PLACEMENT AGENT AGREEMENTPlacement Agent Agreement |
|
|
You are currently viewing: This Placement Agent Agreement involves
PACIFIC ETHANOL, INC. | LAZARD CAPITAL MARKETS LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit 10.6
6,000,000 Shares of Common Stock
and Warrants to Purchase 3,000,000 Shares of Common
Stock
PACIFIC ETHANOL, INC.
PLACEMENT
AGENT AGREEMENT
May
22, 2008
LAZARD
CAPITAL MARKETS LLC
30
Rockefeller Plaza
New
York, New York 10020
Dear
Sirs:
1.
Introduction . Pacific
Ethanol, Inc., a Delaware corporation (the “ Company ”),
proposes to issue and sell to the purchasers, pursuant to the terms
and conditions of this Placement Agent Agreement (this “
Agreement
”) and the subscription agreement in the form of
EXHIBIT A
attached hereto (the “ Subscription Agreements
”) entered into with the purchasers identified therein (each
a “ Purchaser ” and
collectively, the “ Purchasers ”), up
to an aggregate of 6,000,000 units (the “ Units ”), each
Unit consisting of (i) one share (a “ Share ,”
collectively, the “ Shares ”) of its
common stock, par value $0.001 per share (the “ Common Stock ”),
(ii) one warrant (the “ Warrant ” and,
together, the “ Warrants ”) to
purchase 0.50 shares of Common Stock (and the fractional amount
being the “ Warrant Ratio ”)
during a term of five years, in substantially the form attached
hereto as Exhibit B ,
subject to adjustment by the Company’s Board of Directors, or
a committee thereof, for a purchase price of $4.75 per Unit (the
“ Purchase
Price ”). The Shares issuable upon exercise
of the Warrants are referred to herein as the “ Warrant Shares ”
and, together with the Units, the Shares and the Warrants, are
referred to herein as the “ Securities. ” The
Company hereby confirms that Lazard Capital Markets LLC (“
LCM
”, or the “ Placement Agent
”) acted as Placement Agent in accordance with the terms and
conditions hereof.
2.
Agreement To Act As Placement Agent; Placement Of Securities
. On
the basis of the representations, warranties and agreements of the
Company contained herein, and subject to all the terms and
conditions of this Agreement:
(I)
The
Company has authorized and hereby acknowledges that the Placement
Agent has acted as its exclusive agent to solicit offers for the
purchase of all or part of the Units from the Company in connection
with the proposed offering of the Units (the “ Offering
”). Until the Closing Date (as defined in
Section
4 hereof), the Company shall not, without the prior written
consent of the Placement Agent, solicit or accept offers to
purchase the Units otherwise than through the Placement
Agent. LCM may utilize the expertise of Lazard
Frères & Co. LLC in connection with LCM's placement
agent activities.
1
(II)
The
Company hereby acknowledges that the Placement Agent, as agent of
the Company, has agreed to use its commercially reasonable best
efforts to solicit offers to purchase the Units from the Company on
the terms and subject to the conditions set forth in the Prospectus
(as defined below). The Placement Agent shall use
commercially reasonable efforts to assist the Company in obtaining
performance by each Purchaser whose offer to purchase the Units was
solicited by the Placement Agent and accepted by the Company, but
the Placement Agent shall not, except as otherwise provided in this
Agreement, be obligated to disclose the identity of any potential
purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Under
no circumstances will the Placement Agent be obligated to
underwrite or purchase any Units for its own account and, in
soliciting purchases of Units, the Placement Agent shall act solely
as the Company's agent and not as
principal. Notwithstanding the foregoing and except as
otherwise provided in Section 2 , it
is understood and agreed that the Placement Agent (or its
affiliates) may, solely at its discretion and without any
obligation to do so, purchase Units as principal.
(III)
Offers
for the purchase of Units were solicited by the Placement Agent as
agent for the Company at such times and in such amounts as the
Placement Agent deemed advisable. The Placement Agent
communicated to the Company, orally or in writing, each reasonable
offer to purchase Units received by it as agent 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 Agent has the right, in its
discretion, 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 this
Agreement.
(IV)
The
Units are being sold to the Purchaser(s) at a price of $4.75 per
Unit. The purchases of the Units by the Purchaser(s)
shall be evidenced by the execution of Subscription Agreements by
each of the Purchasers and the Company.
