QUANTUM FUEL SYSTEMS TECHNOLOGIES WORLDWIDE,
INC.
9,000,000 Shares of Common Stock, par value
$0.001 per share
and Warrants to Purchase 13,500,000 Shares of
Common Stock
PLACEMENT AGENCY AGREEMENT
August 19, 2008
Merriman Curhan Ford &
Co.
600 California Street, 9th
Floor
San Francisco, California
94108
Dear Sir or Madam:
Quantum Fuel Systems Technologies
Worldwide, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell 9,000,000 shares (the "Offered Shares") of common
stock, par value $0.001 per share (the "Common Stock"), and
warrants to purchase 13,500,000 shares of Common Stock (the
"Offered Warrants") in the form attached hereto as
Exhibit A , to certain investors (collectively, the
"Investors"). The Offered Shares and the Offered Warrants shall be
sold together as units, each unit consisting of one Offered Share
and one Offered Warrant to purchase 1.5 shares of Common Stock
(such units are referred to herein individually as the "Offered
Security" and collectively as the "Offered Securities"). The
Offered Warrants shall be immediately separable from the Offered
Securities. The Company desires to engage you as its placement
agent (the "Placement Agent") in connection with such issuance and
sale. The Common Stock issuable upon exercise of the Offered
Warrants is herein referred to as the "Warrant Shares." The Offered
Securities are more fully described in the Registration Statement
and the Prospectus, each as hereinafter defined.
The Company hereby confirms as
follows its agreements with the Placement Agent.
1.
Agreement to Act as Placement Agent . 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, 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 Offered Securities
to the Investors. The Placement Agent shall use commercially
reasonable efforts to assist the Company in obtaining performance
by each Investor whose offer to purchase Offered Securities has
been solicited by the Placement Agent and accepted by the Company,
but the Placement Agent shall not, except as otherwise provided in
this Agreement, have any liability to the Company in the event any
such purchase is not consummated for any reason. The Company shall
pay to the Placement Agent an aggregate amount equal to 6.0% of the
proceeds received by the Company from the sale of the Offered
Shares as set forth on the cover page of the Prospectus.
2.
Delivery and Payment . At or prior to 10:00 a.m., New
York City time, on August 25, 2008, or at such other time on such
other date as may be agreed upon by the Company and the Placement
Agent (such date is hereinafter referred to as the "Closing Date"),
each of the Investors will deposit an amount equal to the price per
share as shown on the cover page of the Prospectus multiplied by
the number of Offered Securities purchased by it with the Company.
At the Closing, the Company shall (a) deliver the Offered
Shares to the Investors, which delivery may be made through the
facilities of The Depository Trust Company, and (b) shall
deliver the Offered Warrants pursuant to the instructions of each
Investor in the applicable Subscription Agreements. The closing
(the "Closing") shall take place at the office of Greenberg
Traurig, 200 Park Avenue, New York, New York 10166. All actions
taken at the Closing shall be deemed to have occurred
simultaneously.
3.
Representations and Warranties of the Company . The Company
represents and warrants and covenants to the Placement Agent as
follows:
(a)
A "shelf" registration statement on Form S-3 (File
No. 333-152133) with respect to the Common Stock and certain
other securities of the Company has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, and has been filed with the Commission.
The Company and the transactions contemplated by this Agreement
meet the requirements and comply with the conditions for the use of
Form S-3. The Registration Statement meets the requirements of
Rule 415(a)(1)(x) under the Act and complies in all materials
respects with said rule. As used in this Agreement:
(i)
"Applicable Time" means 9:15 a.m. (New York City time) on the date
of this Agreement;
(ii)
Effective Date" means any date as of which any part of the
Registration Statement became, or is deemed to have become,
effective under the Act in accordance with the Rules and
Regulations;
(iii)
"Issuer Free Writing Prospectus" means each "issuer free writing
prospectus" (as defined in Rule 433(h) of the Rules and
Regulations);
(iv)
"Preliminary Prospectus" means any preliminary prospectus relating
to the Offered Securities included in the Registration Statement or
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any preliminary prospectus supplement
thereto relating to the Offered Securities;
(v)
"Pricing Disclosure Materials" means, as of the Applicable Time,
the most recent Preliminary Prospectus, together with each Issuer
Free Writing Prospectus listed on Schedule 1 hereto, and the
information set forth on Schedule 2 hereto;
(vi)
"Prospectus" means the final prospectus relating to the Offered
Securities including any prospectus supplement thereto relating to
the Offered Securities, as filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations; and
(vi)
"Registration Statement" means, collectively, the various parts of
the registration statement described in Section 3(a), each as
amended as of the Effective Date for such part, including any
Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
Any reference to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated or deemed to be incorporated by
reference therein pursuant to Form S-3 under the Act as of the date
of such Preliminary Prospectus or the Prospectus, as the case may
be. 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 any document filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the effective date
of the Registration Statement, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, which
is incorporated therein by reference.
