SUPERCONDUCTOR TECHNOLOGIES
INC.
Shares of Common Stock
($0.001 par value)
PLACEMENT AGENT
AGREEMENT
SG COWEN &
CO., LLC
1221 Avenue of the Americas
New York, New York 10020
Superconductor
Technologies Inc., a Delaware corporation (the “
Company ”), proposes to sell to the Purchasers,
pursuant to the terms of this Placement Agent Agreement (this
“ Agreement ”) and the Subscription Agreements
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 ”),
an aggregate of (i) 20,547,945 shares of Common Stock, $0.001
par value (the “ Common Stock ”), of the Company
and (ii) 4,109,589 warrants substantially in the form of
Exhibit B hereto (the “ Warrants ,”
such number of warrants being equal to twenty percent (20%) of the
number of shares of stock proposed to be sold by the Company to the
Purchasers) to purchase the Common Stock. The aggregate of
17,123,288 shares so proposed to be sold is hereinafter referred to
as the “ Firm Stock ” and the 3,424,658 warrants
so proposed to be sold is hereinafter referred to as the “
Firm Warrants ,” and together with the Firm Stock, the
“ Firm Securities ”). The Company also proposes
to sell to the Purchasers, upon the terms and conditions set forth
in Section 3(b) hereof, up to an additional 3,424,658 shares of
Common Stock (such number of shares of Common Stock being equal to
twenty percent (20%) of the number of shares of Firm Stock proposed
to be sold by the Company to the Purchasers, the “ Option
Stock ,” and together with the Firm Stock, the “
Stock ”) and 684,932 warrants to purchase the Common
Stock (such number of warrants being equal to twenty percent (20%)
of the number of shares of Option Stock proposed to be sold by the
Company to the Purchasers, the “ Option Warrants
,” and together with the Option Stock, the “ Option
Securities ”). The Firm Securities and the Option
Securities are hereinafter collectively referred to as the “
Securities .” The Company hereby confirms its
agreement with SG Cowen & Co., LLC (“ SG Cowen
”) as follows (certain terms used herein are defined in
Section 13 hereof):
1. AGREEMENT
TO ACT AS PLACEMENT AGENT; PLACEMENT OF SECURITIES
. On the basis of the
representations, warranties and agreements of the Company herein
contained, and subject to all the terms and conditions of this
Agreement:
(a) The
Company hereby authorizes SG Cowen to act as its exclusive agent
(in such capacity, the “ Placement Agent ”) to
solicit offers for the purchase of all or part of the Securities
from the Company in connection with the proposed offering of the
Securities (the “ Offering ”). Until the final
Closing Date, the Company shall not,
without the
prior consent of the Placement Agent, solicit or accept offers to
purchase Securities otherwise than through the Placement
Agent.
(b) The
Placement Agent agrees, as agent of the Company, to use its best
efforts to solicit offers to purchase the Securities from the
Company on the terms and subject to the conditions set forth in the
Base Prospectus (as defined below) and the Prospectus Supplement
(as defined below). The Placement Agent shall make commercially
reasonable efforts to assist the Company in obtaining performance
by each Purchaser whose offer to purchase Securities 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, 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 purchase any
Securities for its own account and, in soliciting purchases of
Securities, 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 1(c) , 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 Securities as
principal.
(c) Subject to the provisions of this
Section 1 , offers for the purchase of Securities may
be solicited by the Placement Agent as agent for the Company at
such times and in such amounts as the Placement Agent deems
advisable. The Placement Agent shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Securities
received by it as agent of the Company. The Company shall have the
sole right to accept offers to purchase the Securities and may
reject any such offer, in whole or in part. The Placement Agent
shall have the right, in its discretion reasonably exercised,
without notice to the Company, to reject any offer to purchase
Securities received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained
herein.
(d) The
purchases of the Securities by the Purchasers shall be evidenced by
the execution of the Subscription Agreements by each of the parties
thereto.
