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Exhibit
1.1
7,109,005
Units
CELL GENESYS,
INC.
PLACEMENT AGENCY
AGREEMENT
May 9, 2008
C REDIT S
UISSE S ECURITIES (USA)
LLC
Eleven Madison Avenue
New York, NY 10010-3629
C ANACCORD A
DAMS I NC .
99 High Street
Boston, MA 02110
C ANTOR F
ITZGERALD & C O
.
110 East 59
th
Street
New York, NY 10022
Ladies and Gentlemen:
1. Introductory. Cell
Genesys, Inc., a Delaware corporation (the “ Company
”), proposes, pursuant to the terms of this Placement Agency
Agreement (this “ Agreement ”) and the
Subscription Agreement in the form of Exhibit A attached
hereto (the “ Subscription Agreement ”) entered
into with the Purchaser identified therein (the “
Purchaser ”), to sell to the Purchaser an aggregate of
7,109,005 units (the “ Units ”) with each Unit
consisting of (i) one share (the “ Share ,”
collectively, the “ Shares ”) of common stock,
par value $0.001 per share (the “ Common Stock
”) of the Company and (ii) one warrant to purchase 1.2
shares of Common Stock (the “ Warrant ,”
collectively, the “ Warrants ”). The terms and
conditions of the Warrants are set forth in the form of Exhibit
B attached hereto. The Company hereby confirms its agreement
with Credit Suisse Securities (USA) LLC (“ Credit
Suisse ”) to act as lead placement agent and with
Canaccord Adams Inc. (“ Canaccord ”) and Cantor
Fitzgerald & Co. (“ Cantor ”) to act as
co-placement agents (Credit Suisse, Canaccord and Cantor, the
“ Placement Agents ”) in accordance with the
terms and conditions hereof as set forth below.
2. Agreement to Act as
Placement Agents; Placement of Units. On the basis of the
representations, warranties and agreements of the Company herein
contained, and subject to all the terms and conditions of this
Agreement:
(a) The Company engages the
Placement Agents to act as its exclusive agents, on a best efforts
basis, in connection with the issuance and sale by the Company of
the Units (the “ Offering ”). Until the Closing
Date (defined below), the Company shall not, without the prior
consent of Credit Suisse, solicit or accept offers to purchase
Units otherwise than through the Placement Agents.
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(b) Under no circumstances
will the Placement Agents be obligated to purchase any Units for
their own account and, in soliciting purchases of Units, the
Placement Agents shall act solely as the Company’s agents and
not as principals. Notwithstanding the foregoing and except as
otherwise provided in Section 2(c), it is understood and
agreed that the Placement Agents (or their affiliates) may, solely
at their discretion and without any obligation to do so, purchase
Units as principals to the extent any such purchase of Units is
properly disclosed in the General Disclosure Package in the manner
required by the Securities Laws.
(c) Subject to the provisions
of this Section 2, offers for the purchase of Units may be
solicited by the Placement Agents as agents for the Company at such
times and in such amounts as the Placement Agents deem advisable.
The Placement Agents shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Units received by it as
agents of the Company. The Company shall have the sole right to
accept offers to purchase the Units and may reject any such offer,
in whole or in part. The Placement Agents shall have the right, in
their discretion reasonably exercised, without notice to the
Company, to reject any offer to purchase Units received by it, in
whole or in part, and any such rejection shall not be deemed a
breach of their agreement contained herein.
(d) The purchases of the
Units by the Purchaser shall be evidenced by the execution of the
Subscription Agreement by each of the parties thereto.
(e) As compensation for
services rendered, on the Closing Date, the Company shall pay to
the Placement Agents by wire transfer of immediately available
funds to an account or accounts designated by the Placement Agents,
an aggregate amount equal to five percent (5%) of the gross
proceeds received by the Company from the sale of the Units on such
Closing Date (such aggregate amount to be divided among the
Placement Agents as they so agree).
