Exhibit 10.1
NANOGEN, INC.
6,802,721 Shares of Common Stock
and
Warrants to Purchase 1,020,408
Shares of Common Stock
PLACEMENT AGENCY
AGREEMENT
September 27, 2005
Seven Hills Partners LLC
Stonegate Securities, Inc.
c/o Seven Hills Partners
LLC
88 Kearny Street, Fifth Floor
San Francisco, California 94108
Ladies and Gentlemen:
Nanogen, Inc., a Delaware
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell to
certain investors (collectively, the “ Investors
”) up to 6,802,721 units (the “ Units ”),
each Unit consisting of (i) one share (the “
Shares ”) of the Company’s common stock, par
value $0.001 per share (the “ Common Stock ”),
and (ii) one warrant (the “ Warrants ”) to
purchase 0.15 shares of Common Stock in substantially the form
attached hereto as Exhibit A. The Company desires to engage Seven
Hills Partners LLC as its lead placement agent (“the “
Lead Placement Agent ”) and Stonegate Securities, Inc.
as its co-placement agent (the “ Co-Placement Agent
” and, together with the Lead Placement Agent, the “
Placement Agents ”) in connection with such issuance
and sale. The shares issuable upon the exercise of the Warrants are
referred to herein as the “ Warrant Shares ”
and, together with the Units, the Shares and the Warrants, are
referred to herein as the “ Securities .” The
Units will not be issued or certificated. The Shares and the
Warrants will be issued separately and may be transferred
separately. The Securities are described more fully in the
Registration Statement (as hereinafter defined).
The Company hereby confirms as
follows its agreements with the Placement Agents:
1. Agreement to Act as Placement
Agents; Representations and Warranties of the Placement Agents
. 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 Agents agree to act as
the Company’s exclusive placement agents in connection with
the issuance and sale, on a best efforts basis, by the Company of
the Units to the Investors. Upon the occurrence of the Closing (as
hereinafter defined), the Company shall pay to the Placement Agents
4.8% of the total gross proceeds received by the Company from the
sale of the Units as set forth on the cover page of the Prospectus
(as hereinafter defined). Upon the exercise of any Warrant, the
Placement Agents shall be entitled to receive a cash fee equal to
4.8% of the funds received by the Company upon any such exercise,
payable immediately upon receipt by the Company to the Lead
Placement Agent. Each of the Placement Agents represents and
warrants to the Company that it is registered as a broker-dealer
with the Securities and Exchange Commission (the “
Commission ”) and all relevant states in which
registration is required in connection with the sale of the
Units
and is a member of the National Association of
Securities Dealers, Inc. (the “ NASD ”). The
Co-Placement Agent hereby authorizes the Lead Placement Agent to
take such action on its behalf and to exercise such powers under
this Agreement as are provided to the Lead Placement Agent by the
terms hereof, together with such powers as are reasonably
incidental thereto.
2. Delivery and Payment .
Concurrently with the execution and delivery of this Agreement, the
Company, the Placement Agents and Wells Fargo Bank, N.A., as escrow
agent (the “ Escrow Agent ”), shall enter into
an escrow agreement substantially in the form of Exhibit B attached
hereto (the “ Escrow Agreement ”), pursuant to
which an escrow account will be established, at the Company’s
expense, for the benefit of the Company and the Investors (the
“ Escrow Account ”). Prior to or on the Closing
Date (as hereinafter defined), each of the Investors will deposit
in the Escrow Account an amount equal to the price per Unit as
shown on the cover page of the Prospectus multiplied by the number
of Units to be purchased by such Investor (such amounts in the
aggregate are hereinafter referred to as the “ Escrow
Funds ”). At 12:00 p.m., Pacific time, on
September 28, 2005 or at such other time or times on such
other date or dates as provided in the Escrow Agreement (such date
or dates are hereinafter referred to as the “ Closing
Date ”), the Escrow Agent will disburse the Escrow Funds
from the Escrow Account to the Company and the Lead Placement Agent
as provided in the Escrow Agreement and the Company shall deliver
the Units to the Investors. The Shares shall be delivered to the
Investors through the facilities of The Depository Trust
Company’s DWAC system. Each Investor will receive from the
Company the Warrants purchased by the Investor promptly following
the Closing. The closing of the sale of the Units to the Investors
(the “ Closing ”) shall take place at the office
of Morrison & Foerster LLP, 425 Market Street, San
Francisco, California 94105, or such other place as may be agreed
upon by the Company and the Lead Placement Agent. All actions taken
at the Closing shall be deemed to have occurred simultaneously. The
parties agree that closing of the purchase of the Units will be on
an “any or all” basis such that there may be more than
one Closing or the Lead Placement Agent may specify a single
Closing at which the closing of the subscription for all Units
shall occur.
