires to engage you as its placement agent (the
“ Placement Agent ”) in connection with
such issuance and sale. The Shares are more fully described in the
Registration Statement (as hereinafter defined).
1. Agreement to
Act as Placement Agent; Delivery and Payment . On the basis of
the representations, warranties and agreements of the Company
herein contained, and subject to all the terms and conditions of
this Agreement:
(a) The Placement
Agent agrees to act as the Company’s exclusive placement
agent in connection with the issuance and sale, on a best-efforts
basis, by the Company of the Shares to the Investors. Upon the
occurrence of the Closing (as hereinafter defined), the Company
shall pay to the Placement Agent six percent (6%) of the gross
proceeds received by the Company from the sale of the Shares. The
Company acknowledges and agrees that the Placement Agent’s
engagement hereunder is not an agreement by the Placement Agent or
any of its affiliates to underwrite or purchase any securities or
otherwise provide any financing. Under no circumstances will the
Placement Agent be obligated to purchase any Shares for its own
account and, in soliciting purchases of Shares, the Placement Agent
shall act solely as the Company's agent and not as principal.
Notwithstanding the foregoing, it is understood and
agreed that the
Placement Agent (or its affiliates) may, solely at its discretion
and without any obligation to do so, purchase Shares as
principal.
(b) Payment of the
purchase price for, and delivery of the Shares shall be made at a
closing (the “ Closing ”) at the offices
of Davis Polk & Wardwell, counsel for the Company, at 450
Lexington Avenue, New York, New York 10017 at 10:00 a.m., New York
City time, on the Closing Date to take place on the third or fourth
business day (as permitted under Rule 15c6-1 under the Exchange
Act) after the determination of the public offering price of the
Shares (such time and date of payment and delivery being herein
called the “ Closing Date ”). All such
actions taken at the Closing shall be deemed to have occurred
simultaneously.
(c) On the Closing
Date, each Investor shall wire an amount equal to the aggregate
purchase price for the number of Shares such Investor has agreed to
purchase to an account designated by the Company and the Company
shall cause the transfer agent for the Shares to deliver to each
Investor the number of Shares set forth on the signature page to
such Investor’s Subscription Agreement, which delivery shall
be made, with respect to an Investor, in accordance with the
procedures set forth in such Investor’s executed Subscription
Agreement.
(d)
The purchases of
the Shares by each of the Investors shall be evidenced by the
execution of a Subscription Agreement substantially in the form
attached hereto as Exhibit A .
(e) Prior to the
earlier of (i) the date on which this Agreement is terminated and
(ii) the Closing Date, the Company shall not, without the prior
written consent of Piper Jaffray & Co., solicit or accept
offers to purchase shares of its Common Stock or other
equity-linked securities (other than pursuant to the exercise of
options or warrants to purchase shares of Common Stock that are
outstanding at the date hereof) otherwise than through the
Placement Agent.
2.
Representations and Warranties of the Company . The
Company represents and warrants to the Placement Agent and the
Investors as of the date hereof and as of the Closing Date, as
follows:
(a)
Registration Statement . The
Company has prepared and filed in conformity with the requirements
of the Securities Act of 1933, as amended (the “
Securities Act ”), and published rules and
regulations thereunder (the “ Rules and
Regulations ”) adopted by the Securities and Exchange
Commission (the “ Commission ”) a
“shelf” Registration Statement (as hereinafter defined)
on Form S-3 (No. 333-114151), which became effective as of May 11,
2004 (the “ Effective Date ”) including a
Base Prospectus relating to the Shares (the “ Base
Prospectus ”), and such amendments and supplements
thereto as may have been required to the date of this Agreement.
