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Exhibit 1.1
August 8,
2007
Robert W. Baird &
Co. Incorporated
as Lead Placement
Agent
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
A.G. Edwards & Sons,
Inc.
as Co-Placement
Agent
One North Jefferson Avenue
St. Louis, Missouri 63103
Ladies and Gentlemen:
FARO Technologies, Inc., a
Florida corporation (the “ Company ”), proposes
to issue and sell to certain investors (collectively, the “
Investors ”) up to an aggregate of 1,650,000 shares
(the “ Shares ”) of Common Stock, par value
$0.001 per share (the “ Common Stock ”), of the
Company. The Company desires to engage Robert W. Baird &
Co. Incorporated ( “Baird” or the “
Lead Placement Agent ”) and A.G. Edwards &
Sons, Inc. (“ AGE ”) as its exclusive lead
placement agent and co-placement agent, respectively (the “
Placement Agents ” and each, a “ Placement
Agent ”), in connection with such issuance and sale. The
Shares are described in the Prospectus that is referred to
below.
The Company has prepared and
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 ”),
Post-Effective Amendment No.1 to a registration statement under the
Act on Form S-3 (File No. 333-121919) (as so amended, the
“ registration statement ”). The registration
statement has been declared by the Commission to be effective under
the Act. The Company will next file with the Commission pursuant to
Rule 424(b) under the Act a final prospectus supplement to the Base
Prospectus (as defined below), describing the Shares and the
offering thereof, in such form as has been provided to or discussed
with, and reasonably approved by, the Placement Agents.
The term “
Registration Statement ” as used in this Agreement
means the registration statement, at the time it became effective
and as supplemented or amended prior to the Execution Time (as
defined below), including (i) all financial statements,
exhibits and schedules thereto and (ii) all documents
incorporated by reference or deemed to be incorporated by reference
therein. The term “ Base Prospectus ” as used in
this Agreement means the base prospectus dated as of July 17,
2007 that is part of the registration statement for use in
connection with the offer and/or sale of the Shares pursuant to
this Agreement. The term “ Prospectus Supplement
” as used in this Agreement means the final prospectus
supplement dated as of August 8, 2007 specifically relating to the
Shares and which will be filed with the Commission pursuant to Rule
424(b) under the Act after the date and time that this Agreement is
executed and delivered by the parties
hereto (the “ Execution
Time ”). The term “ Prospectus ” as
used in this Agreement means the Base Prospectus together with the
Prospectus Supplement. Any reference herein to the registration
statement, the Registration Statement, the Base Prospectus, any
Prospectus Supplement or the Prospectus shall be deemed to refer to
and include (i) the documents incorporated by reference
therein as of the date of the Prospectus pursuant to Item 12
of Form S-3 under the Act (the “ Incorporated
Documents ”) and (ii) the copy of the Registration
Statement, the Base Prospectus, the Prospectus Supplement, the
Prospectus or the incorporated documents filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“ EDGAR ”). Any reference herein to the
terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, the Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the “
Exchange Act ”) after the effective date of the
Registration Statement, or the date of the Prospectus, as the case
may be, deemed to be incorporated therein by reference. As used
herein, “ business day ” shall mean a day on
which the NASDAQ Global Market (the “ NASDAQ ”)
is open for trading.
The term “
Disclosure Package ” shall mean (i) the
Prospectus as of the Execution Time, (ii) the issuer free
writing prospectuses as defined in Rule 433 of the Act (each, an
“ Issuer Free Writing Prospectus ”), if any,
identified in Exhibit A hereto, (iii) any other free
writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package, and (iv) the information set forth on Schedule
A hereto.
The Company hereby confirms
its agreement with the Placement Agents as follows:
Section 1 . Agreement
to Act as Placement Agents . Upon the basis of the
representations and warranties of the Company and the Placement
Agents set forth in this Agreement and subject to the terms and
conditions set forth in this Agreement, the Company engages the
Placement Agents, and the Placement Agents agree, to act as the
Company’s exclusive placement agents, on a best efforts
basis, in connection with the offer and sale by the Company of the
Shares to the Investors. As compensation for services rendered, at
the time of purchase (as defined below) the Company shall pay to
the Placement Agents, by Federal Funds wire transfer to an account
or accounts designated by the Placement Agents, an amount equal to
the following percentages of the gross proceeds received by the
Company in respect of the sale of the Shares: (1) to Baird,
4.0% of any and all such gross proceeds; and (2) to AGE, 1.0%
of such gross proceeds. The Shares are being sold at a price of
$34.00 per Share. The Placement Agents may retain other brokers or
dealers to act as subagents on their behalf in connection with the
offering and sale of the Shares; provided that the Company
will only be obligated to pay the Placement Agents for services
rendered hereunder.