(V)
(a) As
compensation for services rendered, on the Closing Date (as defined
in Section 4
hereof), the Company shall pay to the Placement Agent by wire
transfer of immediately available funds to an account or accounts
designated by the Placement Agent, an aggregate amount equal to
five percent (5.0%) of the gross proceeds received by the Company
from the sale of the Units on such Closing Date. Such
amount may be deducted from the payment made by the Purchaser(s) to
the Company and paid directly to the Placement Agent on the Closing
Date.
No
Units which the Company has agreed to sell pursuant to this
Agreement and the Subscription Agreements 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 a
Purchaser whose offer it has accepted, the Company shall
indemnify and hold the Placement Agent harmless against any
loss, claim, damage or expense arising from or as a result of
such default by the Company in accordance with the procedures
set forth in Section
8(III) herein.
2
3.
Representations And Warranties Of The Company.
(I)
The
Company represents and warrants to the Placement Agent and the
Purchasers as of the date hereof, and agrees with the Placement
Agent and the Purchasers that:
(a)
A
registration statement of the Company on Form S 3 (File No.
333-143617) (including all pre-effective amendments thereto, the
“ Initial
Registration Statement ”) in respect of the Units has
been filed with the Securities and Exchange Commission (the “
Commission
”) pursuant to Rule 415 under the Securities Act of 1933, as
amended (the “ Securities Act
”). The Company meets the requirements for use of
Form S-3 under the Securities Act, and the rules and regulations of
the Commission thereunder (the “ Rules and Regulations
”). The Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to the
Placement Agent, and, excluding exhibits thereto, have been
declared effective by the Commission in such form and meet the
requirements of the Securities Act and the Rules and
Regulations. Other than (i) a registration statement, if
any, increasing the size of the offering filed pursuant to Rule
462(b) under the Securities Act and the Rules and Regulations (a
“ Rule
462(b) Registration Statement ”) and (ii) the
Prospectus (as defined below) contemplated by this Agreement to be
filed pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 5
hereof and (iii) any Issuer Free Writing Prospectus (as defined
below), no other document with respect to the offer and sale of the
Units has heretofore been filed with the Commission. No
stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose or pursuant to Section 8A of the Securities Act
has been initiated or threatened by the Commission. The
prospectus filed as part of the registration statement in the form
in which it has most recently been filed with the Commission on or
prior to the date of this Agreement, is hereinafter called the
“ Base
Prospectus .” The various parts of the
Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, in each case including all exhibits thereto and
including (i) the information contained in the Prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations and deemed by virtue of Rules 430B and 430C under the
Securities Act to be part of the Initial Registration Statement at
the time it became effective and (ii) the documents incorporated by
reference in the Rule 462(b) Registration Statement at the time the
Rule 462(b) Registration Statement became effective, are
hereinafter collectively called the “ Registration Statement
.” The base prospectus included in the Initial
Registration Statement at the time of effectiveness thereof, as
supplemented by the final prospectus supplement relating to the
offer and sale of the Units, in the form filed pursuant to and
within the time limits described in Rule 424(b) under the Rules and
Regulations, is hereinafter called the “ Prospectus
.”
Any
reference herein to any Registration Statement or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein. Any
reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any documents filed
after the date of such Prospectus under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), and incorporated by reference in such
Prospectus. Any reference to (i) any Registration
Statement shall be deemed to refer to and include the annual
report of the last completed fiscal year of the Company on
Form 10-K filed under Section 13(a) or 15(d) of the Exchange
Act prior to the date hereof and (ii) the effective date of
such Registration Statement shall be deemed to refer to and
include the date such Registration Statement became effective
and, if later, the date such Form 10-K was so
filed. Any reference to any amendment to the
Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the date of this
Agreement that is incorporated by reference in the
Registration Statement.