(f) No Units which the
Company has agreed to sell pursuant to this Agreement shall be
deemed to have been purchased and paid for, or sold by the Company,
until such Units shall have been delivered to the Purchaser thereof
against payment by such Purchaser. If the Company shall default in
its obligations to deliver Units to the Purchaser once its offer
has been accepted, the Company shall indemnify and hold the
Placement Agents harmless against any loss, claim or damage arising
from or as a result of such default by the Company.
3. Delivery and
Payment . The Units shall be delivered against payment
therefor, in accordance with the terms and conditions of the
Subscription Agreement. The cost of original issue tax stamps and
other transfer taxes, if any, in connection with the issuance and
delivery of the Units by the Company to the Purchaser shall be
borne by the Company.
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4. Representations and
Warranties of the Company . The Company represents and warrants
to, and agrees with, the Placement Agents that:
(a) Filing and
Effectiveness of Registration Statement; Certain Defined Terms
. The Company has filed with the Commission a registration
statement on Form S-3 (No. 333-142482) and a registration
statement on Form S-3 dated May 1, 2007 filed pursuant to Rule
462(b) of the Act, including a related prospectus or prospectuses,
covering the registration of the Units under the Act, which
registration statement has become effective. “
Registration Statement ” at any particular time means
such registration statement in the form then filed with the
Commission, including any amendment thereto, any document
incorporated by reference therein and all 430B Information or
all 430C Information with respect to such registration statement,
that in any case has not been superseded or modified. “
Registration Statement ” without reference to a time
means the Registration Statement as of the Effective Date. For
purposes of this definition, 430B Information shall be
considered to be included in the Registration Statement as of the
time specified in Rule 430B.
For purposes of this
Agreement:
“
430B Information ” means information included in
a prospectus then deemed to be a part of the Registration Statement
pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to
Rule 430B(f).
“ 430C
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430C.
“ Act ”
means the Securities Act of 1933, as amended.
“Applicable
Time” means 5:00 a.m. (Eastern time) on the date of this
Agreement.
“ Closing
Date” has the meaning defined in Section 3
hereof.
“ Commission
” means the Securities and Exchange Commission.
“ Effective Date
” of the Registration Statement relating to the Units means
the earlier of (a) first use of the Final Prospectus and
(b) the time of the first contract of sale for the
Units.
“ Exchange Act
” means the Securities Exchange Act of 1934.
“ Final
Prospectus ” means the Statutory Prospectus that
discloses the public offering price, other 430B Information
and other final terms of the Units and otherwise satisfies
Section 10(a) of the Act.
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“General Use Issuer
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule A to
this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Units in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Limited Use Issuer
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Rules and
Regulations ” means the rules and regulations of the
Commission.
“ Securities
Laws ” means, collectively, the Sarbanes-Oxley Act of
2002 (“ Sarbanes-Oxley ”), the Act, the Exchange
Act, the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of
“issuers” (as defined in Sarbanes-Oxley) promulgated or
approved by the Public Company Accounting Oversight Board and, as
applicable, the rules of the New York Stock Exchange and The NASDAQ
Stock Market (“ Exchange Rules ”).
“Statutory
Prospectus” with reference to any particular time means
the prospectus relating to the Units that is included in the
Registration Statement immediately prior to that time, including
any document incorporated by reference therein and all
430B Information and all 430C Information with respect to
the Registration Statement. For purposes of the foregoing
definition, 430B Information shall be considered to be
included in the Statutory Prospectus only as of the actual time
that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not
retroactively.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) Compliance with
Securities Act Requirements . (i) (A) At the time the
Registration Statement initially became effective, (B) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) on
the Effective Date relating to the Units and (D) on the
Closing Date, the Registration Statement conformed and will conform
in all material respects to the requirements of the Act and the
Rules and Regulations and did not and will not include 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 and (ii) (A) on its date, (B) at
the time of filing the Final Prospectus pursuant to
Rule 424(b) and (C) on the Closing Date, the Final
Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, and will not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from any such document based upon
written information furnished to the Company by the Placement
Agents, if any, specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 8(b) hereof.