(e) As
compensation for services rendered, on each Closing Date 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 amount equal to six percent (6%) of the
gross proceeds received by the Company from the sale of the
Securities on such Closing Date.
(f) No
Securities which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or
sold by the Company, until such Securities shall have been
delivered to the Purchaser thereof against payment by such
Purchaser. If the Company shall default in its obligations to
deliver Securities to a Purchaser whose offer it has accepted, the
Company shall indemnify and hold the Placement Agent harmless
against any loss, claim or damage arising from or as a result of
such default by the Company.
(g) The
Placement Agent shall make reasonable efforts to obtain a
communication from the National Association of Securities Dealers,
Inc. (“ NASD ”) indicating that
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the NASD shall
have raised no objection to the fairness and reasonableness of the
placement agent terms and arrangements.
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND ITS
SUBSIDIARY. The Company
and its Subsidiary (as defined below) represent and warrant to, and
agree with, the Placement Agent and the Purchasers that:
(a) The
Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the “ Securities
Act ”), and has filed with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on such form (Registration File No. 333-111818),
which became effective as of March 17, 2004, for the
registration under the Securities Act of the Securities, including,
but not limited to, any shares of Common Stock issuable upon
exercise of the Warrants (the “ Warrant Stock
”). Such registration statement meets the requirements set
forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission
pursuant to, and in compliance with, Rule 424(b) under the
Securities Act, and the rules and regulations (the “ Rules
and Regulations ”) of the Commission promulgated
thereunder, a supplement to the form of prospectus included in such
registration statement relating to the placement of the Securities
and the plan of distribution thereof. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the “ Registration
Statement ”; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the
“ Base Prospectus ”; and the supplemented form
of prospectus, in the form in which it will be filed with the
Commission pursuant to Rule 424(b) (including the Base Prospectus
as so supplemented) is hereinafter called a “ Prospectus
Supplement .” Any reference herein to the Registration
Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by
reference therein (the “ Incorporated Documents
”) pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), on or before the date of this
Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be; and any reference herein
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the
case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included,” “described,” “set
forth” or “stated” in the Registration Statement,
the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration
Statement, the Base Prospectus or the Prospectus Supplement, as the
case may be. No stop order suspending the effectiveness of the
Registration Statement or the use of the Base Prospectus or the
Prospectus Supplement has been issued, and no proceeding for any
such purpose is pending or has been initiated or, to the
Company’s knowledge, is threatened by the
Commission.
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(b) The
Registration Statement (and any further documents to be filed with
the Commission) contains all exhibits and schedules as required by
the Securities Act. Each of the Registration Statement and any
post-effective amendment thereto, at the time it became effective,
complied in all material respects with the Securities Act and the
Exchange Act and the applicable Rules and Regulations and did not
and, as amended or supplemented, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. The Base Prospectus and the
Prospectus Supplement, each as of its respective date, comply in
all material respects with the Securities Act and the Exchange Act
and the applicable Rules and Regulations. Each of the Base
Prospectus and the Prospectus Supplement, as amended or
supplemented, did not and will not contain as of the date thereof
any 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. The
Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Exchange Act and the applicable Rules and Regulations, and none of
such documents, when they were filed with the Commission, contained
any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Base Prospectus or Prospectus Supplement, when
such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not
misleading. Notwithstanding the foregoing, the Company makes no
representations or warranties as to information, if any, contained
in or omitted from the Prospectus Supplement or any amendment
thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of the Placement Agent specifically for use in the
Registration Statement or the Prospectus Supplement, which
information the parties hereto agree is limited to the Placement
Agent’s Information as defined in Section 15. No
post-effective amendment to the Registration Statement reflecting
any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the
information set forth therein is required to be filed with the
Commission. There are no documents required to be filed with the
Commission in connection with the Offering that (x) have not
been filed as required pursuant to the Securities Act or
(y) will not be filed within the requisite time period. There
are no contracts or other documents required to be described in the
Base Prospectus or Prospectus Supplement, or to be filed as
exhibits or schedules to the Registration Statement, which have not
been described or filed as required.
