QUESTCOR PHARMACEUTICALS,
INC.
11,400,000 Shares of Common
Stock, no par value per share
PLACEMENT AGENCY
AGREEMENT
BMO Capital
Markets Corp.
3 Times Square, 27 th Floor
New York, New York 10036
Questcor
Pharmaceuticals, Inc., a California corporation (the
“Company”), proposes to issue and sell
11,400,000 shares (the “Shares”) of common stock,
no par value per share (the “Common Stock”), to certain
investors (collectively, the “Investors”). The Company
desires to engage you as its placement agent (the “Placement
Agent”) in connection with such issuance and sale. The Shares
are more fully described in the Registration Statement (as
hereinafter defined).
The
Company hereby confirms as follows its agreements with the
Placement Agent.
1.
Agreement to Act as Placement Agent . On the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions of this
Agreement, the Placement Agent agrees to act as the Company’s
exclusive placement agent in connection with the issuance and sale,
on a best efforts basis, by the Company of the Shares to the
Investors. The Placement Agent agrees to use its commercially
reasonable efforts to solicit offers to purchase the Shares from
the Company on the terms and subject to the conditions set forth in
the Prospectus (as defined below). The Placement Agent has no
authority to bind the Company with respect to any prospective offer
to purchase Shares. The Placement Agent shall use commercially
reasonable efforts to assist the Company in obtaining performance
by each Purchaser whose offer to purchase Shares has been solicited
by the Placement Agent and accepted by the Company, but the
Placement Agent shall not, except as otherwise provided in this
Agreement, have any liability to the Company in the event any such
purchase is not consummated for any reason. The Company shall pay
to the Placement Agent 6% of the proceeds received by the Company
from the sale of the Shares as set forth on the cover page of the
Prospectus (as hereinafter defined).
2.
Concurrently with the execution and delivery of this Agreement, the
Company, the Placement Agent, and JPMorgan Chase Bank, N.A. as
escrow agent (the “Escrow Agent”), shall enter into an
Escrow Agreement substantially in the form of Exhibit A
attached hereto (the “Escrow Agreement”), pursuant to
which an escrow account will be established, at the Company’s
expense, for the benefit of the Investors (the “Escrow
Account”). Prior to the Closing Date (as hereinafter
defined), (i) each of the Investors will deposit an amount equal to
the price per Share as shown on the cover page of the Prospectus
(as hereinafter defined) multiplied by the number of Shares
purchased by it in the Escrow Account, and (ii) the Escrow
Agent will notify the Company and the Placement Agent in writing
whether the Investors have deposited in the Escrow Account funds in
the amount equal to the proceeds of the sale of all of the Shares
offered hereby (the “Requisite Funds”) into the Escrow
Account. At 10:00 a.m., New York City time, on December 13,
2006, or at such other time on such other date as may be agreed
upon by the Company and the Placement Agent but in no event prior
to the date on which the Escrow Agent shall have received all of
the Requisite Funds (such date is hereinafter referred to as the
“Closing Date”), the Escrow Agent will release the
Requisite Funds from the Escrow Account for collection by the
Company and the Placement Agent as provided in the Escrow Agreement
and the Company shall deliver the Shares to the Investors, which
delivery may be made through the facilities of the Depository Trust
Company. The closing (the “Closing”) shall take place
at the office of Stradling Yocca Carlson & Rauth, 660 Newport
Center Drive, Newport Beach, California 92660. All actions taken at
the Closing shall be deemed to have occurred
simultaneously.
3.