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(c) Shelf Registration
Statement . The date of this Agreement is not more than three
years subsequent to the initial effective date of the Registration
Statement. If, immediately prior to the third anniversary of the
initial effective date of the Registration Statement, any of the
Units remain unsold by the Placement Agents, the Company will prior
to that third anniversary file, if it has not already done so, a
new shelf registration statement relating to the Units, in a form
satisfactory to the Placement Agents, will use its best efforts to
cause such registration statement to be declared effective within
180 days after that third anniversary, and will take all other
action necessary or appropriate to permit the public offering and
sale of the Units to continue as contemplated in the expired
registration statement relating to the Units. References herein to
the Registration Statement shall include such new shelf
registration statement.
(d) Ineligible Issuer
Status. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Units and (ii) at the date of this
Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, including (x) the
Company or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been
made the subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the
preceding three years not having been the subject of a bankruptcy
petition or insolvency or similar proceeding, not having had a
registration statement be the subject of a proceeding under
Section 8 of the Act and not being the subject of a proceeding
under Section 8A of the Act in connection with the offering of
the Units, all as described in Rule 405.
(e) General Disclosure
Package. As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time, the preliminary prospectus supplement,
dated May 9, 2008, together with the accompanying prospectus
(which is the most recent Statutory Prospectus distributed to
investors generally) and any other documents listed or disclosures
stated in Schedule A to this Agreement to be included in the
General Disclosure Package, all considered together (collectively,
the “General Disclosure Package” ), nor
(ii) any individual Limited Use Issuer Free Writing
Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any Statutory Prospectus
or any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by the
Placement Agents specifically for use therein, it being understood
and agreed that the only such information furnished by the
Placement Agents consists of the information described as such in
Section 8(b) hereof.
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(f) Issuer Free Writing
Prospectuses. 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 Units or until any earlier date
that the Company notified or notifies the Placement Agents as
described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration Statement.
If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information then contained in the
Registration Statement or as a result of which such Issuer Free
Writing Prospectus, if republished immediately following such event
or development, would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(i) the Company has promptly notified or will promptly notify
the Placement Agents and (ii) the Company has promptly amended
or will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission. The foregoing two sentences do not apply to statements
in or omissions from any Issuer Free Writing Prospectus in reliance
upon and in conformity with written information furnished to the
Company by the Placement Agents specifically for use therein, it
being understood and agreed that the only such information
furnished by the Placement Agents consists of the information
described as such in Section 8(b) hereof.
(g) Good Standing of the
Company. The Company has been duly incorporated and is existing
and in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the General Disclosure
Package; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
materially and adversely affect the Company or its businesses,
properties, business prospects, conditions (financial or other) or
results of operations, taken as a whole (such effect is referred to
herein as a “ Material Adverse Effect
”).
(h) Subsidiaries. The
Company has no subsidiary that is a “significant
subsidiary” of the Company within the meaning of Rule 1.01 of
Regulation S-X of the Rules and Regulations.
(i) Capital
Stock . The Shares to be issued and sold by the Company to the
Purchaser hereunder and under the Subscription Agreement and the
shares of Common Stock issuable upon exercise of the Warrants (the
“ Warrant Shares ”) and all other outstanding
shares of capital stock of the Company have been duly authorized;
all outstanding shares of capital stock of the Company are, and,
when the Shares of Common Stock have been delivered and paid for in
accordance with this Agreement and the Subscription Agreement on
the Closing Date and the Warrant Shares have been
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delivered and paid for in
accordance with the Warrants, such shares will have been validly
issued, fully paid and nonassessable, will conform to the
information in the General Disclosure Package and to the
description of such shares contained in the Final Prospectus; the
stockholders of the Company have no statutory or contractual
preemptive rights with respect to its Common Stock; none of the
outstanding shares of capital stock of the Company are or will have
been issued in violation of any statutory or contractual preemptive
rights of any security holder; and the authorized equity
capitalization of the Company is as set forth in the General
Disclosure Package.
