Exhibit 10.1
UNDERWRITING AGREEMENT
ENVIRONMENTAL POWER CORPORATION
2,000,000 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
November 15, 2005
UNDERWRITING AGREEMENT
November 15, 2005
MDB Capital Group LLC
401 Wilshire Blvd. Suite 1020
Santa Monica, CA 90401
Ladies and Gentlemen:
Environmental Power Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell to MDB Capital Group LLC (the “Underwriter”)
an aggregate of 2,000,000 shares (the “Firm Shares”) of
Common Stock, $0.01 par value per share (the “Common
Stock”), of the Company. In addition, solely for the purpose
of covering over-allotments, the Company proposes to issue and sell
to the Underwriter up to an additional 300,000 shares of Common
Stock (the “Additional Shares”) if and to the extent
that you shall have determined to exercise the right to purchase
such shares of common stock granted to the Underwriter in
Section 1 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively sometimes referred to as the
“Shares.” The Shares are described in the Prospectus
that is referred to below.
The Company has filed, in accordance
with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the
“Act”), with the Securities and Exchange Commission
(the “Commission”) a registration statement on Form S-2
(File No. 333-128863) including a prospectus, relating to the
Shares. The Company has furnished to you, for use by the
Underwriter and by dealers, copies of one or more preliminary
prospectuses (each such preliminary prospectus is herein called a
“Preliminary Prospectus”) relating to the Shares. The
registration statement, as amended at the time it becomes
effective, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and
deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430(A) under the Act and also
including any registration statement filed pursuant to Rule 462(b)
under the Act, is herein called the “Registration
Statement,” and the prospectus, in the form filed by the
Company with the Commission pursuant to Rule 424(b) under the Act
on or before the second business day after the date hereof (or such
earlier time as may be required under the Act) or, if no such
filing is required, the form of final prospectus included in the
Registration Statement at the time it became effective, is herein
called the “Prospectus.” As used herein, the terms
“Registration Statement” and “Prospectus”
include the documents incorporated by reference therein
(collectively, the “Incorporated Documents”). The terms
“supplement,” “amendment” and
“amend” as used herein with respect to the Prospectus
or the Registration Statement shall include all documents deemed to
be incorporated by reference in the Registration Statement or
Prospectus that are filed subsequent to the date of such
Registration Statement or Prospectus, as the case may be, with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). As used herein,
“Business Day” shall mean a day on which the New York
Stock Exchange is open for trading.
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The Company and the Underwriter
agree as follows:
1. Sale and Purchase . Upon
the basis of the representations and warranties contained in this
agreement, and subject to its terms and conditions, the Company
agrees to issue and sell to the Underwriter, and the Underwriter
agrees to purchase from the Company the Firm Shares at a purchase
price of $6.51 per Share (the “Purchase
Price”).
On the basis of the representations
and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to sell to the Underwriter
the Additional Shares, and the Underwriter shall have the right to
purchase up to 300,000 Additional Shares at the Purchase Price. You
may exercise this right in whole or from time to time in part by
giving written notice of each election to exercise the option not
later than 30 days after the date of this Agreement. Any exercise
notice shall specify the number of Additional Shares to be
purchased by the Underwriter and the date on which such shares are
to be purchased. Each purchase date must be at least one business
day after the written notice is given and may not be earlier than
the closing date for the Firm Shares nor later than ten business
days after the date of such notice. Additional Shares may be
purchased as provided in Section 2 hereof solely for the
purpose of covering over-allotments made in connection with the
offering for the Firm Shares. On each day, if any, that Additional
Shares are to be sold (an “Option Closing Date”), the
Underwriter agrees to purchase the number of Additional Shares
specified in the notice of exercise.
The Company hereby agrees that,
without the prior written consent of MDB Capital Group LLC, it will
not, during the period ending 90 days after the date of the
Prospectus (the “Restricted Period”), (a) offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock
or any securities convertible into or exercisable or exchangeable
for Common Stock, (b) file any registration statement with the
Commission relating to the offering of any shares of Common Stock
or any securities convertible into or exercisable or exchangeable
for Common Stock, other than registration statements on Form S-8
and Form S-8/S-3 relating to the resale of shares issued by the
Company upon the exercise of options granted or to be granted by
the Company pursuant to any employee benefit plan, the terms of
which have been disclosed in the Prospectus or (c) enter into
any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (a),
(b) or (c) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise.