This Agreement shall not give
rise to any commitment by the Placement Agents or any of their
affiliates to underwrite or purchase any of the Shares, and the
Placement Agents shall have no authority to bind the Company in
respect of the sale of any Shares. The sale of the Shares shall be
made pursuant to a purchase agreement in the form included as
Exhibit B hereto (the “ Purchase Agreement
”). The Placement Agents shall communicate to the Company
each
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reasonable offer or indication of
interest received by them to purchase Shares. The Company shall
have the sole right to accept offers to purchase the Shares and may
reject any such offer in whole or in part.
Section 2 . Payment
and Delivery. Subject to the terms and conditions hereof,
payment of the purchase price for, and delivery of certificates
for, the Shares shall be made at the offices of Holland &
Knight LLP in Tampa, Florida (or at such other place as shall be
agreed upon by the Placement Agents and the Company), at 10:00
A.M., Eastern time, on August 14, 2007 (unless another time shall
be agreed to by the Placement Agents and the Company). Subject to
the terms and conditions hereof, payment of the purchase price for
the Shares shall be made to the Company by Federal Funds wire
transfer, against delivery of the Shares, through the facilities of
The Depository Trust Company (“ DTC ”), to such
persons, and shall be registered in such name or names and shall be
in such denominations as the Placement Agents may request at least
one business day before the time of purchase. Payment of the
purchase price for the Shares shall be made at the time of purchase
by the Investors directly to the Company. The time at which such
payment and delivery are to be made is hereinafter sometimes called
the “ time of purchase .” Electronic transfer of
the Shares shall be made at the time of purchase in such names and
in such denominations as the Placement Agents shall
specify.
Section 3 .
Representations and Warranties of the Placement Agents . Each
of the Placement Agents represents and warrants to and agrees with
the Company that (i) it has not distributed and will not
distribute, prior to the time of purchase, any “issuer free
writing prospectus” as defined in Rule 433 of the Act other
than the Issuer Free Writing Prospectuses listed on Exhibit
A , (ii) it is registered as a broker-dealer under the
Exchange Act and licensed and otherwise qualified to do business as
a broker-dealer in all states in which Shares will be offered
pursuant to the Agreement, (iii) assuming compliance by the
Company with all relevant provisions of the Act in connection with
the Prospectus, it will conduct all offers and sales of the Shares
in compliance with relevant provisions of the Act and various state
securities laws and regulations, and (iv) it will only act as
agents of the Company in those jurisdictions in which it is,
expressly or impliedly, authorized to do so.
Section 4 .
Representations and Warranties of the Company . The Company
represents and warrants to and agrees with the Placement Agents
that:
(a) the Registration
Statement has been declared effective under the Act; the Company
has complied to the Commission’s satisfaction with all
requests of the Commission for additional or supplemental
information with respect to the Registration Statement; no stop
order of the Commission preventing or suspending the use of the
Base Prospectus, the Prospectus Supplement or the Prospectus or the
effectiveness of the Registration Statement has been issued or is
in effect, and no proceedings for such purpose have been instituted
or are pending or, to the Company’s knowledge, are
contemplated or threatened by the Commission; the Company is
eligible to use Form S-3 and was eligible to use Form S-3 on the
date that Post-Effective Amendment No. 1 to the Registration
Statement was filed; and such Registration Statement at the date of
this Agreement meets, and the offering of the Shares complies with,
the requirements of Rule 415 under the Act. The Registration
Statement complied when it became effective,
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complies and will comply, at the time of
purchase, and the Base Prospectus, the Prospectus Supplement and
the Prospectus complied as of their respective dates, comply and
will comply at the time of purchase in all material respects with
the requirements of the Act (including said Rule 415); the
conditions to the use of Form S-3 have been satisfied; and the
Registration Statement did not at the time of effectiveness, does
not and will not at the time of purchase 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, and the Base Prospectus, the Prospectus
Supplement and the Prospectus did not as of their respective dates,
do not and will not at the time of purchase 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; and the documents incorporated by reference
in the Base Prospectus, the Prospectus Supplement, the Registration
Statement and the Prospectus, at the time they became effective or
were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and 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 the light of the circumstances under which
they were made, not misleading; provided that the
representations and warranties set forth in this paragraph do not
apply to statements or omissions in the Registration Statement, the
Base Prospectus, the Prospectus Supplement or the Prospectus in
reliance upon and in conformity with information relating to the
Placement Agents furnished to the Company in writing by the
Placement Agents expressly for use therein;
(b) the Disclosure Package