The Shares and the Warrants shall be
registered in such names and in such denominations as the Lead
Placement Agent shall request by written notice to the
Company.
3. Representations and Warranties
of the Company . The Company represents and warrants to the
Placement Agents that:
(a) Registration Statement.
The Company has filed with the Commission a “shelf”
registration statement on Form S-3 (Registration
No. 333-125975), which has become effective, relating to the
Securities, under the Securities Act of 1933, as amended (the
“ Act ”), and the rules and regulations
(collectively referred to as the “ Rules and
Regulations ”) of the Commission promulgated thereunder.
The registration statement, as amended at the time it became
effective, including the exhibits and information (if any) deemed
to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 434(d) under the Act,
is hereinafter referred to as the “Registration
Statement.” No stop order suspending the effectiveness of the
Registration Statement has been issued and, to the Company’s
knowledge, no proceeding for that purpose has been initiated or
threatened by the Commission. The Company, if required by the Rules
and Regulations, proposes to file the Prospectus (as hereinafter
defined) with the Commission pursuant to Rule 424(b) of the Rules
and Regulations (“ Rule 424(b) ”).
The
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Prospectus, in the form in which it is to be
filed with the Commission pursuant to Rule 424(b), 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 at the time the Registration Statement
became effective, is hereinafter referred to as the
“Prospectus,” except that if any revised prospectus or
prospectus supplement shall be provided to the Placement Agents by
the Company for use in connection with the offering and sale of the
Units 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)), the term
“Prospectus” shall be deemed to include such revised
prospectus or prospectus supplement, as the case may be, from and
after the time it is first provided to the Placement Agents 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 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 by the Company under the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
on or before the last to occur of the effective date of the
Registration Statement, 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 of the Registration
Statement, the date of such Preliminary Prospectus or the date of
the Prospectus, as the case may be, and on or before the Closing
Date, which is incorporated therein by reference and (ii) any
such document so filed. As used in this Agreement, the phrase
“disclosed in” as it relates to information disclosed
in any document includes any information included or incorporated
by reference in such document.
(b) Registration Statement and
Prospectus. When the Registration Statement became effective,
the Registration Statement (and any post-effective amendment
thereto), as amended or as supplemented if the Company shall have
filed with the Commission any amendment or supplement to the
Registration Statement, complied in all material respects with the
Act and the Rules and Regulations, and 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 not misleading. Upon the filing or first delivery to the
Investors of the Prospectus, as of the date hereof, and at the
Closing Date, the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment or
supplement to the Prospectus), complied and will comply in all
material respects with the Act and the Rules and Regulations, 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 to make the statements therein (in light of
the circumstances under which they were made) not misleading;
except that no representation or warranty is made in this
Section 3(b) with respect to statements or omissions made in
reliance upon and in conformity with written information furnished
to the Company by the Placement Agents expressly for inclusion in
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, as stated in Section 7(b) hereof. The
Company has not distributed any offering materials in connection
with the offering and sale of the Units other than the Registration
Statement and the Prospectus.