(c) The
Company has delivered, or will as promptly as practicable deliver,
to the Placement Agent complete conformed copies of the
Registration Statement and of each consent and certificate of
experts filed as a part thereof, and conformed copies of the
Registration Statement (without exhibits) and the Base Prospectus
and the Prospectus Supplement, as amended or supplemented, in such
quantities and at such places as the Placement Agent reasonably
requests. Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the
completion of the distribution of Securities, any offering material
in connection with the offering and sale of the Securities other
than the Base Prospectus, the Prospectus
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Supplement, the
Registration Statement, copies of the documents incorporated by
reference therein and any other materials permitted by the
Securities Act.
(d) Each
of the Company and Conductus, Inc., a wholly-owned subsidiary of
the Company (the “ Subsidiary ”), has been duly
organized and are validly existing as corporations or other legal
entities in good standing (or the equivalent thereof, if any) under
the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing (or the
equivalent thereof, if any) as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and has all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
be so qualified and in good standing or have such power or
authority would not have, singularly or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
results of operations, business, properties or prospects of the
Company and its Subsidiary taken as a whole (a “ Material
Adverse Effect ”).
(e) The
Securities and the Warrant Stock to be issued and sold by the
Company pursuant to the Subscription Agreements have been duly and
validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully
paid and nonassessable and free of any preemptive or similar
rights. The Securities and the Warrant Stock conform to the
description thereof contained in the Base Prospectus and the
Prospectus Supplement.
(f) The
Company has an authorized capitalization as set forth in the Base
Prospectus and the Prospectus Supplement, all of the issued and
outstanding 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 federal and
state securities laws, and conform to the description thereof
contained in the Base Prospectus and the Prospectus Supplement.
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 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 its Subsidiary that have been granted by the Company other than
those accurately described in the Base Prospectus and the
Prospectus Supplement. 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
Base Prospectus and the Prospectus Supplement accurately and fairly
present the information required to be shown with respect to such
plans, arrangements, options and rights.
(g) All
the outstanding shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and
nonassessable and, except to the extent set forth in the Base
Prospectus and the Prospectus Supplement, are owned directly by the
Company, and except as set forth on Schedule I are free and
clear of any claim, lien, encumbrance, security interest, defect or
restriction upon voting or transfer or any other claim of any kind
(“ Liens ”).
(h) The
Company has the full right, power and authority to enter into this
Agreement, each of the Subscription Agreements and the Warrants and
to perform
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and to
discharge its obligations hereunder and thereunder; and this
Agreement, each of the Subscription Agreements and the Warrants 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.
(i) The
execution, delivery and performance of this Agreement, each of the
Subscription Agreements and the Warrants by the Company and the
consummation of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or its Subsidiary is a
party or by which the Company or its Subsidiary is bound or to
which any of the property or assets of the Company or its
Subsidiary is subject, except where such conflict, breach,
violation or default would not reasonably be expected to have a
Material Adverse Effect, nor will such actions result in any
violation of the provisions of the charter or by-laws of the
Company or its Subsidiary or any statute, law, rule or regulation
or any judgment, order or decree of any court or governmental
agency or body having jurisdiction over the Company or its
Subsidiary or any of their properties or assets.
(j) There
is no franchise, contract, lease, instrument or other document of a
character required by the Securities Act or the Rules and
Regulations to be described in the Base Prospectus and the
Prospectus Supplement, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as
required; and all statements summarizing any such franchises,
contracts, leases, instruments or other documents or legal matters
contained in the Registration Statement are accurate and complete
in all material respects. Other than as described in the Base
Prospectus and the Prospectus Supplement, no such franchise,
contract, lease, instrument or other document has been suspended or
terminated for convenience or default by the Company or any of the
other parties thereto, the Company has not sent or received any
communication regarding intent not to renew any such franchise,
contract, lease, instrument or other document, and the Company has
not received notice or any other knowledge of any such pending or
threatened suspension, termination or non-renewal, except for such
pending or threatened suspensions, terminations or non-renewals
that would not reasonably be expected to, singularly or in the
aggregate, have a Material Adverse Effect.