3
(b)
As
of the Applicable Time (as defined below) and as of the Closing
Date, as the case may be, neither (i) the General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the
Applicable Time, and the Pricing Prospectus (as defined below) and
the information included on SCHEDULE
A hereto, all
considered together (collectively, the “ General Disclosure
Package ”), (ii) any individual Limited Use Free
Writing Prospectus (as defined below), nor (iii) the bona fide
electronic road show (as defined in Rule 433(h)(5) of the Rules and
Regulations that has been made available without restriction to any
person), when considered together with the General Disclosure
Package, included or will include any untrue statement of a
material fact or omitted or will 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;
provided ,
however ,
that the Company makes no representations or warranties as to
information contained in or omitted from the Pricing Prospectus,
(in reliance upon, and in conformity with, written information
furnished to the Company by the Placement Agent specifically for
inclusion therein, which information the parties hereto agree is
limited to the Placement Agent’s Information (as defined in
Section
17) . As used in this paragraph (b) and elsewhere
in this Agreement:
“
Applicable
Time ” means 6:00 p.m., New York time, on the
date of this Agreement or such other time as agreed to by the
Company and the Placement Agent.
“
Pricing
Prospectus ” means the Base Prospectus, as
amended and supplemented immediately prior to the Applicable
Time, including any document incorporated by reference therein
and any prospectus supplement deemed to be a part
thereof.
“
Issuer Free
Writing Prospectus ” means any “issuer free
writing prospectus,” as defined in Rule 433 of the Rules
and Regulations 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) of the Rules and
Regulations.
“
General Use
Free Writing Prospectus ” means any Issuer Free
Writing Prospectus that is identified on
SCHEDULE A to this Agreement.
“
Limited Use
Free Writing Prospectuses ” means any Issuer Free
Writing Prospectus that is not a General Use Free Writing
Prospectus.
4
(c)
No
order preventing or suspending the use of any Issuer Free Writing
Prospectus or the Prospectus relating to the Offering has been
issued by the Commission, and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act has been instituted or
threatened by the Commission.
(d)
At
the respective times the Registration Statement and any amendments
thereto became or become effective, at the date of this
Agreement and at the Closing Date, each Registration Statement and
any amendments thereto conformed and will conform in all material
respects to the requirements of the Securities Act and the Rules
and Regulations and did not and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, not misleading; and the Prospectus and any amendments or
supplements thereto, at the time the Prospectus or any amendment or
supplement thereto was issued and at the Closing Date, conformed
and will conform in all material respects to the requirements of
the Securities Act and the Rules and Regulations and did not and
will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided, however ,
that the foregoing representations and warranties in this paragraph
(d) shall not apply to information contained in or omitted from the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, in reliance upon, and in conformity with,
written information furnished to the Company by the Placement Agent
specifically for inclusion therein, which information the parties
hereto agree is limited to the Placement Agent’s Information
(as defined in Section 17
). The Prospectus contains all required information
under the Securities Act with respect to the Units and the
distribution of the Units.
(e)
Each
Issuer Free Writing Prospectus, if any, as of its issue date and at
all subsequent times through the completion of the Offering or
until any earlier date that the Company notified or notifies the
Placement Agent as described in Section
5(I)(e) , did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, Pricing
Prospectus or the Prospectus, including any document incorporated
by reference therein and any prospectus supplement deemed to be a
part thereof that has not been superseded or modified, or included
or would include an untrue statement of a material fact or omitted
or would omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances prevailing at the subsequent time,
not misleading. The foregoing sentence does 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 Agent specifically for
inclusion therein, which information the parties hereto agree is
limited to the Placement Agent’s Information (as defined in
Section
17 ).
(f)
The
documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and none of such
documents contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading.
(g)
The
Company has not, directly or indirectly, distributed and will not
distribute any offering material in connection with the Offering
other than the Prospectus and other materials, if any, permitted
under the Securities Act and consistent with Section 5(I)(b)
below. The Company will file with the Commission all
Issuer Free Writing Prospectuses (other than a “road
show,” as described in Rule 433(d)(8) of the Rules and
Regulations) if any, in the time and manner required under Rules
163(b)(2) and 433(d) of the Rules and Regulations.
(h)
At
the time of filing the Initial Registration Statement, any 462(b)
Registration Statement and any post-effective amendments thereto,
and at the date hereof, the Company was not, and the Company
currently is not, an “ineligible issuer,” as defined in
Rule 405 of the Rules and Regulations.