Representations and Warranties of the Company . The Company
represents and warrants and covenants to the Placement Agent
that:
(a) A
“shelf” registration statement on Form S-3 (File
No. 333-134879) with respect to the Common Stock of the
Company has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
“Act”), and the rules and regulations (the “Rules
and Regulations”) of the Securities and Exchange Commission
(the “Commission”) thereunder and has been filed with
the Commission. The Company and the transactions contemplated by
this Agreement meet the requirements and comply with the conditions
for the use of Form S-3. The Registration Statement meets the
requirements of Rule 415(a)(1)(x) under the Act and complies
in all materials respects with said rule. As used in this
Agreement:
(i) “Applicable
Time” means 8:45 p.m. (New York City time) on the date of
this Agreement;
(ii) “Effective
Date” means any date as of which any part of the Registration
Statement became, or is deemed to have become, effective under the
Act in accordance with the Rules and Regulations;
(iii) “Issuer
Free Writing Prospectus” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Shares, each as listed on Schedule 3 hereto;
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(iv) “Preliminary
Prospectus” means any preliminary prospectus relating to the
Shares included in the Registration Statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Shares;
(v) “Pricing
Disclosure Materials” means, as of the Applicable Time, the
most recent Preliminary Prospectus, together with each Issuer Free
Writing Prospectus filed or used by the Company on or before the
Applicable Time;
(vi) “Prospectus”
means the final prospectus relating to the Shares including any
prospectus supplement thereto relating to the Shares, as filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations; and
(vi) “Registration
Statement” means, collectively, the various parts of such
registration statement, each as amended as of the Effective Date
for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration
statement.
Any reference
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated or deemed to be
incorporated by reference therein pursuant to Form S-3 under the
Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be. Any reference herein to the terms
“amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), after the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of
the Prospectus, as the case may be, which is incorporated therein
by reference.
(b) The
Registration Statement has heretofore become effective under the
Act or, with respect to any registration statement to be filed to
register the offer and sale of Shares pursuant to Rule 462(b) under
the Act, will be filed with the Commission and become effective
under the Act no later than 10:00 p.m., New York City time, on
the date of determination of the public offering price for the
Shares; no stop order of the Commission preventing or suspending
the use of any Prospectus, or the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose
have been instituted or, to the Company’s knowledge, are
contemplated by the Commission.
(c) The
Company was not at the time of the initial filing of the
Registration Statement, has not been since the date of such filing,
and will not be on the applicable Closing Date, an
“ineligible issuer” (as defined in Rule 405 under
the Act). The Company has been since the time of initial filing of
the Registration Statement and continues to be eligible to use Form
S-3 for the offering of the Shares.
(d) The
Registration Statement, at the time it became effective, as of the
date hereof, and at the Closing Date conformed and will conform in
all material respects to the requirements of the Act and the Rules
and Regulations. The Preliminary Prospectus conformed, and the
Prospectus will conform, when filed with the Commission pursuant to
Rule 424(b) and on the Closing Date to the requirements of the Act
and the Rules and Regulations.
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The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated
will conform, when filed with the Commission, to the requirements
of the Exchange Act or the Act, as applicable, and the rules and
regulations of the Commission thereunder.
(e) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(f) The
Prospectus will not, as of its date and on the Closing Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that the Company makes no representation or
warranty with respect to any statement contained in the Prospectus
in reliance upon and in conformity with information concerning the
Placement Agent and furnished in writing by the Placement Agent to
the Company expressly for use in the Prospectus, as set forth in
Section 8(b).
(g) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(h) The
Pricing Disclosure Materials did not, as of the Applicable Time,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided , however ,
that the Company makes no representation or warranty with respect
to any statement contained in the Pricing Disclosure Materials in
reliance upon and in conformity with information concerning the
Placement Agent and furnished in writing by a Placement Agent to
the Company expressly for use in the Pricing Disclosure Materials,
as set forth in Section 8(b).
(i) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Materials as
of the Applicable Time, did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(j)
Each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Act and the Rules
and Regulations on the date of first use, and the Company has
complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Shares, did not, does not and will not include any
information
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that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein that has
not been superseded or modified. The Company has not made any offer
relating to the Shares that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Placement
Agents. The Company has retained in accordance with the Rules and
Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and
Regulations.
(k) The
Company is, and at the Closing Date will be, duly organized,
validly existing and in good standing under the laws of the State
of California. The Company has, and at the Closing Date will have,
full power and authority to conduct all the activities conducted by
it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the Registration Statement and
the Prospectus. The Company is, and at the Closing Date will be,
duly licensed or qualified to do business and in good standing as a
foreign organization in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned
or leased by it makes such licensing or qualification necessary,
except where the failure to be so qualified or in good standing or
have such power or authority would not, individually or in the
aggregate, have a material adverse effect or would not reasonably
be expected to have a material adverse effect on or affecting the
business, prospects, properties, management, consolidated financial
position, stockholders’ equity or results of operations of
the Company and its Subsidiaries (as defined below) taken as a
whole (a “Material Adverse Effect”). Complete and
correct copies of the articles or certificate of incorporation and
of the bylaws of the Company and all amendments thereto have been
delivered to the Placement Agent, and no changes therein will be
made subsequent to the date hereof and prior to the Closing
Date.