does not and at the time of purchase will not contain 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;
provided that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the
Disclosure Package in reliance upon and in conformity with
information relating to the Placement Agents furnished to the
Company in writing by the Placement Agents expressly for use
therein;
(c) each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the time of purchase, did not, does not and will not
contain any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement. If at
any time following issuance of an Issuer Free Writing Prospectus
and prior to the time of purchase 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
contained in the Registration Statement, the Company has promptly
notified or will promptly notify the Placement Agents and has
promptly amended or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict;
(d) as of the Execution Time
(with such date being used as the determination date for purposes
of this clause), the Company is not an Ineligible Issuer (as
defined in Rule 405 of the Act);
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(e) the Company has received
no written comments from the Commission staff regarding its
periodic or current reports under the Exchange Act that remain
unresolved and have not been addressed in the Registration
Statement, Disclosure Package and Prospectus; and all written
comments since January 1, 2007 from the Commission staff to
the Company’s periodic and current reports under the Exchange
Act have been disclosed by the Company to the Placement
Agents;
(f) the Company has not
distributed and will not distribute, prior to the time of purchase,
any offering material in connection with the offering and sale of
the Shares other than the Prospectus, any Issuer Free Writing
Prospectus reviewed and consented to by the Placement Agents (which
consent shall not be unreasonably withheld) or listed in Exhibit
A hereto or the Registration Statement;
(g) the statements included
or incorporated by reference into the Disclosure Package and the
Prospectus under the headings “Intellectual Property,”
“Government Regulation”, “Legal
Proceedings” and “Risk Factors”, insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or
proceedings;
(h) as of the date of this
Agreement, the Company has an authorized and outstanding
capitalization as set forth or incorporated by reference in each of
the Disclosure Package and the Prospectus and, as of the time of
purchase, the Company shall have an authorized and outstanding
capitalization as set forth in each of the Disclosure Package and
the Prospectus (subject, in each case, to the issuance of shares of
Common Stock upon conversion of existing convertible securities,
exercise of existing stock options and warrants disclosed as
outstanding in each of the Disclosure Package and the Prospectus
and grant of options under existing stock option plans described in
each of the Disclosure Package and the Prospectus); all of the
issued and outstanding shares of capital stock, including the
Common Stock, of the Company have been duly authorized and validly
issued and are fully paid and non-assessable, have been issued in
compliance 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;
(i) the Company has been duly
incorporated and is validly existing as a corporation with active
status under the laws of the jurisdiction of its incorporation,
with the requisite corporate power and authority to own, lease and
operate its properties and conduct its business as described or
incorporated by reference in each of the Disclosure Package and the
Prospectus, and to execute, deliver and perform its obligations
under this Agreement and under the Purchase Agreement;
(j) each of the Company and
its Subsidiaries (as hereinafter defined) is duly qualified to do
business as a foreign corporation and is in good standing or with
active status 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 and in
good standing would not, individually or in the aggregate, have or
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or in the earnings, business,
properties, liabilities, or operations of the Company and its
Subsidiaries taken as a whole (a “ Material Adverse
Effect ”);
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(k) each subsidiary of the
Company (collectively, the “ Subsidiaries ”) has
been duly organized and is validly existing and in good standing or
with active status under the laws of its jurisdiction of
organization, with the requisite power and authority to own, lease
and operate its properties and conduct its business as described or
incorporated by reference in each of the Disclosure Package and the
Prospectus; all of the issued and outstanding capital stock or
other equity interests of each Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims; complete and
correct copies of the articles of incorporation and the bylaws, or
corresponding organizational documents, as the case may be, of each
of the Company and its Subsidiaries and all amendments thereto have
been made available to the Placement Agents, and no changes therein
will be made subsequent to the date hereof and prior to the time of
purchase; the minute books of each of the Company and its
Subsidiaries have been made available to the Placement Agents and
contain a complete summary of all meetings and other actions of the
directors and shareholders of each such entity in all material
respects, and reflect all transactions referred to in such minutes
accurately in all material respects;
(l) the Shares have been duly
authorized and, when issued, delivered and paid for in accordance
with the terms of this Agreement and the Purchase Agreement, will