(i)
The
Company and each of its subsidiaries (as defined in Section 15 )
have been duly organized and are validly existing as corporations
or other legal entities in good standing (or the foreign equivalent
thereof) under the laws of their respective jurisdictions of
organization. The Company and each of its subsidiaries
are duly qualified to do business and are in good standing as
foreign corporations or other legal entities in each jurisdiction
in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification
and have all power and authority (corporate or other) necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
so qualify or have such power or authority would not (i) have,
singularly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, assets,
business or prospects of the Company and its subsidiaries taken as
a whole, or (ii) impair in any material respect the ability of the
Company to perform its obligations under this Agreement or to
consummate any transactions contemplated by this Agreement, the
General Disclosure Package or the Prospectus (any such effect as
described in clauses (i) or (ii), a “ Material Adverse Effect
”). The Company owns or controls, directly or
indirectly, only the following corporations, partnerships, limited
liability partnerships, limited liability companies, associations
or other entities: Pacific Ethanol California, Inc., a California
corporation, Kinergy Marketing, LLC, an Oregon limited liability
company, Pacific Ag. Products, LLC, a California limited liability
company, Pacific Ethanol Madera LLC, a Delaware limited liability
company, Pacific Ethanol Holding Co. LLC, a Delaware limited
liability company, Pacific Ethanol Imperial, LLC, a Delaware
limited liability company, Pacific Ethanol Stockton LLC, a Delaware
limited liability company, Pacific Ethanol Columbia, LLC, a
Delaware limited liability company, Pacific Ethanol Magic Valley,
LLC, a Delaware limited liability company, Pacific Ethanol
Plymouth, LLC, a Delaware limited liability company and Stockton
Ethanol Receiving Company, LLC, a Delaware limited liability
company.
5
(j)
The
Company has the full right, power and authority to enter into this
Agreement, the Subscription Agreement(s) and the Warrant(s), and to
perform and to discharge its obligations hereunder and thereunder;
and each of this Agreement, each of the Subscription Agreement(s),
this Agreement and the Subscription Agreement(s) has been duly
authorized, executed and delivered by the Company, and constitutes
a valid and binding obligation of the Company enforceable in
accordance with its terms.
(k)
The
shares of Common Stock to be issued and sold by the Company to the
Purchasers hereunder and under the Subscription Agreements and the
shares of Common Stock issuable upon the exercise of the Warrants
(the “ Warrant Shares ”)
have been duly and validly authorized and the Common Stock, when
issued and delivered against payment therefor as provided herein
and in the Subscription Agreements and the Warrant Shares, when
issued and delivered against payment therefore as provided in the
Warrants, will be duly and validly issued, fully paid and
non-assessable and free of any preemptive or similar rights and
will conform to the description thereof contained in the General
Disclosure Package and the Prospectus.
(l)
The
Company has an authorized capitalization as set forth in the
Pricing Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, have been issued in compliance
with Unites States federal and state securities laws, and conform
to the description thereof contained in the General Disclosure
Package and the Prospectus. As of May 22, 2008, there
were 44,131,065 shares of Common Stock, par value $0.001 per share,
issued and outstanding, 3,750,000 shares of Series A preferred
stock, par value $0.001 per share, of the Company issued and
outstanding and 2,346,152 shares of Series B Preferred Stock, par
value $0.001 per share, of the Company issued and outstanding, and
18,382,684 shares of Common Stock were issuable upon the exercise
of all options, warrants and convertible securities outstanding as
of such date. Since such date, the Company has not issued any
securities, other than Common Stock of the Company issued pursuant
to the exercise of stock options previously outstanding under the
Company’s stock option plans or the issuance of restricted
Common Stock pursuant to employee stock purchase
plans. All of the Company’s options, warrants and
other rights to purchase or exchange any securities for shares of
the Company’s capital stock have been duly authorized and
validly issued and were issued in compliance with United States
federal and state securities laws. None of the
outstanding shares of Common Stock was issued in violation of any
preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase securities of the
Company. There are no authorized or outstanding shares
of capital stock, options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than
those described above or accurately described in the General
Disclosure Package. The description of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder,
as described in the General Disclosure Package and the Prospectus,
accurately and fairly present the information required to be shown
with respect to such plans, arrangements, options and
rights.
6
(m)
All
the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and, except to the extent set forth in the
General Disclosure Package and the Prospectus, are owned by the
Company directly or indirectly through one or more wholly-owned
subsidiaries, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other
claim of any third party.