The restrictions contained in the
preceding paragraph shall not apply to (a) the Shares to be
sold hereunder or (b) the issuance by the Company of shares of
Common Stock or securities convertible into or exchangeable for
Common Stock in connection with (i) any mergers or
acquisitions of securities, businesses, property or other assets,
(ii) joint ventures or other strategic corporate transactions,
(iii) the exercise of an option or warrant or the conversion
of a security outstanding on the date hereof of which the
Underwriter has been advised in writing or (iv) any employee
benefit plan that has been adopted by the Company prior to the date
hereof, provided that the terms of each such employee benefit plan
have been disclosed in the Prospectus and the Incorporated
Documents.
2. Payment and Delivery .
Payment for the Firm Shares to be sold by the Company shall be made
to the Company in Federal or other funds immediately available at
such place in Los Angeles, California as you shall designate
against delivery of such Firm Shares for the account of the
Underwriter. Such payment and delivery shall be made at 10:00 A.M.,
New York City time, on November 21, 2005, or at such other
time on the same day or such other date, not
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later than November 21, 2005, as shall be
designated in writing by you. The time and date of such payment and
delivery are hereinafter referred to as the “Closing
Date.”
Payment for any Additional Shares
shall be made to the Company in Federal or other funds immediately
available at such place in Los Angeles, California as you shall
designate against delivery of such Additional Shares for the
account of the Underwriter at 10:00 A.M. New York City time, on the
date specified in the corresponding notice described in
Section 1 hereof or at such other time on the same or on such
other date, in any event not later than December 20, 2005, as
shall be designated in writing by you.
The Firm Shares and Additional
Shares shall be registered in such names and in such denominations
as you shall request in writing not later than one full business
day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares
shall be delivered to you on the Closing Date or an Option Closing
Date, as the case may be, for the account of the Underwriter, with
any transfer taxes payable in connection with the transfer of the
Shares to the Underwriter duly paid, against payment of the
Purchase Price therefor.
3. Terms of Public Offering .
The Company is advised by you that the Underwriter proposes to make
a public offering of the Shares as soon as after the Registration
Statement and this Agreement have become effective as in your
judgment is advisable. The Company is further advised by you that
the Shares are to be offered to the public initially upon the terms
set forth in the Prospectus.
4. Representations and Warranties
of the Company . The Company represents and warrants to and
agrees with the Underwriter that:
(a) The Registration Statement has
been declared effective under the Act; no stop order of the
Commission preventing or suspending the use of any Preliminary
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; each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects to the
requirements of the Act and the last Preliminary Prospectus
distributed in connection with the offering of the Shares did not,
as of its date, and does 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; the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the requirements of the Act; the Company is
eligible to use of Form S-2 for the registration of the Shares; the
Registration Statement, when it became effective, did not contain
and, as amended or supplemented, if applicable, will not contain
any 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 and the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any 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 warranty or representation with respect to any statements
or omissions contained in the last Preliminary Prospectus, the
Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriter and
furnished in writing by or on behalf of the Underwriter to the
Company in writing expressly for use in the last Preliminary
Prospectus, the Registration Statement or the Prospectus; and the
Company has not distributed and will not distribute any
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offering material in connection with
the offering or sale of the Shares other than the Registration
Statement, the then most recent Preliminary Prospectus and the
Prospectus;
(b) as of the date of this
Agreement, the Company has an authorized and outstanding
capitalization as set forth in the section of the Registration
Statement and the Prospectus entitled “Capitalization”
and, as of the Closing Date and Option Closing Date, as the case
may be, the Company shall have an authorized and outstanding
capitalization as set forth in the section of the Registration
Statement and the Prospectus entitled “Capitalization”
(subject, in each case, to the issuance of shares of Common Stock
upon exercise of stock options and warrants disclosed as
outstanding in the Registration Statement and the Prospectus and
grant of options under existing stock option plans described in the
Registration Statement and the Prospectus); all of the issued and
outstanding securities, including the Common Stock, of the Company
prior to the issuance of the Shares to be sold by the Company have
been duly authorized and are validly issued, fully paid and
non-assessable, have been issued in compliance in all material