be validly issued, fully paid and non-assessable and will not be
sold to the Investors in violation of statutory or contractual
preemptive rights, resale rights, rights of first refusal or
similar rights;
(m) there are no transfer
taxes or other similar fees or charges under federal law or the
laws of any state, or any political subdivision thereof, required
to be paid in connection with the execution and delivery of this
Agreement or the issuance or sale by the Company of the
Shares;
(n) the capital stock of the
Company, including the Shares, conforms in all material respects to
the description thereof contained in each of the Disclosure Package
and the Prospectus;
(o) this Agreement has been
duly authorized, executed and delivered by the Company;
(p) neither the Company nor
its Subsidiaries is (i) in breach or violation of or in
default (or, with the giving of notice or lapse of time, would be
in default) (“ Default ”) under its charter or
by-laws or other organizational documents, (ii) in Default
under any indenture, mortgage, loan or credit agreement, deed of
trust, note, contract, franchise, lease or other agreement,
obligation, condition, covenant or instrument to which it is a
party or by which it may be bound or to which any of its property
or assets is subject (each, an “ Existing Instrument
”), or (iii) in violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over it or any of its properties, as
applicable, except with respect to clauses (ii) and
(iii) only, for such Defaults and violations as would not,
individually or in the aggregate, have a Material Adverse Effect.
The Company’s execution, delivery and performance of this
Agreement and
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consummation of the transactions
contemplated hereby, by the Disclosure Package and by the
Prospectus (i) have been duly authorized by all necessary
corporate action and will not result in any breach or violation of,
or Default under, the charter or by-laws or other organizational
documents of the Company or any Subsidiary, (ii) will not
conflict with or constitute a breach of, or Default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, or require the consent of any other party
to, any Existing Instrument, and (iii) will not result in any
violation of any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any Subsidiary of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any Subsidiary or any of its or their properties, except with
respect to clauses (ii) and (iii) only, for such
conflicts, breaches, Defaults or violations as would not,
individually or in the aggregate, have a Material Adverse
Effect;
(q) no approval,
authorization, consent or order of or filing with any federal,
state, local or foreign governmental or regulatory commission,
board, body, authority or agency or of or with the NASDAQ, or
approval of the shareholders of the Company, is required in
connection with the sale by the Company of the Shares or the
consummation by the Company of the transactions contemplated hereby
other than registration under the Act of the offer and sale of the
Shares, which has been effected, and any necessary qualification
under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered under the terms of this
Agreement or under the rules and regulations of the National
Association of Securities Dealers, Inc. (the “ NASD
”);
(r) except as set forth in
the Disclosure Package and the Prospectus, (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 warrants, options, 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 securities of the Company, and (iii) except as provided
herein, no person has the right to act as an underwriter, placement
agent or financial advisor to the Company or is entitled to receive
from the Company any brokerage or finder’s fee or other fee
or commission in connection with the offer and sale 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 except, in each case, for such rights as
have been duly and validly satisfied or waived; except as disclosed
in each of the Disclosure Package and the Prospectus, 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 securities of 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 other than such
rights as have been duly and validly satisfied or
waived;
(s) each of the Company and
its Subsidiaries has all licenses, authorizations, consents and
approvals and has made all filings required under any federal,
state, local or foreign law, regulation or rule, and has obtained
all authorizations, consents and approvals from other
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persons, necessary in order to conduct
its business as described in each of the Disclosure Package and the
Prospectus, except for such licenses, authorizations, consents,
approvals and filings, the failure of which to have, maintain or
make would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of its Subsidiaries is
in violation of, or in default under, or has 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 Subsidiaries, except
where such violation, default, revocation or modification would
not, individually or in the aggregate, have a Material Adverse
Effect;
(t) except as disclosed in
each of the Disclosure Package and the Prospectus, there are no
legal or governmental actions, suits, claims, investigations or
proceedings pending or, to the Company’s knowledge,
threatened to which the Company or any of its Subsidiaries or any
of their directors or officers is or would be a party or of which
any of their respective properties is or would be subject at law or
in equity, before or by any federal, state, local or foreign
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 adversely affect the consummation of the transactions