(n)
The
execution, delivery and performance of this Agreement, the
Subscription Agreements and the Warrant by the Company, the issue
and sale of the Units by the Company and the consummation of the
transactions contemplated hereby and thereby will not (with or
without notice or lapse of time or both) conflict with or result in
a breach or violation of any of the terms or provisions of,
constitute a default or Debt Repayment Triggering Event (as defined
below) under, give rise to any right of termination or other right
or the cancellation or acceleration of any right or obligation or
loss of a benefit under, or give rise to the creation or imposition
of any lien, encumbrance, security interest, claim or charge upon
any property or assets of the Company or any subsidiary pursuant
to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws (or analogous governing instruments, as applicable) of the
Company or any of its subsidiaries or any law, statute, rule,
regulation, judgment, order or decree of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets. A “ Debt Repayment Triggering
Event ” means any event or condition that gives, or
with the giving of notice or lapse of time would give the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its
subsidiaries.
(o)
Except
for the registration of the Common Stock and Warrants under the
Securities Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws and
the Nasdaq Global Market (“ Nasdaq GM ”) in
connection with the offering and sale by the Company of the Units
and the listing of the Common Stock on the Nasdaq GM, no consent,
approval, authorization or order of, or filing, qualification or
registration (each an “ Authorization ”)
with, any court, governmental or non-governmental agency or body,
foreign or domestic, which has not been made, obtained or taken and
is not in full force and effect, is required for the execution,
delivery and performance of this Agreement, the Warrant and the
Subscription Agreements by the Company, the offer or sale of the
Units or the consummation of the transactions contemplated hereby
or thereby; and no event has occurred that allows or results in, or
after notice or lapse of time or both would allow or result in,
revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder
or maker of any such Authorization. All corporate
approvals (including those of stockholders) necessary for the
Company to consummate the transactions contemplated by this
Agreement have been obtained and are in effect.
7
(p)
Hein
& Associates LLP, who have certified certain financial
statements and related schedules included or incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus, and have audited the Company’s
internal control over financial reporting and management’s
assessment thereof, is an independent registered public accounting
firm within the meaning of Article 2-01 of Regulation S-X and the
Public Company Accounting Oversight Board (United States) (the
“ PCAOB
”). Except as disclosed in the Registration
Statement and as pre-approved in accordance with the requirements
set forth in Section 10A of the Exchange Act, Hein & Associates
LLP has not been engaged by the Company to perform any
“prohibited activities” (as defined in Section 10A of
the Exchange Act).
(q)
The
financial statements, together with the related notes and
schedules, included or incorporated by reference in the General
Disclosure Package, the Prospectus and in each Registration
Statement fairly present the financial position and the results of
operations and changes in financial position of the Company and its
consolidated subsidiaries and other consolidated entities at the
respective dates or for the respective periods therein
specified. Such statements and related notes and
schedules have been prepared in accordance with the generally
accepted accounting principles in the United States (“
GAAP
”) applied on a consistent basis throughout the periods
involved except as may be set forth in the related notes included
or incorporated by reference in the General Disclosure
Package. The financial statements, together with the
related notes and schedules, included or incorporated by reference
in the General Disclosure Package and the Prospectus comply in all
material respects with Regulation S-X. No other
financial statements or supporting schedules or exhibits are
required Regulation S-X to be described, or included or
incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus. There is
no pro forma or as adjusted financial information which is required
to be included in the Registration Statement, the General
Disclosure Package, or and the Prospectus or a document
incorporated by reference therein in accordance with Regulation S-X
which has not been included or incorporated as so
required. The summary and selected financial data
included or incorporated by reference in the General Disclosure
Package, the Prospectus and each Registration Statement fairly
present the information shown therein as at their respective dates
and for the respective periods specified and are derived from the
consolidated financial statements set forth or incorporated by
reference in the Registration Statement, the Pricing Prospectus and
the Prospectus and other financial information. All
information contained in the Registration Statement, the General
Disclosure Package and the Prospectus regarding “non-GAAP
financial measures” (as defined in Regulation G) complies
with Regulation G and Item 10 of Regulation S-K, to the extent
applicable.
(r)
Neither
the Company nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included or
incorporated by reference in the General Disclosure Package, 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 dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the General Disclosure Package; and, since such
date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, assets,
general affairs, management, financial position, prospects,
stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the General Disclosure Package.