(k) All
existing minute books of the Company and its Subsidiary, including
all existing records of all meetings and actions of the board of
directors (including, Audit, Compensation, Nomination/Corporate
Governance and other board committees) and stockholders of the
Company through the date of the latest meeting and action
(collectively, the “ Corporate Records ”) have
been made available to the Placement Agent and counsel for the
Placement Agent. All such Corporate Records are complete and
accurately reflect, in all material respects, all transactions
referred to in such Corporate Records. There are no material
transactions, agreements or other actions of the Company that are
not properly approved and/or recorded in the Corporate
Records.
(l) No
consent, approval, authorization, filing with or order of or
registration with, any court or governmental agency or body is
required in connection with the transactions contemplated herein or
in the Subscription Agreements, except such as have been obtained
or made under the Securities Act or the Exchange Act and such
as
6
may be required
under the securities, or blue sky, laws of any jurisdiction or the
by-laws and rules of the NASD in connection with the offer and sale
of the Securities by the Company in the manner contemplated herein
and in the Base Prospectus and the Prospectus
Supplement.
(m) Except
as described in the Base Prospectus and the Prospectus Supplement,
(i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any
shares
of Common Stock or shares of any other capital stock or other
equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other
rights to purchase any shares of Common Stock or shares of any
other capital stock or other 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 in connection with and as a result of the offer and sale of
the Securities, 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
Securities as contemplated thereby or otherwise; no person has the
right, contractual or otherwise, to cause the Company to register
under the Securities 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 Securities as contemplated thereby or otherwise, except for
persons and entities who have expressly waived such right or who
have been given timely and proper notice and have failed to
exercise such right within the time or times required under the
terms and conditions of such right, and the Company is not required
to file any registration statement for the registration of any
securities of any person or register any such securities pursuant
to any other registration statement filed by the Company under the
Securities Act for a period of at least 90 days after the date
hereof.
(n) The
financial statements, together with the related notes and
schedules, of the Company included in the Base Prospectus, the
Prospectus Supplement or the Registration Statement, or
incorporated by reference therein, as the case may be, present
fairly the financial condition, results of operations and cash
flows of the Company and its consolidated subsidiary and other
consolidated entities as of the dates and for the periods
indicated, comply in all material respects with the Securities Act
and the Rules and Regulations thereunder, and have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved. No other
financial statements or supporting schedules or exhibits are
required by the Securities Act or the Rules and Regulations
thereunder to be included in the Base Prospectus, the Prospectus
Supplement or the Registration Statement, or incorporated by
reference therein, as the case may be.
(o) Except
as set forth in the Base Prospectus and the Prospectus Supplement,
there is no legal or governmental proceeding pending to which the
Company or its Subsidiary is a party or of which any property or
assets of the Company or its Subsidiary is the subject which is
required to be described in the Base Prospectus or the Prospectus
Supplement and is not described therein, or which, singularly or in
the aggregate, if determined adversely to the Company or its
Subsidiary, might have a Material Adverse Effect or would prevent
or adversely affect the ability of the Company to perform its
obligations under this Agreement; and to the
Company’s
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knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(p) The
Company and its Subsidiary have good and marketable title to all
property (real and personal) described in the Registration
Statement, the Base Prospectus and the Prospectus Supplement as
being owned by the Company or its Subsidiary, free and clear of all
Liens, except for those Liens that do not materially interfere with
the use made or proposed to be made of such property by the Company
or its Subsidiary or that would not have a Material Adverse Effect;
all the property described in the Registration Statement, the Base
Prospectus and the Prospectus Supplement as being held under lease
by the Company or its Subsidiary is held thereby under valid,
subsisting and enforceable leases except where the failure of a
lease to be valid, subsisting or enforceable would not have a
Material Adverse Effect.