respects with all federal and state securities laws and were not
issued in violation of any preemptive right, resale right, right of
first refusal or similar right;
(c) the Company and each of its
subsidiaries listed on Exhibit 21.01 to the Registration Statement
(the “Material Subsidiaries”) has been duly
incorporated or organized and is validly existing as a corporation,
limited partnership or limited liability company, as the case may
be, in good standing under the laws of its respective jurisdiction
of incorporation or organization, with full corporate, limited
partnership or limited liability company power and authority to
own, lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus; and all
of the outstanding capital stock, partnership interests or
membership interests, as the case may be, of each subsidiary has
been duly authorized and validly issued and is fully paid and
nonassessable and, except as otherwise stated in the Registration
Statement or Prospectus, is owned by the Company free of all
restrictions on transfer (other than those imposed by the Act and
the securities laws of certain jurisdictions), liens, encumbrances,
security interests and claims whatsoever;
(d) the Company and each of its
Material Subsidiaries is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to
be so qualified or in good standing would not, individually or in
the aggregate, have a material adverse effect on the business,
properties, financial condition, results of operation or prospects
of the Company and its subsidiaries (a “Material Adverse
Effect”);
(e) of the Company’s
subsidiaries, each of EPC Corporation and Buzzard Power Corporation
is a “significant subsidiary” (as defined under
Regulation S-X promulgated by the Commission);
(f) each of the Incorporated
Documents, as amended, complied as to form when so filed in all
material respects with the Exchange Act and the applicable rules
and regulations of the Commission;
(g) the Shares to be sold by the
Company have been duly and validly authorized and, when issued and
delivered against payment therefore as provided herein, will be
validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive rights, resale
rights, rights of first refusal or similar rights;
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(h) the capital stock of the
Company, including the Shares, conforms in all material respects to
the description thereof contained in the Registration Statement and
the Prospectus, and the certificates for the Shares are in due and
proper form and the holders of the Shares will not be subject to
personal liability solely by reason of being such
holders;
(i) this Agreement has been duly
authorized, executed and delivered by the Company;
(j) neither the Company nor its
Material Subsidiaries is in violation of its respective charter or
by-laws, limited partnership agreement or regulations, as the case
may be, or in default under (nor has any event occurred which with
notice, lapse of time or both would result in any breach or
violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any Material Subsidiary is a
party or by which it or any of its properties may be bound or
affected, in each case except where any such breach, violation or
default would not, individually or in the aggregate, have a
Material Adverse Effect; the Company’s activities do not
breach or violate, any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to
such activities, in each case except where any such breach or
violation would not, individually or in the aggregate, have a
Material Adverse Effect;
(k) the execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or
violation of or constitute a default under) the charter or by-laws
of the Company or the limited partnership agreement or regulations
of any Material Subsidiary, or any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any subsidiary is a party or by
which any of them or any of their properties may be bound or
affected, or any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Company
or any subsidiary;
(l) no approval, authorization,
consent or order of, or qualification with, or filing with any
governmental or regulatory commission, board, body, authority or
agency is required in connection with the issuance and sale of the
Shares or the performance by the Company of its obligations under
this Agreement other than registration of the Shares under the Act
and the application for the listing of the Shares with the American
Stock Exchange, each of which has been or will be effected, and any
necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by
the Underwriter or under the rules and regulations of the
NASD;
(m) except as set forth in the
Registration Statement and the Prospectus, or waived in writing:
(A) (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares
of Common Stock or shares of any other capital stock or other
equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other
rights to purchase any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, and
(iii) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and
sale
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of the Shares, in the case of each
of the foregoing clauses (i), (ii) and (iii), whether as a
result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise; and
(B) no person has the right, contractual or otherwise, to
cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock or other equity
interests of the Company (other than such rights as have been
satisfied by currently effective registration statements filed by