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(c) Subsidiaries . SynX
Pharma, Inc., Epoch Biosciences, Inc., Nanogen Europe B.V.,
Nanotronics, Inc., Nanogen Recognomics GmbH and Oy Jurilab Ltd are
the only subsidiaries of the Company. Except as set forth in the
Prospectus, the Company owns, directly or indirectly, all or a
majority of the capital stock, membership interests or partnership
interests, as applicable, of each such subsidiary free and clear of
any lien, charge, security interest, encumbrance, right of first
refusal or other restriction, and all the issued and outstanding
shares of capital stock, membership interests or partnership
interest of each such subsidiary are validly issued and are fully
paid, nonassessable and free of preemptive and similar rights. The
capitalized term “Subsidiaries” or
“Subsidiaries” as used herein shall refer to the
foregoing subsidiaries of the Company other than Oy Jurilab
Ltd.
(d) Financial Statements .
The consolidated financial statements and the related notes thereto
of the Company included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material
respects with the applicable requirements of the Act and the
Exchange Act, as applicable, and present fairly, in all material
respects the consolidated financial position of the Company and its
Subsidiaries, taken as a whole, as of the dates indicated and the
results of their consolidated operations and the changes in their
consolidated cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby (except as otherwise stated therein and
subject, in the case of unaudited financial statements, to the
absence of footnotes and normal year end adjustments), and the
other financial and statistical information of the Company included
or incorporated by reference in the Registration Statement and the
Prospectus has been derived from the accounting records of the
Company and its Subsidiaries and presents fairly the information
shown thereby. The pro forma financial statements and other pro
forma financial information, if any, included or incorporated by
reference in the Registration Statement and the Prospectus with
respect to the Company present fairly, and with respect the
information shown therein, have been prepared in accordance with
the applicable requirements of the Act and the Rules and
Regulations with respect to pro forma financial statements
(including Article 11 of Regulation S-X) and have been properly
computed on the basis described therein. No other consolidated
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.
(e) No Material Adverse
Change . Except as set forth in or otherwise contemplated by
the Registration Statement (exclusive of any amendment thereof but
inclusive of any report incorporated by reference therein on or
prior to the date of this Agreement) or the Prospectus (exclusive
of any supplement thereto but inclusive of any report incorporated
by reference therein on or prior to the date of this Agreement),
since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration
Statement and the Prospectus and prior to Closing, (i) there
has not 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 or
conversion of securities exercisable for, or convertible into,
shares of Common Stock outstanding on the date hereof) or long-term
debt of the Company or any of its Subsidiaries 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; (ii) any
material adverse change, or, to the knowledge of the Company, any
development that would result in a material adverse change in or
affecting the general affairs, business, properties,
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management, consolidated financial position,
stockholders’ equity or results of operations of the Company
and its Subsidiaries taken as a whole (a “ Material
Adverse Change ”); (iii) neither the Company nor any
of its Subsidiaries have entered or will enter into any transaction
or agreement, not in the ordinary course of business, that is
material to the Company and its Subsidiaries taken as a whole or
incurred or will incur any liability or obligation, direct or
contingent, not in the ordinary course of business, that is
material to the Company and its Subsidiaries taken as a whole; and
(iv) neither the Company nor any of its Subsidiaries has
sustained or will sustain any material loss or interference with
its business from any force majeure, including 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.
(f) Organization. Each of the
Company and its Subsidiaries, respectively, is and at the Closing
Date will be, duly organized, validly existing as a corporation or
other business entity, as applicable, and in good standing under
the laws of its respective jurisdiction of organization, and each
of the Company and its Subsidiaries, respectively, is and at the
Closing Date will be, duly qualified as a foreign corporation for
transaction of business and in good standing under the laws of each
other jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have, and at the Closing Date will have,
all corporate or other power and authority necessary to own or hold
their respective properties and to conduct their respective
businesses as described in the Registration Statement and the
Prospectus, except 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 have a
material adverse effect on or affecting the general affairs,
business, properties, management, consolidated financial position,
stockholders’ equity or results of operations of the Company
and its Subsidiaries taken as a whole (a “Material Adverse
Effect”).
(g) Capitalization . The
issued and outstanding shares of capital stock of the Company have
been validly issued, are fully paid and nonassessable and, other
than as disclosed in or contemplated by the Registration Statement
or the Prospectus, are not subject to any preemptive 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 (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 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, and at the Closing
Date will be, complete and accurate in all material respects.
Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, as of the date referred to therein,
the Company did 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.
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(h) Due Authorization and
Enforceability . The Company has full legal power and authority
to enter into this Agreement and the Escrow Agreement (together,
the “ Transaction Documents ”) and the Warrants
and to consummate the transactions contemplated hereby and thereby
by the Company. The Transaction Documents have been duly
authorized, executed and delivered by the Company and constitute
legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms,
except as rights to indemnity and contribution thereunder may be
limited by federal or state securities laws and matters of public
policy and except as such enforceability may be subject to the
effect of applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally and
equitable principles of general applicability. When the Warrants
have been duly executed and delivered by the Company to the
Investors in accordance with this Agreement, the Warrants will
constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective
terms, except as rights to indemnity and contribution thereunder
may be limited by federal or state securities laws and matters of
public policy and except as such enforceability may be subject to
the effect of applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally and
equitable principles of general applicability.
(i) The Securities . The
Shares and the Warrant Shares have been duly authorized by the
Company and, when issued and delivered and paid for as provided
herein, will be validly issued, fully paid and nonassessable and
will conform to the descriptions thereof disclosed in the
Prospectus; and the issuance of the Shares and the Warrant Shares
is not subject to any preemptive or similar rights.
(j) No Violation or Default .
Neither the Company nor any of its Subsidiaries is: (i) in
violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that,
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 contained in 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; or (iii) in violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of each
of clauses (ii) and (iii) above, for any such violation
or default that would not, individually or in the aggregate, have a
Material Adverse Effect and, only with respect to the Subsidiaries,
in the case of clause (i) above, except for any such violation
that would not, individually or in the aggregate, have a Material
Adverse Effect.
(k) No Conflicts . The
execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale by the Company of the
Shares and the Warrant Shares and the consummation by the Company
of the transactions contemplated by the Transaction Documents will
not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its Subsidiaries pursuant to, 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
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Company or any of its Subsidiaries is subject;
(ii) result in any violation of the provisions of the charter
or by-laws or similar organizational documents of the Company or
any of its Subsidiaries; or (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
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, have a Material Adverse Effect and, only with
respect to the Subsidiaries, in the case of clause (ii) above,
except for any such violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(l) No Consents Required . No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of each of the Transaction Documents,
the issuance and sale by the Company of the Shares and the Warrant
Shares and the consummation by the Company of the transactions
contemplated by the Transaction Documents, except for the inclusion
of the Shares and the Warrant Shares for quotation on the NASDAQ
National Market and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under
applicable state securities laws or by the by-laws and rules of the
NASD in connection with the distribution of the Units by the
Placement Agents.
(m) Legal Proceedings . There
are no legal, governmental or regulatory actions, suits or
proceedings pending, nor, to the Company’s knowledge, any
legal, governmental or regulatory investigations pending, to which
the Company or any of its Subsidiaries is a party or to which any
property of the Company or any of its Subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to
the Company or any of its Subsidiaries, would reasonably be
expected by the Company to have a Material Adverse Effect or
materially and adversely affect the ability of the Company to
perform its obligations under the Transaction Documents; to the
Company’s knowledge, no such actions, suits or proceedings
are threatened or contemplated by any governmental or regulatory
authority or threatened by others; and (i) there are no
current or pending legal, governmental or regulatory
investigations, actions, suits or proceedings that are required
under the Act to be disclosed in the Prospectus that are not so
disclosed; and (ii) there are no contracts or other documents
that are required under the Act to be filed as exhibits to the
Registration Statement that are not so filed.
(n) Independent Accountants .
Ernst & Young LLP, who have certified certain financial
statements of the Company and its Subsidiaries, serves as the
Company’s independent registered public accounting firm (the
“ Accountants ”) with respect to the Company and
its Subsidiaries as required by the Act.