(b)
The Registration Statement has heretofore become effective under
the Act or, with respect to any registration statement to be filed
to register the offer and sale of Offered Securities pursuant to
Rule 462(b) under the Act, will be filed with the Commission and
become effective under the Act no later than 10:00 p.m., New
York City time, on the date of determination of the public offering
price for the Offered Securities; no stop order of the Commission
preventing or suspending the use of any Prospectus, or the
effectiveness of the Registration Statement, has been issued, and
no proceedings for such purpose have been instituted or, to the
Company's knowledge, are contemplated by the Commission.
(c)
The Company was not at the time of the initial filing of the
Registration Statement, has not been since the date of such filing,
and will not be on the Closing Date, an "ineligible issuer" (as
defined in Rule 405 under the Act). The Company has been since
the time of initial filing of the Registration Statement and
continues to be eligible to use Form S-3 for the offering of the
Offered Securities.
(d)
The Registration Statement, at the time it became effective, as of
the date hereof, and at the Closing Date conformed and will conform
in all material respects to the requirements of the Act and the
Rules and Regulations. Any Preliminary Prospectus conformed, and
the Prospectus will conform, when filed with the Commission
pursuant to Rule 424(b) and on the Closing Date to the requirements
of the Act and the Rules and Regulations. The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any documents incorporated therein on or
prior to the Closing, when filed with the Commission to the
requirements of the Exchange Act or the Act, as applicable, and the
rules and regulations of the Commission thereunder.
(e)
The Registration Statement did not, as of the Effective Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading.
(f)
The Prospectus will not, as of its date and on the Closing Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that the Company makes no representation or
warranty with respect to any statement contained in the Prospectus
in reliance upon and in conformity with information concerning the
Placement Agent and furnished in writing by the Placement Agent to
the Company expressly for use in the Prospectus, as set forth in
Section 8(b).
(g)
The documents incorporated by reference in any Preliminary
Prospectus or the Prospectus did not, and any documents filed and
incorporated by reference therein on or prior to the Closing will
not, when filed with the Commission, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated in such document or necessary to make the statements in such
document, in light of the circumstances under which they were made,
not misleading.
(h)
The Pricing Disclosure Materials did not, as of the Applicable
Time, contain an untrue statement of a material fact or omit to
state a 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; provided ,
however , that the Company makes no representation or
warranty with respect to any statement contained in the Pricing
Disclosure Materials in reliance upon and in conformity with
information concerning the Placement Agent and furnished in writing
by the Placement Agent to the Company expressly for use in the
Pricing Disclosure Materials, as set forth in
Section 8(b).
(i)
Each Issuer Free Writing Prospectus, when considered together with
the Pricing Disclosure Materials as of the Applicable Time, did not
contain an untrue statement of a material fact or omit to state a
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.
(j)
Each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Act and the Rules
and Regulations on the date of first use, and the Company has
complied or will comply with any filing requirements applicable to
such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the
public offer and sale of the Offered Securities, did not, does not
and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein that has not been superseded or modified. The
Company has retained in accordance with the Rules and Regulations
all Issuer Free Writing Prospectuses that were not required to be
filed pursuant to the Rules and Regulations.
(k)
The Company is, and at the Closing Date will be, duly organized,
validly existing and in good standing under the laws of the state
of Delaware. The Company (i) has, and at the Closing Date will
have, full power and authority to conduct all the activities
conducted by it, to own or lease all the assets owned or leased by
it and to conduct its business as described in the Registration
Statement and the Prospectus and (ii) is, and at the Closing
Date will be, duly licensed or qualified to do business and in good
standing as a foreign organization in all jurisdictions in which
the nature of the activities conducted by it or the character of
the assets owned or leased by it makes such licensing or
qualification necessary; except, in each case, where the failure to
be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material
adverse effect or would not reasonably be expected to have a
material adverse effect on or affecting the business, properties,
management, financial position, stockholders' equity or results of
operations of the Company (a "Material Adverse Effect"). Complete
and correct copies of the articles or certificate of incorporation
and of the bylaws of the Company and all amendments thereto have
been delivered or made available to the Placement Agent, and no
changes therein will be made subsequent to the date hereof and
prior to the Closing Date.