contemplated hereby;
(u) no labor problem or
dispute with the employees of the Company or any of its
Subsidiaries exists or is threatened or imminent, and the Company
is not aware of any existing or imminent labor disturbance by the
employees of any of its or any of its Subsidiaries’ principal
suppliers, contractors or customers, that could have a Material
Adverse Effect;
(v) Grant Thornton LLP, whose
reports on the consolidated financial statements of the Company and
its Subsidiaries are filed with the Commission as part of the
Registration Statement and the Prospectus, is an independent
registered public accounting firm as required by the Act and the
Exchange Act and the applicable published rules and regulations
thereunder;
(w) the financial statements
included or incorporated by reference in the Registration Statement
and included or incorporated by reference in the Disclosure Package
and the Prospectus, together with the related notes and schedules,
present fairly in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows
of the Company and its Subsidiaries for the periods specified,
comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved, except
(i) as may be otherwise specified in such financial statements
or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be
condensed or summary statements as permitted under the Act; the
other financial data of the Company and its Subsidiaries set forth
in the Registration Statement, the Disclosure Package and the
Prospectus fairly present the information set forth therein and are
prepared on a basis consistent with the financial statements and
books and records of the Company and its Subsidiaries; the
financial data set forth or incorporated by reference in the
Prospectus under the caption “Selected
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Financial Data ” fairly
present the information set forth therein on a basis consistent
with that of the audited financial statements contained in the
Registration Statement. The Company’s ratio of earnings to
fixed charges set forth in the Prospectus under the caption “
Ratio of Earnings to Fixed Charges ” and in Exhibit
12.1 to the Registration Statement has been calculated in
compliance with Item 503(d) of Regulation S-K under the
Act;
(x) subsequent to the
respective dates as of which information is given or incorporated
by reference in the Disclosure Package, there has not been
(i) any material adverse change, or any development that would
reasonably be expected to result in a prospective material adverse
change, in the condition, financial or otherwise, or in the
earnings, business, properties, liabilities or operations of the
Company and its Subsidiaries taken as a whole (a “
Material Adverse Change ”), (ii) any transaction
which is material to the Company and its Subsidiaries,
(iii) any obligation, direct or contingent (including any
off-balance sheet obligations), incurred by the Company or any of
its Subsidiaries, which is material to the Company and its
Subsidiaries, (iv) any change in the capital stock of the
Company or any Subsidiary, or (v) any dividend or distribution
of any kind declared, paid or made on the capital stock of the
Company;
(y) the Company has been
advised of the rules and requirements under the Investment Company
Act of 1940, as amended (the “ Investment Company Act
”). The Company is not, and after receipt of payment for the
Shares and the application of the proceeds thereof as contemplated
under the caption “ Use of Proceeds ” in the
Prospectus will not be, an “ investment company
” within the meaning of the Investment Company Act and will
conduct its business in a manner so that it will not become subject
to the Investment Company Act;
(z) except as described in
each of the Disclosure Package and the Prospectus, the Company and
its Subsidiaries have good and marketable title to all property
(real and personal) described in the Disclosure Package and the
Prospectus as being owned by each of them, free and clear of all
liens, claims, security interests or other encumbrances, or subject
only to liens, claims, security interests or other encumbrances
that do not individually or in the aggregate materially affect the
value of such properties taken as a whole or materially interfere
with the use made of such properties taken as a whole by the
Company and its Subsidiaries; all the property described in the
Disclosure Package and the Prospectus as being held under lease by
the Company and its Subsidiaries is held thereby under valid,
subsisting and enforceable leases except as would not reasonably be
expected to result in a Material Adverse Effect;
(aa) except as described in
the Disclosure Package and the Prospectus, 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 and service marks (both registered and
unregistered), trade names, copyrights, trade secrets, technology,
know-how and other intellectual property (collectively, “
Intellectual Property ”) used in or necessary for the
conduct of the business of the Company and its Subsidiaries as
described in the Disclosure Package and the Prospectus, except for
such Intellectual Property which the failure to own or obtain a
license or other right to use would not result, individually or in
the aggregate, in a Material Adverse Effect; to the Company’s
knowledge, there is no pending or threatened action, suit,
proceeding or claim by others that the Company or any Subsidiary
infringes any Intellectual Property rights
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of others, and the Company is unaware of
any facts which would form a reasonable basis for any such claim;
to the Company’s knowledge, the conduct of its current