(o) Title to Real and Personal
Property . The Company and its Subsidiaries have good and
marketable title in fee simple to all items of real property and
good and marketable title to all personal property owned by them,
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 and
its Subsidiaries or (ii) would not, individually or in the
aggregate, have a Material Adverse Effect, and except as disclosed
in the Prospectus. Any real property leased by the Company and its
Subsidiaries is held by them under valid, existing and enforceable
leases, without any liens, restrictions, encumbrances or claims,
except those that (A) do not materially interfere with the use
made or proposed to be made of such property by the
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Company or any of its Subsidiaries or
(B) would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) Title to Intellectual
Property . The Company and its Subsidiaries own or possess
adequate rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
(collectively, the “ Intellectual Property ”)
necessary for the conduct of their respective businesses as
conducted as of the date hereof, except to the extent that the
failure to own or possess adequate rights to use such Intellectual
Property would not, individually or in the aggregate, have a
Material Adverse Effect, and except as disclosed in the Prospectus.
The Intellectual Property of the Company does not, to the knowledge
of the Company, infringe or conflict with any right or valid and
enforceable patent of any Intellectual Property of any third party
which is the subject of a patent application known to the Company
which could result in a Material Adverse Effect, and, except as
disclosed in the Prospectus, the Company and its Subsidiaries have
not received any written notice of any claim of infringement or
conflict which asserted Intellectual Property rights of others,
which infringement or conflict, if the subject of an unfavorable
decision, would result in a Material Adverse Effect. To the
knowledge of the Company, no third party, including any academic or
governmental organization, possesses rights to the Intellectual
Property of the Company which, if exercised, could enable such
third party to develop products competitive to those of the Company
or could have a material adverse effect on the ability of the
Company to conduct its business in the manner disclosed in the
Prospectus.
(q) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company or any of its Subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its Subsidiaries, on the other,
which is required by the Act to be disclosed in the Registration
Statement and the Prospectus and is not so disclosed.
(r) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Securities to be sold by the Company and the
application of the proceeds thereof as described in the Prospectus,
will not be an “investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
(s) Taxes . The Company and
its Subsidiaries have filed all federal, state, local and foreign
tax returns which have been required to be filed and paid all taxes
shown thereon through the date hereof, to the extent that such
taxes have become due and are not being contested in good faith;
and no tax deficiency has been determined adversely to the Company
or any of its Subsidiaries which has had, or would have,
individually or in the aggregate, a Material Adverse
Effect.
(t) Licenses and Permits .
The Company and its Subsidiaries possess or have obtained all
licenses, certificates, permits and other authorizations issued by,
and have made all declarations and filings with, the appropriate
federal, state, local and foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their
respective properties
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or the conduct of their respective businesses as
described in the Registration Statement and the Prospectus (the
“ Permits ”), except where the failure to
possess, obtain or make the same would not, individually or in the
aggregate, have a Material Adverse Effect; and neither the Company
nor any of its Subsidiaries has received written notice of any
proceeding relating to revocation or modification of any such
Permit or has any reason to believe that such Permit will not be
renewed in the ordinary course, except where such revocation or
modification of any such Permit or the failure to obtain any such
renewal would not, individually or in the aggregate, have a
Material Adverse Effect.
(u) No Labor Disputes . No
labor disturbance by or dispute with employees of the Company or
any of its Subsidiaries exists or, to the knowledge of the Company,
is threatened which would result in a Material Adverse
Effect.
(v) Compliance With Environmental
Laws . The Company and its Subsidiaries: (i) are in
compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, decisions and orders relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “ Environmental Laws ”);
(ii) have received and are in compliance with all permits,
licenses and other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as
described in the Registration Statement and the Prospectus; and
(iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants, except, in the case of any of clauses (i),
(ii) or (iii) above, for any such failure to comply or
failure to receive required permits, licenses, or other approvals
or any such liability as would not, individually or in the
aggregate, have a Material Adverse Effect.
(w) Compliance With ERISA .
Each material employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ ERISA ”), that is
maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and
its Subsidiaries has been maintained in material compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “ Code
”); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has
occurred which would result in a material liability to the Company
with r