(l)
Except as set forth in the Registration Statement, the Company does
not have any subsidiaries.
(m)
The issued and outstanding shares of capital stock of the Company
have been validly issued, are fully paid and nonassessable and,
other than as set forth in the Registration Statement, are not
subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein.
Except as set forth in the Registration Statement and the
Prospectus or pursuant to plans or arrangements described therein,
the Company does not have outstanding any options to purchase, or
any rights or warrants to subscribe for, or any securities or
obligations convertible into, or exchangeable for, or any contracts
or commitments to issue or sell, any shares of capital stock or
other securities.
(n)
The Company has full legal right, power and authority to enter into
this Agreement and the proposed purchase agreements to be executed
by each Investor and the Company, substantially in the form
attached hereto as Exhibit C (the "Subscription
Agreements" and together with this Agreement, the "Transaction
Documents"), and perform the transactions contemplated hereby and
thereby. The Transaction Documents have been authorized and this
Agreement has been, and the Subscription Agreement will be, validly
executed and delivered by the Company and this Agreement is, and
the Subscription Agreement will be, legal, valid and binding
agreements of the Company enforceable against the Company in
accordance with their respective terms, subject to the effect of
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and equitable principles of general
applicability.
(o)
The issuance and sale of each of the Offered Shares and the Offered
Warrants have been duly authorized by the Company, and the Offered
Shares, when issued and paid for in accordance with the Transaction
Documents, will be duly and validly issued, fully paid and
nonassessable and will not be subject to preemptive or similar
rights. The Warrant Shares have been duly authorized and reserved
for issuance pursuant to the terms of the Offered Warrants, and the
Warrant Shares, when issued by the Company upon valid exercise of
the Offered Warrants and payment of the exercise price, will be
duly and validly issued, fully paid and nonassessable and will not
be subject to preemptive or similar rights. The Offered Securities,
when issued, will conform in all material respects to the
description thereof set forth in or incorporated into the
Prospectus.
(p)
The financial statements and the related notes included in the
Registration Statement and the Prospectus present fairly, in all
material respects, the financial condition of the Company as
of the dates thereof and the results of operations and cash flows
at the dates and for the periods covered thereby in conformity with
generally accepted accounting principles ("GAAP"). No other
financial statements or schedules of the Company or any other
entity are required by the Act or the Rules and Regulations to be
included in the Registration Statement or the
Prospectus.
(q)
To the Company's knowledge, Ernst & Young LLP and McGladrey and
Pullen, LLP (the "Accountants"), who have reported on such
financial statements and schedules, are registered independent
public accountants with respect to the Company as required by the
Act and the Rules and Regulations and by the rules of the Public
Company Accounting Oversight Board. The financial statements of the
Company and the related notes and schedules included in the
Registration Statement and the Prospectus have been prepared in
conformity with the requirements of the Act and the Rules and
Regulations and present fairly the information shown
therein.
(r)
The Company is, and at the Closing Date will be, in compliance with
all of the provisions of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated therewith (the "Sarbanes Oxley
Act") with which the Company is required to comply. To the
Company's knowledge, there is, and has been, no failure on the part
of any of the Company's current officers, in their capacities as
such, to comply with any applicable provisions of the Sarbanes
Oxley Act with respect to the Company. The Company maintains
systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company has
established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15 and 15d-15). The Company presented
in its Form 10-K for the fiscal year ended April 30, 2008 (the
"Evaluation Date") the conclusions of the certifying officers about
the effectiveness o the disclosure controls and procedures based
upon their evaluations 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.
(s)
Except as set forth in or otherwise contemplated by the
Registration Statement, since the date of the most recent financial
statements of the Company included or incorporated by reference in
the Registration Statement and prior to Closing, (i) there has
not been and will not have been any change in the capital stock of
the Company (except for changes in the number of outstanding shares
of Common Stock of the Company due to the issuance of shares upon
the exercise of stock options, purchases under the Company's
Employee Stock Purchase Plan) or long-term debt of the Company or
any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock,
or any material adverse change, or any development that would
reasonably be expected to result in a material adverse change in,
or affecting, the business, properties, management, financial
position, stockholders' equity or results of operations of the
Company (a "Material Adverse Change") and (ii) the Company has
not sustained, and does not expect to sustain, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court
or arbitrator or governmental or regulatory authority, except in
each case as otherwise disclosed in the Registration Statement and
the Prospectus.