the Company), or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby or otherwise;
(n) the Company and the Material
Subsidiaries have all necessary licenses, authorizations, consents
and approvals and have made all necessary filings required under
any federal, state, local or foreign law, regulation or rule, and
have obtained all necessary authorizations, consents and approvals
from other persons, in order to conduct their respective
businesses, except where the failure to have any such licenses,
authorizations, consents or approvals or to have made any such
filings would, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor its Material Subsidiaries
is in violation of any federal, state, local or foreign law,
regulation or rule applicable to the Company and its Material
Subsidiaries, except where any such violations would not,
individually or in the aggregate, have a Material Adverse Effect;
neither the Company nor its Material Subsidiaries is in violation
of, or in default under, nor has it received notice of any
proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or its Material Subsidiaries,
except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material
Adverse Effect;
(o) all legal or governmental
proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents
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 have been so described or filed as
required;
(p) there are no actions, suits,
claims, investigations or proceedings pending or threatened or, to
the Company’s knowledge, contemplated to which the Company or
any of its directors or officers or Material Subsidiaries is or
would be a party or of which any of the properties of the Company
or its Material Subsidiaries is or would be subject at law or in
equity, before or by any governmental or regulatory commission,
board, body, authority or agency, except any such action, suit,
claim, investigation or proceeding which would not result in a
judgment, decree or order having, individually or in the aggregate,
a Material Adverse Effect or preventing consummation of the
transactions contemplated hereby; there are no material legal or
governmental proceedings pending before or by any governmental or
regulatory commission, board, body, authority or agency relating to
the Company’s business practices and activities and, to the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others;
(q) Vitale, Caturano &
Company, Ltd. and Deloitte & Touche LLP, who have
certified certain financial statements of the Company, whose
reports are filed with the Commission and incorporated by reference
as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the Act. Except as
described in the Prospectus and as pre-approved in accordance with
the requirements set forth in Section 10A of the Exchange Act,
Vitale, Caturano & Company, Ltd. and Deloitte &
Touche LLP have not been engaged by the Company to perform any
“prohibited activities” (as defined in Section 10A
of the Exchange Act);
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(r) the audited financial statements
incorporated by reference as part of the Registration Statement and
the Prospectus, together with the related notes and schedules,
present fairly in all material respects the financial position of
the Company as of the dates indicated and the results of operations
and cash flows of the Company for the periods specified and have
been prepared in compliance in all material respects with the
requirements of the Act and in conformity with generally accepted
accounting principles applied on a consistent basis during the
periods involved; any pro forma financial statements or data
included in the Registration Statement and the Prospectus comply
with the requirements of Regulation S-X of the Act and the
assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have
been properly applied to the historical amounts in the compilation
of those statements and data; the other financial and statistical
data set forth in the Registration Statement and the Prospectus are
accurately presented and prepared on a basis consistent with the
financial statements and books and records of the Company and its
Material Subsidiaries; there are no financial statements
(historical or pro forma) that are required to be included in the
Registration Statement and the Prospectus that are not included as
required; and the Company does not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet
obligations), not disclosed in the Registration Statement and the
Prospectus; except as disclosed in the Prospectus, there are no
material off-balance sheet transactions (as defined in
Item 301 of Regulation S-K), arrangements, obligations
(including contingent obligations) or any other relationships with
unconsolidated entities or other persons, that have or are
reasonably likely to have a material current or future effect on
the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures,
capital resources, or significant components of revenues or
expenses;
(s) subsequent to the respective
dates as of which information is given in the Registration
Statement and the Prospectus, there has not been (i) any
material adverse change, or any development involving a prospective
material adverse change, in the business, prospects, properties,
management, financial condition or results of operations of the
Company and its subsidiaries, whether or not in the ordinary course
of business (ii) any transaction which is material to the
Company, (iii) any obligation, direct or contingent (including
any off-balance sheet obligations), incurred by the Company and its