business as described in the Disclosure Package and the Prospectus
does not infringe any issued patents or registered trademarks and
neither the Company nor any of its Subsidiaries has knowingly
misappropriated any trade secrets, of others; to the
Company’s knowledge, none of the technology used by the
Company or any Subsidiary as described in the Disclosure Package or
the Prospectus has been obtained or is being used by the Company or
any Subsidiary in violation of any contractual obligation binding
on the Company or any Subsidiary or, to the Company’s
knowledge, upon any of its officers, directors or employees; to the
Company’s knowledge, there are no third parties who have an
ownership interest in the patents or patent applications owned by
the Company or any Subsidiary or the right to use any patents or
patent applications exclusively licensed to the Company or any
Subsidiary (“ Exclusive Intellectual Property
”); there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or written claim by others
challenging the Company’s or any Subsidiary’s ownership
or rights as applicable in or to any Exclusive Intellectual
Property; and 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 Exclusive Intellectual
Property; the Company and its Subsidiaries have taken reasonable
security measures (and in no event less than customary in its
industry) to protect the secrecy, confidentiality and value of all
of their Intellectual Property;
(bb) the Company and its
Subsidiaries are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ ERISA
”); no “ reportable event ” (as defined in
ERISA) has occurred with respect to any “ pension plan
” (as defined in ERISA) for which the Company and its
Subsidiaries would have any material liability; the Company and its
Subsidiaries have not incurred and do not expect to incur material
liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”
or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which the Company or any of its
Subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in
all material respects, and nothing has occurred, whether by action
or by failure to act, that would cause the loss of such
qualification;
(cc) except as otherwise
disclosed in the Disclosure Package and the Prospectus,
(i) neither the Company nor any of its Subsidiaries is in
violation of any federal, state, local or foreign law, regulation,
order, permit or other requirement relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including without limitation,
laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum and petroleum
products (collectively, “ Materials of Environmental
Concern ”), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environment Concern
(collectively, “ Environmental Laws ”), which
violation includes, but is not limited to, noncompliance with any
permits or other governmental
10
authorizations required for the
operation of the business of the Company or any of its Subsidiaries
under applicable Environmental Laws, or noncompliance with the
terms and conditions thereof, nor has the Company or any of its
Subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that
alleges that the Company or the Subsidiary is in violation of any
Environmental Law, except, in each of the foregoing instances
listed in this subsection (i), as would not, individually or in the
aggregate, have a Material Adverse Effect; (ii) there is no
claim, action or cause of action filed with a court or governmental
authority to which the Company or any of its Subsidiaries has
received written notice, no investigation with respect to which the
Company or any of its Subsidiaries has received written notice, and
no written notice to the Company or any of its Subsidiaries by any
person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries,
attorneys’ fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased
or operated by the Company or any of its Subsidiaries, now or in
the past (collectively, “ Environmental Claims
”), pending or, to the Company’s knowledge, threatened
against the Company or any of its Subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or
any of its Subsidiaries has retained or assumed either
contractually or by operation of law, except as would not,
individually or in the aggregate, have a Material Adverse Effect;
(iii) to the Company’s knowledge, there are no past,
present or anticipated future actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
release, emission, discharge, presence or disposal of any Material
of Environmental Concern, that reasonably could result in a
violation of any Environmental Law, require expenditures to be
incurred pursuant to Environmental Law, or form the basis of a
potential Environmental Claim against the Company or any of its
Subsidiaries or against any person or entity whose liability for
any Environmental Claim the Company or any of its Subsidiaries has
retained or assumed either contractually or by operation of law,
except as would not, individually or in the aggregate, have a
Material Adverse Effect; and (iv) neither the Company nor any
of its Subsidiaries is subject to any pending or, to the
Company’s knowledge, threatened proceeding under
Environmental Law to which a governmental authority is a
party;
(dd) all tax returns required
to be filed by the Company and its Subsidiaries have been filed,
and all material taxes and other assessments of a similar nature
(whether imposed directly or through withholding) shown as due
thereon, including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities,
have been paid, other than those being contested in good faith;
there are no ongoing audits of any feder
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