8
(s)
There
is no legal or governmental action, suit, claim or proceeding
pending to which the Company or any of its subsidiaries is a party
or of which any property or assets of the Company or any of its
subsidiaries is the subject, which is required to be described in
the Registration Statement, the General Disclosure Package or the
Prospectus or a document incorporated by reference therein and is
not described therein, or which, singularly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries,
could have a Material Adverse Effect or prevent the consummation of
the transactions contemplated hereby; and to the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(t)
Except
as described in the General Disclosure Package, neither the Company
nor any of its subsidiaries (i) is in violation of its charter or
by-laws (or analogous governing instrument, as applicable), (ii) is
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 term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement 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) is in violation in any respect of any
law, ordinance, governmental rule, regulation or court order,
decree or judgment to which it or its property or assets may be
subject except, in the case of clauses (ii) and (iii) of this
paragraph (s), for any violations or defaults which, singularly or
in the aggregate, would not have a Material Adverse
Effect.
(u)
The
Company and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made
all declarations and filings with, the appropriate local, state,
federal or foreign regulatory agencies or bodies which are
necessary or desirable for the ownership of their respective
properties or the conduct of their respective businesses as
described in the General Disclosure Package and the Prospectus
(collectively, the “ Governmental Permits
”) except where any failures to possess or make the same,
singularly or in the aggregate, would not have a Material Adverse
Effect. The Company and its subsidiaries are in
compliance with all such Governmental Permits; all such
Governmental Permits are valid and in full force and effect, except
where the validity or failure to be in full force and effect would
not, singularly or in the aggregate, have a Material Adverse
Effect. All such Governmental Permits are free and clear
of any restriction or condition that are in addition to, or
materially different from those normally applicable to similar
licenses, certificates, authorizations and
permits. Neither the Company nor any subsidiary has
received notification of any revocation, modification, suspension,
termination or invalidation (or proceedings related thereto) of any
such Governmental Permit and to the knowledge of the Company, no
event has occurred that allows or results in, or after notice or
lapse of time or both would allow or result in, revocation,
modification, suspension, termination or invalidation (or
proceedings related thereto) of any such Governmental Permit and
the Company has no reason to believe that any such Governmental
Permit will not be renewed; and the Company and its subsidiaries
are members in good standing of each federal, state or foreign
exchange, board of trade, clearing house or association and
self-regulatory or similar organization, in each case as necessary
to conduct their respective businesses as described in the General
Disclosure Package and the Prospectus.
9
(v)
Neither
the Company nor any of its subsidiaries is or, after giving effect
to the offering of the Units and the application of the proceeds
thereof as described in the General Disclosure Package and the
Prospectus, will become an “investment company” within
the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission
thereunder.
(w)
Neither
the Company nor any of its subsidiaries, or any of their respective
officers, directors or affiliates has taken or will take, directly
or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which
caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of
the price of any security of the Company.
(x)
The
Company and its subsidiaries own or possess legally enforceable
rights from all necessary third parties (the “ Licensors ”) to
use all patents, trademarks, trademark registrations, service
marks, service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets, know-how and other
intellectual property rights necessary for the conduct of its
business described in the General Disclosure Package and the
Prospectus, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the
Company or its subsidiaries with respect to the
foregoing. Except where such failure to make the same
would not, singularly or in the aggregate, have a Material Adverse
Effect, the Company or its subsidiaries is listed in the records of
the appropriate United States, state, or foreign registry as the
sole current owner of record for each intellectual property
registration and application for registration owned by the Company
or its subsidiaries, respectively, except for such intellectual
property applications as have been filed in the name of employees
who are contractually obligated to assign all of their rights in
and to such intellectual property applications to the Company, and
all such applications and registrations have been duly maintained,
are subsisting, in full force and effect, have not been cancelled,
expired, or abandoned. Neither the Company nor its
subsidiaries has received written notification of any revocation or
modification of any registered intellectual property right, or has
any reason to believe that any renewable registered intellectual
property right will not be renewed, other than any revocation,
modification or failure to renew that would not, singularly or in
the aggregate, have a Material Adverse Effect. The
business of the Company and its subsidiaries as now conducted, and
as proposed to be conducted as described in the General Disclosure
Package and the Prospectus, does not and will not infringe or
conflict with any patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, know-how or other intellectual
property right or franchise right of any person, except where such
infringement would not, singly or in the aggregate, have a Material
Adverse Effect. There are no oppositions, cancellations, invalidity
proceedings, re-examination proceedings, suits, arbitrations, or
threatened claims pending or for which notice has been provided or,
to the knowledge of Company, threatened, challenging the Company's
or its subsidiaries’ ownership of, right to use, or the
validity or enforceability of any patent, trademark, service mark,
trade name, copyright, trade secret, license, know-how or other
intellectual property right or franchise right of any person which
would, singularly or in the aggregate, have a Material Adverse
Effect.