subsidiaries, which is material to the Company and its
subsidiaries, (iv) any material change in the capital stock or
outstanding indebtedness of the Company and its Material
Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the
Company;
(t) the Company is not and, after
giving effect to the offering and sale of the Shares, will not be
an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(u) other than as disclosed in the
Registration Statement and Prospectus, the Company and its
subsidiaries have good and marketable title to all property (real
and personal) described in the Registration Statement and in the
Prospectus as being owned by them, in each case, free and clear of
all liens, claims, security interests or other encumbrances and
defects; all the property described in the Registration Statement
and the Prospectus as being held under lease by the Company and its
subsidiaries is held by them under valid and enforceable
leases;
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(v) the Company and its subsidiaries
own, or have obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), trade names,
copyrights, trade secrets and other proprietary information
described in the Registration Statement and the Prospectus as being
owned or licensed by it or which are necessary for the conduct of
its business (collectively, “INTELLECTUAL PROPERTY”);
the Company has not infringed any patent, trademark, copyright,
trade secret or other proprietary rights of others; the Company has
taken all reasonable steps necessary to secure interests in its
Intellectual Property from its employees and contractors; none of
the technology employed by the Company has been obtained or is
being used by the Company in violation of any contractual
obligation binding on the Company or, to the Company’s
knowledge, any of its officers, directors or employees or Material
Subsidiaries or otherwise in violation of the rights of others;
(i) there are no third parties who have or, to the
Company’s knowledge, will be able to establish rights to any
Intellectual Property, except for the ownership rights of the
owners of the Intellectual Property which is licensed to the
Company; (ii) to the Company’s knowledge, there is no
infringement by third parties of any Intellectual Property;
(iii) there is no pending or threatened action, suit,
proceeding or claim by others challenging the Company’s
rights or the rights of any Material Subsidiary in or to any
Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such claim;
(iv) 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 Intellectual Property, and the Company
is unaware of any facts which could form a reasonable basis for any
such claim; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others,
and neither the Company nor any Material Subsidiary has received
any written or oral communications from a third party claiming,
that the Company or any Material Subsidiary infringes or otherwise
violates, or by conducting the business of the Company as described
in the Prospectus would infringe or otherwise violate, any patent,
trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any facts which could form a
reasonable basis for any such claim; and (vi) to the
Company’s knowledge, there is no patent or patent application
that contains claims that interfere with the issued or pending
claims of any of the Intellectual Property;
(w) neither the Company nor any
Material Subsidiary is engaged in any unfair labor practice; except
for matters which would not, individually or in the aggregate, have
a Material Adverse Effect, (i) there is (A) no unfair
labor practice complaint pending or, to the Company’s
knowledge, threatened against the Company or any Material
Subsidiary before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or threatened,
(B) no strike, labor dispute, slowdown or stoppage pending or,
to the Company’s knowledge, threatened against the Company or
any Material Subsidiary and (C) no union representation
dispute currently existing concerning the employees of the Company
or any Material Subsidiary, and (ii) to the Company’s
knowledge, (A) no union organizing activities are currently
taking place concerning the employees of the Company or any
Material Subsidiary and (B) there has been no violation of any
applicable law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any
provision of the Employee Retirement Income Security Act of 1974
(“ERISA”) or the rules and regulations promulgated
thereunder concerning the employees of the Company and its
subsidiaries;
(x) the Company and the Material
Subsidiaries are in compliance with, and hold all permits,
authorizations and approvals required under, Environmental Laws (as
defined below), except to the extent that failure to so comply or
to hold such permits, authorizations or
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approvals would not, individually or
in the aggregate, have a Material Adverse Effect; there are no
past, present or, to the Company’s knowledge, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company and its subsidiaries under, or to interfere with or prevent
compliance by the Company and its subsidiaries with, Environmental
Laws; except as would not, individually or in the aggregate, have a
Material Adverse Effect, the Company and each of its subsidiaries
(i) is not the subject of any investigation, (ii) has not
received any notice or claim, (iii) is not a party to or, to
its knowledge, affected by any pending or threatened action, suit
or proceeding, (iv) is not bound by any judgment, decree or
order or (v) has not entered into a