(t)
Since the date as of which information is given in the Registration
Statement or the Prospectus, the Company has not entered into, and
will not enter into prior to the Closing, any transaction or
agreement, not in the ordinary course of business, that is material
to the Company, or incurred or will incur prior to the Closing any
liability or obligation, direct or contingent, not in the ordinary
course of business, that is material to the Company.
(u)
The Company does not own any real property. The Company has good
and valid title to all personal property described in the
Registration Statement or the Prospectus as being owned by it that
are material to the business of the Company, in each case free and
clear of all liens, encumbrances and claims except those that
(i) do not materially interfere with the use made and proposed
to be made of such property by the Company or (ii) would not
reasonably be expected, individually or in the aggregate, if
determined adversely to the Company, to have a Material Adverse
Effect. Any real property described in the Registration Statement
or the Prospectus as being leased by the Company that is material
to the business of the Company is held by the Company under valid,
existing and enforceable leases, except those that (A) do not
materially interfere with the use made or proposed to be made of
such property by the Company or (B) would not be reasonably
expected, individually or in the aggregate, to have a Material
Adverse Effect.
(v)
The Company is not, nor upon completion of the transactions
contemplated herein will it be, an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(w)
There are no legal, governmental or regulatory actions, suits or
proceedings pending, nor, to the Company's knowledge, any legal,
governmental or regulatory investigations, to which the Company is
a party or to which any property of the Company is the subject
that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its
obligations under the Transaction Documents (collectively, the
"Actions"); to the Company's knowledge, no such Actions are
threatened by any governmental or regulatory authority or
threatened by others; and there are no current or pending legal,
governmental or regulatory investigations, actions, suits or
proceedings that are required under the Act to be described in the
Prospectus that are not so described.
(x)
The Company has, and at the Closing Date will have, (i) all
governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to carry on its respective business
as presently conducted except where the failure to have such
governmental licenses, permits, consents, orders, approvals and
other authorizations would not have a Material Adverse Effect,
(ii) complied with all laws, regulations and orders applicable
to either it or its business, including but not limited to, the
laws contained in, and the rules and regulations promulgated under,
the Employee Retirement Income Security Act of 1974, as amended,
and the Currency and Foreign Transactions Reporting Act of 1970, as
amended, except where the failure to so comply would not have a
Material Adverse Effect, and (iii) performed all its
obligations required to be performed, and is not, and at the
Closing Date will not be, in default, under any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement, lease, contract or other agreement
or instrument (collectively, a "contract or other agreement") to
which it is a party or by which its property is bound or subject,
except where such failure to perform or default would not have a
Material Adverse Effect, and, to the Company's knowledge, no other
party under any material contract or other agreement to which it is
a party is in default in any respect thereunder where such default
would have a Material Adverse Effect. The Company is not in
violation of any provision of its organizational or governing
documents.
(y)
All consents, authorizations, approvals and orders required in
connection with the Transaction Documents have been obtained,
except such as may be required under state securities or Blue Sky
Laws or the by-laws and rules of the Financial Industry Regulatory
Authority ("FINRA") or the NASDAQ Global Market.
(z)
Neither the execution of the Transaction Documents, nor the
issuance, offering or sale of the Offered Securities, nor the
consummation of any of the transactions contemplated herein and
therein, nor the compliance by the Company with the terms and
provisions hereof and thereof will conflict with, or will result in
a breach of, any of the terms and provisions of, or has constituted
or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to
the terms of any contract or other agreement to which the Company
may be bound or to which any of the property or assets of the
Company is subject, except such conflicts, breaches or defaults as
may have been waived nor will such action result (x) in any
violation of the provisions of the organizational or governing
documents of the Company or (y) in any violation of the
provisions of any statute or any order, rule or regulation
applicable to the Company or of any court or of any federal, state
or other regulatory authority or other government body having
jurisdiction over the Company, except for such violations that
could not reasonably be expected to have a Material Adverse
Effect.
(aa)
There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required. All such contracts to which the
Company is a party have been authorized, executed and delivered by
the Company, constitute valid and binding agreements of the
Company, and are enforceable against the Company in accordance with
the terms thereof, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally
and equitable principles of general applicability.