10
(y)
Patent
applications for all inventions owned by or licensed to the Company
or its subsidiaries that are material to the conduct of the
business of the Company or its subsidiaries in the manner in which
it has been or is contemplated to be conducted have been duly and
properly filed or caused to be filed with the United States Patent
and Trademark Office (“ PTO ”) and, in
some cases, applicable foreign and international patent
authorities. Assignments for all patents and patent
applications, including, without limitation any continuations,
divisionals, continuations-in-part, renewals, reissues and
applications for registration of any of the foregoing
(collectively, the “ Patents ”) owned
by or licensed to the Company or its subsidiaries that are material
to the conduct of the business of the Company or its subsidiaries
in the manner in which it has been or is contemplated to be
conducted have been properly executed and recorded for each named
inventor. To the knowledge of the Company, all printed
publications and patent references material to the patentability of
the inventions claimed in the Patents have been disclosed to those
patent offices so requiring. To the knowledge of the
Company, each of the Company, its subsidiaries and their respective
assignors or the Licensors, as applicable, has met its duty of
candor and good faith to the PTO for the Patents. To the
knowledge of the Company, no material misrepresentation has been
made to any patent office in connection with the
Patents. The Company is not aware of any facts material
to a determination of patentability regarding the Patents not
disclosed to the PTO or other applicable patent
office. The Company is not aware of any facts not
disclosed to the PTO or other applicable patent office that would
preclude the patentability, validity or enforceability of any
patent or patent application in the Patents. The Company
has no knowledge of any facts that would preclude the Company, its
subsidiaries or the Licensors, as applicable, from having clear
title to the patents and patent applications in the
Patents.
(z)
To
the knowledge of the Company, no third party is engaging in any
activity that infringes, misappropriates or otherwise violates any
patent, trademark, service mark, trade name, copyright, trade
secret, license, know-how or any other intellectual property right
or franchise right owned by or licensed to the Company or its
subsidiaries, except as described in the General Disclosure Package
and the Prospectus and except for such activities that, singularly
or in the aggregate, would not have a Material Adverse
Effect.
11
(aa)
With
respect to each material agreement governing all rights in and to
any patent, trademark, service mark, trade name, copyright, trade
secret, license, know-how or any other intellectual property right
or franchise right licensed by or licensed to the Company or its
subsidiaries: (i) neither the Company nor its subsidiaries has
received any notice of indemnification, termination or cancellation
under such agreement, received any notice of breach or default
under such agreement, which breach has not been cured, or granted
to any third party any rights, adverse or otherwise, under such
agreement that would constitute a material breach of such
agreement; and (ii) none of the Company, its subsidiaries nor, to
the knowledge of the Company, any other party to such agreement, is
in breach or default thereof in any material respect, and no event
has occurred that, with notice or lapse of time, would constitute
such a material breach or default or permit termination,
modification or acceleration under such agreement.
(bb)
Except
as described in the General Disclosure Package, the Company and
each of its subsidiaries have good and marketable title in fee
simple to, or have valid rights to lease or otherwise use, all
items of real or personal property which are material to the
business of the Company and its subsidiaries taken as a whole, in
each case free and clear of all liens, encumbrances, security
interests, claims and defects that do not, singularly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in
the General Disclosure Package and the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(cc)
There
is (A) no significant unfair labor practice complaint pending
against the Company, or any of its subsidiaries, nor, to the
knowledge of the Company, threatened against it or any of its
subsidiaries, before the National Labor Relations Board, any state
or local labor relation board or any foreign labor relations board,
and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so
pending against the Company or any of its subsidiaries, or, to the
knowledge of the Company, threatened against it and (B)
no labor disturbance by the employees of the Company or
any of its subsidiaries exists or, to
the Company’s knowledge, is imminent, and the
Company is not aware of any existing or imminent labor disturbance
by the employees of any of its or its subsidiaries principal
suppliers, manufacturers, customers or contractors, that could
reasonably be expected, singularly or in the aggregate, to have a
Material Adverse Effect. The Company is not aware that
any key employee or significant group of employees of the Company
or any subsidiary plans to terminate employment with the Company or
any such subsidiary.