(l) The
Company’s only subsidiaries (each a “Subsidiary”
and collectively the “Subsidiaries”) are listed on
Schedule 1 to this Agreement. Each Subsidiary has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of formation. Each Subsidiary is
duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of
its business makes such qualification necessary, except for those
failures to be so qualified or in good standing which will not have
a Material Adverse Effect. All of the shares of issued capital
stock of each subsidiary of the Company have been duly authorized
and validly issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on transfer,
shareholders’ agreement, voting trust or other defect of
title whatsoever.
(m)
The issued and outstanding shares of capital stock of the Company
have been validly issued, are fully paid and nonassessable and,
other than as set forth in the Registration Statement, are not
subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and
outstanding capitalization as set forth in the Prospectus as of the
dates referred to therein. The descriptions of the securities of
the Company in the Registration Statement and the Prospectus are,
and at the Closing Date will be, complete and accurate in all
respects. Except as set forth in the Registration Statement
and
5
the Prospectus,
the Company does not have outstanding any options to purchase, or
any rights or warrants to subscribe for, or any securities or
obligations convertible into, or exchangeable for, or any contracts
or commitments to issue or sell, any shares of capital stock or
other securities.
(n) The
Company has full legal right, power and authority to enter into
this Agreement and the Escrow Agreement (together, the
“Transaction Documents”) and perform the transactions
contemplated hereby and thereby. The Transaction Documents have
been authorized and validly executed and delivered by the Company
and are legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their respective
terms, subject to the effect of applicable bankruptcy, insolvency
or similar laws affecting creditors’ rights generally and
equitable principles of general applicability, including the effect
of public policy on the enforceability of provisions relating to
indemnification or contribution.
(o) The
issuance and sale of the Shares have been duly authorized by the
Company, and the Shares, when issued and paid for in accordance
with this Agreement, will be duly and validly issued, fully paid
and nonassessable and will not be subject to preemptive or similar
rights. The holders of the Shares will not be subject to personal
liability by reason of being such holders. The Shares, when issued,
will conform in all material respects to the description thereof
included in the Prospectus.
(p) The
consolidated financial statements and the related notes included in
the Registration Statement and the Prospectus present fairly, in
all material respects, the financial condition of the Company and
its consolidated Subsidiaries as of the dates thereof and the
results of operations and cash flows at the dates and for the
periods covered thereby in conformity with generally accepted
accounting principles (“GAAP”). No other financial
statements or schedules of the Company, any Subsidiary or any other
entity are required by the Act or the Rules and Regulations to be
included in the Registration Statement or the Prospectus. All
disclosures contained in the Registration Statement, the Pricing
Disclosure Materials and the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the Rules and
Regulations) comply with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Act, to the extent
applicable. The Company and the Subsidiaries do not have any
material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations or any “variable
interest entities” within the meaning of Financial Accounting
Standards Board Interpretation No. 46), not disclosed in the
Registration Statement, the Pricing Disclosure Materials and the
Prospectus.
(q) Each
of Odenburg, Ullakko, Muranishi & Co. (the
“Accountants”), who have reported on such consolidated
financial statements and schedules for the year ended
December 31, 2005, and Ernst & Young LLP, who have
reported on such consolidated financial statements and schedules
for the year ended December 31, 2003 and December 31,
2004, is a registered independent public accountant with respect to
the Company as required by the Act and the Rules and Regulations
and by the rules of the Public Accounting Oversight Board. The
consolidated financial statements of the Company and the related
notes and schedules included in the Registration Statement and the
Prospectus have
6
been prepared
in conformity with the requirements of the Act and the Rules and
Regulations and present fairly the information shown
therein.
(r) There
is and has been no failure on the part of the Company, or to its
knowledge after due inquiry, and any of the Company’s
directors or officers, in their capacities as such, to comply with
any applicable provisions of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated therewith (the “Sarbanes
Oxley Act”). Each of the principal executive officer and the
principal financial officer of the Company (or each former
principal executive officer of the Company and each former
principal financial officer of the Company as applicable) has made
all certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act with respect to all reports, schedules, forms,
statements and other documents required to be filed by it with the
Commission. For purposes of the preceding sentence,
“principal executive officer” and “principal
financial officer” shall have the meanings given to such
terms in the Sarbanes-Oxley Act. The Company has taken all
necessary actions to ensure that it is in compliance with all
provisions of the Sarbanes-Oxley Act that are in effect and with
which the Company is required to comply.