(q) Neither the Company nor its Subsidiary
is (i) in violation of any provision of its charter or bylaws,
(ii) in default in any respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term,
covenant, or condition of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or by which it is bound or to which any of its property or
assets is subject, or (iii) in violation in any respect of any
statute, law, rule, regulation, ordinance, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company, its Subsidiary or any of its
properties, as applicable, except, with respect to clauses
(ii) and (iii), any violations or defaults which, singularly
or in the aggregate, would not have a Material Adverse
Effect.
(r) The
contracts described in the Company’s regular reports on Forms
10-Q, 10-K, and 8-K as filed by the Company with the Commission or
incorporated by reference therein that are material to the Company
are in full force and effect on the date hereof, and neither the
Company nor, to the Company’s knowledge, any other party to
such contracts is in breach of or default under any of such
contracts which would have a Material Adverse Effect.
(s) No
labor problem or dispute with the employees of the Company exists
or, to the Company’s knowledge, is threatened or imminent,
which might be expected to have a Material Adverse Effect. The
Company is not aware that any key employee or significant group of
employees of the Company or its Subsidiary plans to terminate
employment with the Company or such Subsidiary.
(t) Each
of the Company and its Subsidiary has fulfilled its obligations, if
any, under the minimum funding standards of Section 302 of the
United States Employee Retirement Income Security Act of 1974
(“ ERISA ”) and the regulations and published
interpretations thereunder with respect to each “ plan
” (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of
the Company and its Subsidiary are eligible to participate and each
such plan is in compliance in all material respects with the
presently applicable provisions of ERISA and such regulations and
published interpretations. No “ prohibited transaction
” (as defined in Section 406 of ERISA, or
Section 4975 of the Internal
8
Revenue Code of
1986, as amended from time to time (the “ Code
”)) has occurred with respect to any employee benefit plan
which could have a Material Adverse Effect. Each of the Company and
its Subsidiary has not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV
of ERISA. Each “ pension plan ” (as defined in
ERISA) for which the Company 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, which could cause the loss
of such qualification.
(u) Each
of the Company and its Subsidiary carry, or are covered by,
insurance 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; all such
insurance is fully in force on the date hereof and will be fully in
force on each Closing Date.
(v) Each
of the Company and its Subsidiary has made all filings,
applications and submissions required by, and possesses all
approvals, licenses, certificates, certifications, clearances,
consents, exemptions, marks, notifications, orders, permits and
other authorizations issued by, the appropriate federal, state or
foreign regulatory authorities necessary to conduct its businesses
(collectively, “ Permits ”), except for such
Permits which the failure to obtain would not have a Material
Adverse Effect, and is in compliance with the terms and conditions
of all such Permits; all of such Permits held by each of the
Company and its Subsidiary are valid and in full force and effect;
there is no pending or threatened action, suit, claim or proceeding
which may cause any such Permit to be limited, revoked, cancelled,
suspended, modified or not renewed and each of the Company and its
Subsidiary has not received any notice of proceedings relating to
the limitation, revocation, cancellation, suspension, modification
or non-renewal of any such Permit which, singularly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Base Prospectus or
the Prospectus Supplement.
(w) PriceWaterhouseCoopers LLP, who has
certified certain financial statements of the Company and delivered
their report with respect to the audited consolidated financial
statements and schedules included in the Base Prospectus, the
Prospectus Supplement or the Registration Statement, or
incorporated by reference therein, as the case may be, are
independent public accountants with respect to the Company within
the meaning of the Securities Act and the Rules and
Regulations.
(x) Each
of the Company and its Subsidiary has filed all foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect, except
as set forth in the Base Prospectus and the Prospectus Supplement)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect, except
as set forth in the Base Prospectus and the Prospectus
Supplement.