The term “ Registration Statement ” as
used in this Agreement means the registration statement (including
all exhibits, financial schedules and all documents and information
deemed to be a part of the Registration Statement pursuant to Rule
430A or 434(d) under the Securities Act), as amended and/or
supplemented to the date of this Agreement, including the Base
Prospectus. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued by the
Commission and no
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proceedings for
that purpose have been instituted or, to the knowledge of the
Company, are threatened by the Commission. The Company, if required
by the Rules and Regulations of the Commission, proposes to file
the Prospectus (as defined below), with the Commission pursuant to
Rule 424(b) of the Rules and Regulations. The term “
Prospectus ” as used in this Agreement means
the Prospectus, in the form in which it is to be filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
or, if the Prospectus is not to be filed with the Commission
pursuant to Rule 424(b), the Prospectus in the form included as
part of the Registration Statement as of the Effective Date, except
that if any revised prospectus or prospectus supplement shall be
provided to the Placement Agent by the Company for use in
connection with the offering and sale of the Shares which differs
from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations), the term
“Prospectus” shall refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time
it is first provided to the Placement Agent for such use. Any
preliminary prospectus or prospectus subject to completion included
in the Registration Statement or filed with the Commission pursuant
to Rule 424 under the Securities Act is hereafter called a
“Preliminary Prospectus.” Any reference herein to the
Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), on or
before the last to occur of the Effective Date, the date of the
Preliminary Prospectus, or the date of the Prospectus, and any
reference herein to the terms “amend,”
“amendment,” or “supplement” with respect
to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include (i) the filing
of any document under the Exchange Act after the Effective Date,
the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, which is incorporated by reference
and (ii) any such document so filed. If the Company has filed an
abbreviated registration statement to register additional Shares
pursuant to Rule 462(b) under the Rules (the “ 462(b)
Registration Statement ”), then any reference herein
to the Registration Statement shall also be deemed to include such
462(b) Registration Statement.
(b)
Registration Statement and Prospectus . On the Effective
Date, upon the filing or first delivery to the Investors of the
Prospectus, as of the date hereof, and at the Closing Date, the
Registration Statement (and any post-effective amendment thereto)
and the Prospectus (as amended or as supplemented if the Company
shall have filed with the Commission any amendment or supplement to
the Registration Statement or the Prospectus) complied and will
comply, in all material respects, with the requirements of the
Securities Act and the Rules and Regulations and the Exchange Act
and the rules and regulations of the Commission thereunder and did
not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (in light of the
circumstances under which they were made, in the case of the
Prospectus) not misleading. Each Preliminary Prospectus, as of the
date filed with the Commission, did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, none of the
representations and warranties in this paragraph 2(b) shall apply
to statements in, or omissions from, any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any
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amendment or
supplement thereto made in reliance upon, and in conformity with,
information herein or otherwise furnished in writing by the
Placement Agent for use in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or
supplement thereto (the “ Placement Agent’s
Information ”). With respect to the preceding
sentence, the Company acknowledges that the only Placement
Agent’s Information is the statements with respect to the
public offering of the Shares set forth in the tenth paragraph
under the heading “Plan of Distribution” in the
Prospectus. The Company has not distributed and will not
distribute, prior to the completion of the distribution of the
Shares, any offering material in connection with the offering and
sale of the Shares, other than the Registration Statement, any
Preliminary Prospectus and the Prospectus.
(c)
Subsidiaries . The Company has no significant subsidiaries
(as such term is defined in Rule 1-02 of Regulation S-X promulgated
by the Commission). All of the issued and outstanding shares of
capital stock of each of the Company’s subsidiaries have been
duly and validly authorized and issued and are fully paid,
nonassessable and free of preemptive and similar rights to
subscribe for or purchase securities, and, except as otherwise
described in the Registration Statement and Prospectus, the Company
owns directly or indirectly, free and clear of any security
interests, claims, liens, proxies, equities or other encumbrances,
all of the issued and outstanding shares of such stock.
(d) Financial
Statements . The consolidated financial statements of the
Company, together with the related schedules and notes thereto, set
forth or incorporated by reference in the Registration Statement
and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act,
as applicable and fairly present (i) the consolidated financial
condition of the Company as of the dates indicated and (ii) the
results of operations, stockholders’ equity and changes in
consolidated cash flows of the Company for the periods therein
specified; and such financial statements and related schedules and
notes thereto, comply as to form with the applicable accounting
requirements under the Securities Act and have been prepared in
conformity with United States generally accepted accounting
principles, consistently applied throughout the periods involved
(except as otherwise stated therein and subject, in the case of
unaudited financial statements, to the absence of footnotes and
normal year-end adjustments). No other financial statements or
schedules are required by the Securities Act and the Rules and
Regulations to be included in the Registration Statement or
Prospectus.