(j) No Finder’s
Fee. Except as disclosed in the General Disclosure Package,
there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim
against the Company or the Placement Agents for a brokerage
commission, finder’s fee or other like payment.
(k) Financial
Statements. The financial statements and schedules included or
incorporated by reference in the Registration Statement and the
General Disclosure Package present fairly the financial condition
of the Company and its consolidated subsidiaries as of the
respective dates thereof and the results of operations and cash
flows of the Company and its consolidated subsidiaries for the
respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except as otherwise
disclosed in the General Disclosure Package. No other financial
statements or schedules of the Company are required by the Act, the
Exchange Act, or the Rules and Regulations to be included in the
Registration Statement or the General Disclosure Package.
Ernst & Young LLP (“ Accountants ”),
who have reported on such financial statements and schedules, are
independent accountants with respect to the Company as required by
the Act and the Rules and Regulations and Rule 3600T of the
Public Company Accounting Oversight Board (“ PCAOB
”). The summary and selected consolidated financial and
statistical data included in the Registration Statement present
fairly the information shown therein and have been compiled on a
basis consistent with the audited financial statements presented in
the Registration Statement.
(l) Absence of Changes
. Subsequent to the respective dates as of which information is
given in the Registration Statement and the General Disclosure
Package and prior to or on the Closing Date, except as set forth in
or contemplated by the Registration Statement and the General
Disclosure Package, (i) there has not been and will not have
been any change in the capitalization of the Company (other than in
connection with the grant or exercise of options to purchase the
Common Stock granted pursuant to the Company’s stock option
plans from the shares reserved therefor, the conversion of
convertible debt outstanding on the date hereof into shares of
Common Stock or the issuance of shares under the Company’s
existing employee stock purchase plan as described in the
Registration Statement), or any Material Adverse Effect arising for
any reason whatsoever, (ii) the Company has not incurred and
will not incur, except in the ordinary course of business as
described in the General Disclosure Package, any material
liabilities or obligations, direct or contingent, the Company has
not entered into
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and will not enter into,
except in the ordinary course of business as described in the
General Disclosure Package, any material transactions other than
pursuant to this Agreement and the transactions referred to herein
and (iii) the Company has not and will not have paid or
declared any dividends or other distributions of any kind on any
class of its capital stock.
(m) Not An Investment
Company . The Company is not, will not become as a result of
the transactions contemplated hereby, an “investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
(n) Litigation .
Except as disclosed in the General Disclosure Package, there are no
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or against any
of its officers in their capacity as such, before or by any federal
or state court, commission, regulatory body, administrative agency
or other governmental body, domestic or foreign, wherein an
unfavorable ruling, decision or finding would reasonably be
expected to have a Material Adverse Effect.
(o) Absence of
Existing Defaults and Conflicts . The Company is not
(i) in violation of any provision of its certificate of
incorporation or bylaws, (ii) in default in any respect, and
no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or by which it is bound or to which any of its property or
assets is subject, or (iii) in violation in any respect of any
statute, law, rule, regulation, ordinance, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its properties, as
applicable, except, with respect to clauses (ii) and (iii),
any violations or defaults which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse
Effect.
(p) Absence of Further
Requirements . No consent, approval, authorization or order of,
or any filing or declaration with, any court or governmental agency
or body is required for the consummation by the Company of the
transactions on its part contemplated herein, the Subscription
Agreement, or the Warrants, including the offering and sale of the
Units, except such as have been obtained under the Act or the Rules
and Regulations and such as may be required under state securities
or Blue Sky laws or the bylaws and rules of the Financial Industry
Regulatory Authority, Inc. (“ FINRA ”) in
connection with the offering of the Units.
(q) Exemption From FINRA
Filing . As of the date of this Agreement and the date of the
Registration Statement, the Company satisfies the eligibility
requirements in existence prior to October 21, 1992 for the
use of a registration statement on Form S-3 for the offering of the
Units.
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(r) Authorization; Absence
of Defaults and Conflicts Resulting from Transaction . The
Company has full corporate power and authority to enter into this
Agreement, the Subscription Agreement, and each of the Warrants.