12
(dd)
No
“prohibited transaction” (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”), or
Section 4975 of the Internal Revenue Code of 1986, as amended from
time to time (the “ Code ”)) or
“accumulated funding deficiency” (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the thirty (30)-day
notice requirement under Section 4043 of ERISA has been waived) has
occurred or could reasonably be expected to occur with respect to
any employee benefit plan of the Company or any of its subsidiaries
which could, singularly or in the aggregate, have a Material
Adverse Effect. Each employee benefit plan of the
Company or any of its subsidiaries is in compliance in all material
respects with applicable law, including ERISA and the
Code. The Company and its subsidiaries have not incurred
and could not reasonably be expected to incur liability under Title
IV of ERISA with respect to the termination of, or withdrawal from,
any pension plan (as defined in ERISA). 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, and nothing has occurred, whether by
action or by failure to act, which could, singularly or in the
aggregate, cause the loss of such qualification.
(ee)
The
Company and its subsidiaries are in compliance with all foreign,
federal, state and local rules, laws and regulations relating to
the use, treatment, storage and disposal of hazardous or toxic
substances or waste and protection of health and safety or the
environment which are applicable to their businesses (“
Environmental
Laws ”). There has been no storage,
generation, transportation, handling, treatment, disposal,
discharge, emission, or other release of any kind of toxic or other
wastes or other hazardous substances by, due to, or caused by the
Company or any of its subsidiaries (or, to the Company’s
knowledge, any other entity for whose acts or omissions the Company
or any of its subsidiaries is or may otherwise be liable) upon any
of the property now or previously owned or leased by the Company or
any of its subsidiaries, or upon any other property, in violation
of any law, statute, ordinance, rule, regulation, order, judgment,
decree or permit or which would, under any law, statute, ordinance,
rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability; and there has been no
disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of
any toxic or other wastes or other hazardous substances with
respect to which the Company or any of its subsidiaries has
knowledge. In the ordinary course of business, the
Company and its subsidiaries conduct periodic reviews of the effect
of Environmental Laws on their business and assets, in the course
of which they identify and evaluate associated costs and
liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or Governmental Permits
issued thereunder, any related constraints on operating activities
and any potential liabilities to third parties). On the
basis of such reviews, the Company has reasonably concluded that
such associated costs and liabilities would not have, singularly or
in the aggregate, a Material Adverse Effect.
(ff)
The
Company and its subsidiaries each (i) have timely filed all
necessary federal, state, local and foreign tax returns, and all
such returns were true, complete and correct, (ii) have paid all
federal, state, local and foreign taxes, assessments, governmental
or other charges due and payable for which it is liable, including,
without limitation, all sales and use taxes and all taxes which the
Company or any of its subsidiaries is obligated to withhold from
amounts owing to employees, creditors and third parties, and (iii)
do not have any tax deficiency or claims outstanding or assessed
or, to its knowledge, proposed against any of them, except those,
in each of the cases described in clauses (i), (ii) and (iii) of
this paragraph (ff), that would not, singularly or in the
aggregate, have a Material Adverse Effect. The Company
and its subsidiaries have not engaged in any transaction which is a
corporate tax shelter or which could be characterized as such by
the Internal Revenue Service or any other taxing
authority. The accruals and reserves on the books and
records of the Company and its subsidiaries in respect of tax
liabilities for any taxable period not yet finally determined are
adequate to meet any assessments and related liabilities for any
such period, and since December 31, 2007, neither the Company nor
any of its subsidiaries has incurred any liability for taxes other
than in the ordinary course.
13
(gg)
The
Company and each of its subsidiaries carry, or are covered by,
insurance provided by recognized, financially sound and reputable
institutions with policies in such amounts and covering such risks
as is adequate for the conduct of their respective businesses and
the value of their respective properties and as is customary for
companies engaged in similar businesses in similar
industries. Neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able (i)
to renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not result in a
Material Adverse Effect. Neither the Company nor any of
its subsidiaries have been denied any insurance coverage that they
have sought or for which they have applied. Neither the
Compan
|
SITE SEARCH
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