(e) Independent
Accountants . To the Company’s knowledge, Deloitte &
Touche LLP (the “ Accountants ”), who have
audited certain consolidated financial statements of the Company
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectus, or
the Registration Statement, or incorporated by reference therein
is, and during the periods covered by its reports, was an
independent public accounting firm within the meaning of the
Securities Act and the Rules and Regulations.
(f)
Organization . Each of the Company and its subsidiaries has
been duly incorporated or otherwise organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation or organization (as applicable). Each
of the Company and its subsidiaries has full corporate power and
authority to own and use its properties and assets and to conduct
its business as currently being carried on and as described
in
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the
Registration Statement and Prospectus, and is duly qualified to do
business as a foreign corporation in good standing in each
jurisdiction in which it owns or leases real property or in which
the conduct of its business makes such qualification necessary,
except where the failure to so qualify or be in good standing, as
the case may be, would not have or reasonably be expected to result
in, individually or in the aggregate, a material adverse effect
upon the business, prospects, properties, operations, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole (a “ Material
Adverse Effect ”).
(g) No Material
Adverse Effect . Except as set forth in or otherwise
contemplated by the Registration Statement or the Prospectus,
subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, (a) neither the
Company nor any of its subsidiaries has sustained any loss or
interference with its assets, businesses or properties (whether
owned or leased) from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
order or decree which has had or would reasonably be expected to
result in a Material Adverse Effect (b) neither the Company nor any
of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock; and (c)
there has not been any change in the capital stock (other than a
change in the number of outstanding shares of Common Stock due to
the issuance of shares upon the exercise of outstanding options or
warrants), or any material change in the long-term debt, or any
issuance of options, warrants, convertible securities or other
rights to purchase the capital stock, of the Company or any of its
subsidiaries, or any Material Adverse Effect or any development
that could reasonably be expected to result in a Material Adverse
Effect.
(h) Legal
Proceedings . Except as set forth in the Prospectus, there is
not pending or, to the knowledge of the Company, threatened or
contemplated, any action, suit or proceeding to which the Company
or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject
before or by any court or governmental agency, authority or body,
or any arbitrator, which, individually or in the aggregate, would
reasonably be expected to result in any Material Adverse Effect or
materially and adversely affect the ability of the Company to
perform its obligations under this Agreement and the Subscription
Agreements. There are (i) no current or pending legal, governmental
or regulatory actions, suits or proceedings that are required under
the Securities Act to be described in the Registration Statement
and Prospectus that have not been so described and (ii) there are
no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration
Statement that are not so filed or will not be filed within the
requisite time period.
(i) Due
Authorization and Enforceability . The Company has full legal
power and authority to enter into this Agreement and the
Subscription Agreements and to consummate the transactions
contemplated hereby and thereby. This Agreement and each of the
Subscription Agreements have been duly authorized, executed and
delivered by the Company, and constitute valid, legal and binding
obligations of the Company, enforceable in accordance with their
terms, except as rights to indemnity hereunder may be limited by
federal or state securities laws and
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except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
(j) No
Conflicts . The execution, delivery and performance of the
Company of this Agreement and each of the Subscription Agreements
and the consummation of the transactions herein and therein
contemplated, including the issuance and sale of the Shares, will
not (i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default (or an event
which with notice or lapse of time or both would constitute a
default) under, or require any consent or waiver under, or result
in the execution of any lien, charge or encumbrance upon any
properties or assets of the Company or its subsidiaries pursuant to
the terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, (ii)
result in any violation of the provisions of the charter or bylaws
of the Company or any of its subsidiaries or (iii) result in any
violation of any franchise, license, permit, statute, law, rule or
regulation applicable to the Company or any judgment, order or
decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets, except, in the case of each of clauses
(i) and (iii) above, for any such conflict, breach, violation,
default, lien, charge or encumbrance that would not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(k) No Consents
Required . No consent, approval, authorization, filing with or
order of or registration with, any court or governmental agency or
body is required for the execution, delivery and performance of
this Agreement and each of the Subscription Agreements or for the
consummation of the transactions contemplated hereby and thereby,
including the issuance or sale of the Shares by the Company, except
such as have been obtained or made under the Securities Act or the
Exchange Act and such as may be required under applicable state
securities laws or by the by-laws and rules of the National
Association of Securities Dealers, Inc. (the “
NASD ”) in connection with the offer and sale
of the Shares by the Company and the distribution of the Shares by
the Placement Agent in the manner contemplated herein and in the
Prospectus.