Each of this Agreement, the Subscription Agreement, and the
Warrants has been duly authorized, executed and delivered by the
Company. The Subscription Agreement and the Warrants are valid and
binding agreements of the Company, enforceable against the Company
in accordance with their respective terms. The performance of each
of this Agreement, the Subscription Agreement, and each Warrant and
the consummation of the transactions contemplated hereby and
thereby, will not (i) result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the
Company pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or
conflict with or constitute a default under, or give any party a
right to terminate any of its obligations under, or result in the
acceleration of any obligation under, (A) the certificate of
incorporation or bylaws of the Company, or (B) any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument to which the
Company is a party or by which the Company or any of its properties
is bound or affected, except, in the case of clause (i)(B), any
lien, breach, violation, conflict, default or acceleration that,
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, or (ii) violate or conflict
with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body
applicable to the business or properties of the Company, except any
violation or conflict that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(s) Title to Property
. The Company has good and marketable title to all properties and
assets described in the General Disclosure Package as owned by it,
free and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the General Disclosure Package or
are not material to the business of the Company. The Company has
valid, subsisting and enforceable leases for the properties
described in the General Disclosure Package as leased by it. The
Company owns or leases all such properties as are necessary to its
operations as now conducted or as proposed to be conducted, except
where the failure to so own or lease would not reasonably be
expected to have a Material Adverse Effect.
(t) Off Balance Sheet
Interests and Contracts . There is no document, contract,
permit or instrument, affiliate transaction or off-balance sheet
transaction (including, without limitation, any “variable
interests” in “variable interest entities,” as
such terms are defined in Financial Accounting Standards Board
Interpretation No. 46) of a character required to be described
in the Registration Statement or the General Disclosure Package or
to be filed as an Exhibit to the Registration Statement that
is not described or filed as required. All such contracts described
in the immediately preceding sentence to which the Company is a
party have been duly authorized, executed and delivered by the
Company, constitute valid and binding agreements of the Company and
are enforceable against and by the Company in accordance with the
terms thereof.
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(u) Offering Material;
Stabilization . The Company has not distributed, and will not
distribute prior to the Closing Date, any offering material in
connection with the offering and sale of the Units other than any
preliminary prospectuses, any Permitted Free Writing Prospectus (as
defined in Section 6 below), the Final Prospectus, the
Registration Statement and other materials, if any, permitted by
the Act. Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action
designed, or that might reasonably be expected, to cause or result,
under the Act or otherwise, in, or that has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
(v) Registration
Rights . No holder of securities of the Company has rights to
the registration of any securities of the Company because of the
filing of the Registration Statement, which rights have not been
waived by the holder thereof as of the date hereof.
(w) Listing . The
Common Stock is registered under Section 12(g) of the Exchange
Act and the Shares and Warrant Shares have been approved for
listing on the NASDAQ Global Market, subject to notice of
issuance.
(x) Possession of
Intellectual Property . Except as disclosed in or specifically
contemplated by the General Disclosure Package, (i) the
Company owns or has adequate rights to use all trademarks, trade
names, domain names, patents, patent rights, copyrights,
technology, know-how (including trade secrets and other unpatented
or unpatentable proprietary or confidential information, systems or
procedures), service marks, trade dress rights, and other
intellectual property (collectively, “ Intellectual
Property ”) and has such other licenses, approvals and
governmental authorizations, in each case sufficient to conduct its
business as now conducted and as now proposed to be conducted as
set forth in the General Disclosure Package and the Prospectus, and
to the Company’s knowledge, none of the foregoing
Intellectual Property rights owned or licensed by the Company is
invalid or unenforceable, (ii) the Company has no knowledge of
any infringement by it of Intellectual Property rights of others,
where such infringement could reasonably be expected to have a
Material Adverse Effect, (iii) the Company is not aware of any
infringement, misappropriation or violation by others of, or
conflict by others with rights of the Company with respect to, any
Intellectual Property that could reasonably be expected to have a
Material Adverse Effect, (iv) t
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