(s) The
Company and its Subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-14 and 15d-14) for the
Company and designed such disclosure controls and procedures to
ensure that material information relating to the Company and its
Subsidiaries is made known to the certifying officers by others
within those entities, particularly during the period in which the
Company’s Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, is being prepared. The
Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures as of
the end of the period covered by the Form 10-Q for the quarter
ended September 30, 2006 (such date, the “Evaluation
Date”). The Company presented in its Form 10-Q for the
quarter ended September 30, 2006 the conclusions of the
certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the
Evaluation Date. Since the Evaluation Date, there have been no
significant changes in the Company’s internal controls (as
such term is defined in Item 307(b) of Regulation S-K under
the Exchange Act) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s
internal controls.
(t) Except
as set forth in or otherwise contemplated by the most recent
Preliminary Prospectus, since the date of the most recent
consolidated financial statements of the Company included or
incorporated by reference in the most recent Preliminary Prospectus
and prior to Closing, (i) there has not been and will not have
been any change in the capital stock of the Company (except for
changes in the number of outstanding shares of Common Stock of the
Company due to the issuance of shares upon the exercise
of
7
stock options
or the issuance of shares pursuant to the Company’s employee
stock purchase plan, in each case pursuant to such Company option
or stock purchase plans as in effect on the date hereof) or
long-term debt of the Company or any Subsidiary or any dividend or
distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, or any material
adverse change, or any development that would reasonably be
expected to result in a material adverse change, in or affecting
the business, prospects, properties, management, consolidated
financial position, stockholders’ equity, or results of
operations of the Company and its Subsidiaries taken as a whole (a
“Material Adverse Change”) and (ii) neither the
Company nor any Subsidiary has sustained or will sustain any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement and the Prospectus.
(u) Since
the date as of which information is given in the most recent
Preliminary Prospectus, neither the Company nor any Subsidiary has
entered, or will enter (other than with respect to transactions
that are consistent with the Company’s publicly announced
strategy and which are consistent with the “Use of
Proceeds” disclosure contained in the Prospectus), 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.
(v) Neither
the Company nor any of its subsidiaries own any real property. The
Company and each Subsidiary has good and valid title to all
personal property described in the Registration Statement or the
Prospectus as being owned by them that are material to the
businesses of the Company and its Subsidiaries taken as a whole, 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 reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect. Any real property described in the Registration Statement
or the Prospectus as being leased by the Company or any Subsidiary
that is material to the business of the Company and its
Subsidiaries taken as a whole is held by them under valid, existing
and enforceable leases, except those that (A) do not
materially interfere with the use made or proposed to be made of
such property by the Company and its Subsidiaries or (B) would
not be reasonably expected, individually or in the aggregate, to
have a Material Adverse Effect.
(w) The
Company is not, nor upon completion of the transactions
contemplated herein will it be, an “investment company”
or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment
company,” as such terms are defined in the Investment Company
Act of 1940, as amended (the “Investment Company
Act”).
(x) There
are no legal, governmental or regulatory actions, suits or
proceedings pending, nor, to the Company’s knowledge, any
legal, governmental or regulatory investigations, to which the
Company or any Subsidiary is a party or to which any property of
the Company or any Subsidiary is the subject that, individually or
in the aggregate, if
8
determined
adversely to the Company or any Subsidiary, would reasonably be
expected to have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its
obligations under the Transaction Documents; 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 there are no current or pending legal,
governmental or regulatory investigations, actions, suits or
proceedings that are required under the Act to be described in the
Prospectus that are not so described.