(bb)
The Company and, to the knowledge of the Company, its directors,
officers or controlling persons have not taken, directly or
indirectly, any action intended, or which might reasonably be
expected, to cause or result, under the Act or otherwise, in, or
which has constituted, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of
the Common Stock.
(cc)
No holder of securities of the Company has rights to the
registration of any securities of the Company as a result of the
filing of the Registration Statement or the transactions
contemplated by this Agreement, except for such rights as have been
waived or satisfied.
(dd)
The Common Stock is currently listed on the NASDAQ Global Market.
Except as set forth in the Registration Statement, the Company has
not, in the 12 months preceding the date hereof, received
notice from the NASDAQ Global Market to the effect that the Company
is not in compliance with the listing or maintenance requirements.
The Company is, and expects that in the foreseeable future that it
will continue to be, in compliance with such listing and
maintenance requirements.
(ee)
The Company is not involved in any material labor dispute nor is
any such dispute known by the Company to be threatened.
(ff)
The business and operations of the Company have been and are being
conducted in compliance with all applicable laws, ordinances,
rules, regulations, licenses, permits, approvals, plans,
authorizations or requirements relating to occupational safety and
health, or pollution, or protection of health or the environment
(including, without limitation, those relating to emissions,
discharges, releases or threatened releases of pollutants,
contaminants or hazardous or toxic substances, materials or wastes
into ambient air, surface water, groundwater or land, or relating
to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of chemical substances,
pollutants, contaminants or hazardous or toxic substances,
materials or wastes, whether solid, gaseous or liquid in nature) of
any governmental department, commission, board, bureau, agency or
instrumentality of the United States, any state or political
subdivision thereof, or any foreign jurisdiction, and all
applicable judicial or administrative agency or regulatory decrees,
awards, judgments and orders relating thereto, except where the
failure to be in such compliance will not, individually or in the
aggregate, have a Material Adverse Effect; and the Company has not
received any notice from any governmental instrumentality or any
third party alleging any material violation thereof or liability
thereunder (including, without limitation, liability for costs of
investigating or remediating sites containing hazardous substances
and/or damages to natural resources).
(gg)
Except as disclosed in the Registration Statement, (i) the
Company owns or has obtained valid and enforceable licenses or
options for the inventions, patent applications, patents,
trademarks (both registered and unregistered), trade names,
copyrights and trade secrets necessary for the conduct of its
business as currently conducted (collectively, the "Company
Intellectual Property"); and (ii) (a) there are no third
parties that have any ownership rights to any Company Intellectual
Property described in the Registration Statement or the Prospectus
that would preclude the Company from conducting its business as
currently conducted and have a Material Adverse Effect, except for
the ownership rights of the owners of the Company Intellectual
Property licensed or optioned by the Company; (b) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the rights of the Company
in or to any Company Intellectual Property, other than claims which
would not reasonably be expected to have a Material Adverse Effect;
(c) 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 Company Intellectual Property, other
than actions, suits, proceedings and claims which would not
reasonably be expected to have a Material Adverse Effect; and
(d) there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary right of others, other
than actions, suits, proceedings and claims which would not
reasonably be expected to have a Material Adverse Effect; provided,
however, that with respect to reexamination proceedings filed with
the United States Patent and Trademark Office (the "USPTO"),
opposition proceedings in comparable foreign authorities, or
unpublished or provisional applications filed with the USPTO or
comparable foreign authorities, the representations and warranties
set forth in clauses (b), (c) or (d) above, are qualified
as to the Company's knowledge.
(hh)
The Company has filed all necessary federal, state and foreign
income and franchise tax returns, after taking into account all
applicable extensions obtained, except where the failure to file
would not reasonably be expected to have a Material Adverse Effect,
and has paid or accrued all taxes shown as due thereon, and the
Company has no knowledge of any tax deficiency which has been or
might be asserted or threatened against it which could have a
Material Adverse Effect.
(ii)
The Company maintains insurance of the types and in the amounts
that the Company reasonably believes are appropriate for its
business, including, but not limited to, insurance covering real
and personal property owned or leased by the Company against theft,
damage, destruction, or acts of vandalism, all of which insurance,
to the knowledge of the Company, is in full force and
effect.
(jj)
Neither the Company, nor, to the knowledge of the Company, any
director, officer, agent or employee of the Company, has directly
or indirectly, (i) made any unlawful contribution to any
candidate for public office, or failed to disclose fully any
contribution in violation of law, (ii) made any payment to any
United States federal or state governmental officer or official, or
othe