(l)
Capitalization . All of the issued and outstanding shares of
capital stock of the Company, including the outstanding shares of
Common Stock, are duly authorized and validly issued, fully paid
and nonassessable, have been issued in compliance with all federal
and state securities laws, were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for
or purchase securities that have not been waived in writing. The
Company has an authorized, issued and outstanding capitalization as
is set forth in the Registration Statement and the Prospectus
(other than the grant of additional options under the
Company’s existing stock option plans, or changes in the
number of outstanding shares of Common Stock of the Company due to
the issuance of shares under the Company’s employee stock
purchase plan or upon the exercise or conversion of securities
exercisable for, or convertible into, shares of Common Stock
outstanding on the date hereof) and such authorized capital stock
conforms to the description thereof set forth in the Registration
Statement and the Prospectus. The description of the securities of
the Company in the Registration Statement and the Prospectus is
complete and accurate in all material respects. Except as described
in the Registration Statement and the
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Prospectus, as
of the date referred to therein, the Company did not have
outstanding any options, warrants, agreements, contracts or other
rights in existence to purchase or acquire from the Company or any
subsidiary of the Company any shares of the capital stock of the
Company or any subsidiary of the Company.
(m) The
Shares . The Shares have been duly authorized by the Company
and, when issued, delivered and paid for in accordance with the
terms of this Agreement, will have been validly issued and will be
fully paid and nonassessable; and the capital stock of the Company,
including the Common Stock, conforms to the description thereof in
the Registration Statement and Prospectus. Except as otherwise
stated in the Registration Statement and Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase,
or any restriction upon the voting or transfer of, any shares of
Common Stock pursuant to the Company’s charter, by-laws or
any agreement or other instrument to which the Company is a party
or by which the Company is bound that have not been
waived.
(n) Title to
Real and Personal Property . The Company and its subsidiaries
have good and valid title to all property (whether real or
personal) described in the Registration Statement and Prospectus as
being owned by them, in each case free and clear of all liens,
claims, security interests, other encumbrances or defects except
such as are described in the Registration Statement and the
Prospectus and except those that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect. The property held under lease by the Company and its
subsidiaries is held by them under valid, subsisting and
enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with
the conduct of the business of the Company or its
subsidiaries.
(o) Title to
Intellectual Property . The Company and its subsidiaries own,
possess, license or have other rights to use all foreign and
domestic patents, patent applications, trade and service marks,
trade and service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets, technology, Internet domain
names, know-how and other intellectual property (collectively, the
“ Intellectual Property ”), necessary for
the conduct of their respective businesses as now conducted or as
proposed in the Prospectus to be conducted. Except as set forth in
the Prospectus and except where such violations or infringements
would not reasonably be expected to result in a Material Adverse
Effect, (a) there are no rights of third parties to any such
Intellectual Property; (b) to the Company’s knowledge, there
is no infringement by third parties of any such Intellectual
Property; (c) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s and its subsidiaries’ rights
in or to any such Intellectual Property, and the Company is unaware
of any facts which would form a reasonable basis for any such
claim; (d) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual
Property; and (e) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
that the Company and its subsidiaries infringe or otherwise violate
any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any other fact
which would form a reasonable basis for any such claim.
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(p) No
Violation or Default . Neither the Company nor any of its
subsidiaries is (i) in violation of any provision of its charter or
bylaws or similar organizational document, (ii) is in default in
any respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due
performance or observance of any term, covenant, or condition of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or by
which it is bound or to which any of its property or assets is
subject, or (iii) is in violation in any respect of any statute,
law, rule, regulation, ordinance, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company,
its subsidiaries or any of its properties, as applicable
(including, without limitation, (i) the Sarbanes-Oxley Act of 2002
and the rules and regulations promulgated in connection therewith
(the “ Sarbanes-Oxley Act ”) and (ii)
those administered by the Food and Drug Administration of the U.S.