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(y) The
principal executive officer and principal financial officer of the
Company have made all certifications required by the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith (the “ Sarbanes-Oxley Act ”), and the
statements contained in any such certification are complete and
correct. The Company maintains “disclosure controls and
procedures” (as defined in Rule 13a-14(c) under the
Exchange Act), and such controls and procedures are designed
(i) to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission’s rules and forms
and (ii) to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the
Exchange Act is accumulated and communicated to the Company’s
management, including its principal executive officer and principal
financial officer, as appropriate to allow timely decisions
regarding required disclosure. The Company does not have any
material weaknesses in internal controls, and there has been no
fraud, whether or not material, that involves management or other
employees who have a significant role in the Company’s
internal controls. The Company is otherwise in compliance in all
respects with all applicable effective provisions of the
Sarbanes-Oxley Act and the rules and regulations promulgated by the
Commission (and intends to comply with all applicable provisions
that are not yet effective upon effectiveness).
(z) Each
of the Company and its Subsidiary maintains a system 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 accountability of
assets; (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.
(aa) Each
of the Company and its Subsidiary (i) is in compliance in all
material respects with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) has received and is
in compliance with all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its
business and (iii) has not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated by the Base Prospectus and the Prospectus
Supplement (exclusive of any supplement thereto). The Company has
not been named as a “ potentially responsible party
” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(bb) There
has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of medical wastes, toxic
wastes, hazardous
10
wastes or
hazardous substances by the Company or its Subsidiary (or, to the
knowledge of the Company, any of their predecessors in interest)
at, upon or from any of the property now or previously owned or
leased by the Company or its Subsidiary in violation of any
applicable Environmental Law which would require remedial action
under any applicable Environmental Law, except for any violation or
remedial action which would not cause, singularly or in the
aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto
such property or of any medical wastes, toxic wastes, hazardous
wastes or hazardous substances due to or caused by the Company or
its Subsidiary or with respect to which the Company or its
Subsidiary had knowledge, except for any such spill, discharge,
leak, emission, injection, escapes, dumpings or releases which
would not cause or would not be reasonably likely to cause,
singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings or releases, a
Material Adverse Effect; and the terms “hazardous
substances,” “toxic wastes,” “hazardous
wastes” and “medical wastes” shall have the
meanings specified in any applicable Environmental Laws.
(cc) In
the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business,
operations and properties of each of the Company and its
Subsidiary, in the course of which it identifies and evaluates
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 any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not, singularly or in
the aggregate, have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Base Prospectus and
the Prospectus Supplement.
(dd) Each
of the Company and its Subsidiary own, possess, license or have
other rights to use all foreign and domestic patents, patent
applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, Internet domain names, know-how and other
intellectual property necessary for the conduct of the
Company’s business as now conducted or as proposed in the
Base Prospectus and the Prospectus Supplement to be conducted
(collectively, the “ Intellectual Property ”).
Except as set forth in Schedule I and in the Base
Prospectus and the Prospectus Supplement (i) there are no
rights of third parties to any such Intellectual Property;
(ii) to the Company’s knowledge, there is no
infringement by third parties of any such Intellectual Property;
(iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s and its Subsidiary’s rights
in or to any such Intellectual Property, and the Company is unaware
of any facts which would form a reasonable basis for any such
claim; (iv) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual
Property; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
that the Company and its Subsidiary infringe or otherwise violate
any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any other fact
which would form a reasonable basis for any such claim;
11
(vi) to
the Company’s knowledge, there is no third-party patent or
published patent application which contains claims for which an
Interference Proceeding could be reasonably commenced against any
patent or patent application that is part of the Intellectual
Property; (vii) there is no pending or, to the best of the
Company’s knowledge, threatened action, suit, proceeding or
claim by others claiming the ownership of and interest in the
Intellectual Property; and (viii) each of the Company and its
Subsidiary have taken all steps necessary to perfect its ownership
of and interest in the Intellectual Property; except with respect
to clauses (i) through (vii) any right, infringement,
acti
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