(y) The
Company and each Subsidiary has, and at the Closing Date will have,
(i) all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its
respective business as presently conducted except where the failure
to have such governmental licenses, permits, consents, orders,
approvals and other authorizations would not have a Material
Adverse Effect, (ii) complied with all laws, regulations and
orders applicable to either it or its business, except where the
failure to so comply would not have a Material Adverse Effect, and
(iii) performed all its obligations required to be performed,
and is not, and at the Closing Date will not be, in default, under
any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement, lease, contract or
other agreement or instrument (collectively, a “contract or
other agreement”) to which it is a party or by which its
property is bound or affected, except where such default would not
have a Material Adverse Effect, and, to the Company’s best
knowledge, no other party under any material contract or other
agreement to which it is a party is in default in any respect
thereunder. The Company and its Subsidiaries are not in violation
of any provision of their respective organizational or governing
documents.
(z) The
Company has all corporate power and authority to enter into this
Agreement, and to carry out the provisions and conditions hereof
and thereof, and all consents, authorizations, approvals and orders
required in connection herewith and therewith have been obtained,
except such as have been obtained, such as may be required under
state securities or Blue Sky Laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the
“NASD”) or the American Stock Exchange in connection
with the distribution of the Shares by the Placement
Agent.
(aa)
Neither the execution of this Agreement, nor the issuance, offering
or sale of the Shares, nor the consummation of any of the
transactions contemplated herein, nor the compliance by the Company
with the terms and provisions hereof or thereof will conflict with,
or will result in a breach of, any of the terms and provisions of,
or has constituted or will constitute a default under, or has
resulted in or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to the terms of any contract or
other agreement to which the Company or its Subsidiaries may be
bound or to which any of the property or assets of the Company or
its Subsidiaries is subject, except such conflicts, breaches or
defaults as may have been waived; nor will such action result in
any violation of the provisions of the organizational or governing
documents of the Company or any Subsidiary, or any statute or any
order, rule or regulation applicable to the Company or any
Subsidiary or of any court or of any federal, state or other
regulatory authority or other government body having jurisdiction
over the Company or any Subsidiary.
9
(bb) There
is no document or contract of a character required to be described
in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or
filed as required. All such contracts to which the Company is a
party have been authorized, executed and delivered by the Company,
constitute valid and binding agreements of the Company, and are
enforceable against the Company in accordance with the terms
thereof, subject to the effect of applicable bankruptcy, insolvency
or similar laws affecting creditors’ rights generally and
equitable principles of general applicability, including the effect
of public policy on the enforceability of provisions relating to
indemnification or contribution.
(cc) No
statement, representation or warranty made by the Company in this
Agreement or made in any certificate or document required by this
Agreement to be delivered to the Placement Agent or the Investors
was or will be, when made, inaccurate, untrue or incorrect in any
material respect.
(dd) The
Company and its directors, officers or controlling persons have not
taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Common Stock.
(ee) No
holder of securities of the Company has rights to the registration
of any securities of the Company as a result of the filing of the
Registration Statement or the transactions contemplated by this
Agreement, except for such rights as have been waived or
satisfied.
(ff) The
Common Stock is currently listed on the American Stock Exchange.
The Company has not, in the 12 months preceding the date
hereof, received notice from the American Stock Exchange to the
effect that the Company is not in compliance with the listing or
maintenance requirements. The Company is, and has no reason to
believe that it will not in the foreseeable future continue to be,
in compliance with all such listing and maintenance
requirements.
(gg) The
Company is not involved in any material labor dispute nor is any
such dispute known by the Company to be threatened.
(hh) The
business and operations of the Company and each of its Subsidiaries
have been and are being conducted in compliance with all applicable
laws, ordinances, rules, regulations, licenses, permits, approvals,
plans, authorizations or requirements relating to occupational
safety and health, or pollution, or protection of health or the
environment (including, without limitation, those relating to
emissions, discharges, releases or threatened releases of
pollutants, contaminants or hazardous or toxic substances,
materials or wastes into ambient air, surface water, groundwater or
land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
chemical substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes, whether solid, gaseous or liquid
in nature) of any governmental department, commission, board,
bureau, agency or instrumentality of the United States, any state
or political subdivision
10
thereof, or any
foreign jurisdiction, and all applicable judicial or administrative
agency or regulatory decrees, awards, judgments and orders relating
thereto, except where the failure to be in such compliance will
not, individually or in the aggregate, have a Material Adverse
Effect; and neither the Company nor any of its Subsidiaries has
received any notice from any governmental instrumentality or any
third party alleging any material violation thereof or liability
thereunder (including, without limitation, liability for
cos
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