Department of Health and Human Services (the “
FDA ”) or by any foreign, federal, state or
local governmental or regulatory authority performing functions
similar to those performed by the FDA), except, with respect to
clauses (ii) and (iii) above, any violations or defaults which,
singularly or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.
(q) Permits
. The Company and each of its subsidiaries has made all filings,
applications and submissions required by, and possesses all licenses,
certificates, permits and other authorizations issued by,
the appropriate
federal, state or foreign regulatory authorities (including,
without limitation, the FDA, and any other foreign, federal, state
or local government or regulatory authorities performing functions
similar to those performed by the FDA) necessary for the ownership
or lease of its property or the conduct of its business as
described in the Registration Statement and the Prospectus
(collectively, “ Permits ”), except for
such Permits the failure of which to obtain would not reasonably be
expected to have a Material Adverse Effect; and the Company and
each of its subsidiaries has not received any written notice of
proceedings relating to the limitation, revocation, cancellation,
suspension, modification or non-renewal of any such Permit which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect,
and has no reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary
course.
(r) Taxes .
The Company and its subsidiaries have timely filed all federal,
state, local and foreign income and franchise tax returns (or
timely filed applicable extensions therefore) required to be filed
and are not in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect
thereto, other than any which the Company or any of its
subsidiaries is contesting in good faith or any that would not,
individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect. There is no pending dispute
with any taxing authority relating to any of such returns and the
Company has no knowledge of any proposed liability for any tax to
be imposed upon the properties or assets of the Company for which
there is not an adequate reserve reflected in the Company’s
financial statements included or incorporated by reference in the
Registration Statement.
(s) Listing
. The Common Stock (including the Shares) is registered pursuant to
Section 12(g) of the Exchange Act and the Company, in the two years
preceding the date hereof, has not received any notification
(written or oral) from the Nasdaq National Market, any
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stock exchange,
market or trading facility on which the Common Stock is or has been
listed (or on which it has been quoted) to the effect that the
Company is not in compliance with the listing or maintenance
requirements of such exchange, market or trading facility. The
Company shall comply with all requirements of the Nasdaq National
Market with respect to the issuance of the Shares and shall use its
best efforts to have the Shares listed on the Nasdaq National
Market on or before the Closing Date.
(t) Internal
Controls . The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with
respect to any differences. The Company has established and
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-14 and 15d-14 under the Exchange Act), which
are designed to ensure that material information relating to the
Company is made known to the Company’s principal executive
officer and its principal financial officer by others within those
entities, particularly during the periods in which the
Company’s Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, is being prepared. The
Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures as of
the end of the period covered by the Form 10-Q/A for the quarter
ended March 31, 2005 (the “Evaluation date”). The
Company presented in its Form 10-Q/A for the quarter ended March
31, 2005 the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on
their evaluation as of the Evaluation Date. Since the Evaluation
Date, there have been no significant changes in the Company’s
internal controls (as such term is defined in Item 307(b) of
Regulation S-K under the Exchange Act) or, to the Company’s
knowledge, in other factors that could significantly affect the
Company’s internal controls.
(u) No
Undisclosed Relationships . No relationship, direct or
indirect, exists between or among the Company on the one hand and
the directors, officers, stockholders, customers or suppliers of
the Company on the other hand which is required to be described in
the Prospectus and which is not so described.
(v)
No Registration
Rights . Except as described in the
Prospectus, no person or entity has the right to require
registration of shares of Common Stock or other securities of the
Company because of the filing or effectiveness of the Registration
Statement with the Commission or by reason of the issuance and sale
of the Shares, except for persons and entities who have expressly
waived such right or who have been given proper notice and have
failed to exercise such right within the time or times required
under the terms and conditions of such right, and the Company is
not required to file any registration statement for the
registration of any securities of any person or register any such
securities pursuant to any other registration statement filed by
the Company under the Securities Act for a period of at least 180
days after the Effective Date.
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(w)
Sarbanes-Oxley Act . The principal executive officer and
principal financial officer of the Company have made all
certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “ Sarbanes-Oxley
Act ”) with respect to all reports, schedules, forms,
statements and other documents required to be filed by it with the
Commission. For purp
