PLACEMENT AGENT AGREEMENT

 

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                                                                     EXHIBIT 1.1

 

                                1,954,416 SHARES

 

                          NORTHFIELD LABORATORIES INC.

 

                             SHARES OF COMMON STOCK

                                 ($.01 PAR VALUE)

 

                            PLACEMENT AGENT AGREEMENT

 

                                                                    May 12, 2004

 

SG COWEN & CO., LLC

1221 Avenue of the Americas

New York, New York 10020

 

Dear Sirs:

 

      NORTHFIELD LABORATORIES 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 1,954,416 shares of Common Stock, $.01 par value

(the "COMMON STOCK"), of the Company. The aggregate of 1,954,416 shares so

proposed to be sold is hereinafter referred to as the "STOCK." 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 Stock from the Company in connection with

      the proposed offering of the Stock (the "OFFERING"). So long as this

      Agreement shall remain in effect, the Company shall not, without the prior

      consent of the Placement Agent, solicit or accept offers to purchase Stock

      otherwise than through the Placement Agent.

 

      (b) The Placement Agent agrees, as agent of the Company, to use its

      commercially reasonable efforts to solicit offers to purchase the Stock

      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

 

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      to purchase Stock 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 Stock for its own

      account and, in soliciting purchases of Stock, 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

      Stock as principal so long as the fact that the Placement Agent (or its

      affiliate) is a Purchaser is fully disclosed to the Company and the

      Company approves such purchase of Stock in accordance with Section 1(c).

 

      (c) Subject to the provisions of this Section 1, offers for the purchase

      of Stock 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 Stock received by it as agent

      of the Company. The Company shall have the sole right to accept offers to

      purchase the Stock and may reject any such offer, in whole or in part. The

      Placement Agent shall have the right, in its discretion reasonably

      exercised, subject to providing prior notice to the Company, to reject any

      offer to purchase Stock 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 Stock 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 the Closing Date (as defined

      below) 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 seven percent (7%) of the gross

      proceeds received by the Company from the sale of the Stock on such

      Closing Date. In addition, on the Closing Date (as defined below) the

      Company will issue to SG Cowen a warrant (the "PLACEMENT AGENT'S

      WARRANT"), in the form of Exhibit B attached hereto, to purchase up to the

      number of shares of Common Stock equal to three percent (3%) of the

      aggregate number of shares of Stock sold pursuant to this Agreement. The

      Placement Agent's Warrant will not be exercisable for one (1) year, will

      have a term of five years and will be exercisable at a price per share

      equal to the average closing price of our Common Stock as reported on the

      Nasdaq National Market for the three trading day period ending on and

      including the date of this Agreement. The shares of Common Stock issuable

      to SG Cowen upon exercise of the Placement Agent's Warrant are referred to

      herein as the "WARRANT STOCK."

 

      (f) No Stock 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 Stock shall have been delivered to the Purchaser

 

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      thereof against payment by such Purchaser. If the Company shall default in

      its obligations to deliver Stock 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.

 

2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company and its

subsidiaries represents and warrants to, and agrees 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. 333-106615),

      which became effective as of July 3, 2003, for the registration under the

      Securities Act of the Stock (the "INITIAL REGISTRATION STATEMENT"). The

      Company may file a registration statement increasing the amount of

      securities registered under the Initial Registration Statement (a "RULE

      462(b) REGISTRATION STATEMENT") pursuant to Rule 462(b) under the

      Securities Act and the rules and regulations (the "RULES AND REGULATIONS")

      of the Commission promulgated thereunder, which will become effective

      immediately upon filing. Such Initial Registration Statement (together

      with the Rule 462(b) Registration Statement, if any) meets the

      requirements set forth in Rule 415(a)(1)(x) under the Securities Act and

      complies in all other material respects with said Rule. The Company will

      file with the Commission pursuant to Rule 424(b) under the Securities Act

      and the Rules and Regulations a supplement to the form of prospectus

      included in such Initial Registration Statement relating to the placement

      of the Stock and the plan of distribution thereof and has advised the

      Placement Agent of all further information (financial and other) with

      respect to the Company required to be set forth therein. Such Initial

      Registration Statement and the Rule 462(b) Registration Statement, if any,

      including the exhibits thereto, as amended at the date of this Agreement,

      are hereinafter collectively called the "REGISTRATION STATEMENTS"; such

      prospectus in the form in which it appears in the Initial 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 Statements, 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 Statements, 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

 

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      and schedules and other information which is "contained," "included,"

      "described," "set forth" or "stated" in the Registration Statements, 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 Statements, the Base

      Prospectus or the Prospectus Supplement, as the case may be. No stop order

      suspending the effectiveness of the Registration Statements 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.

 

      (b) The Initial Registration Statement (and any further documents to be

      filed with the Commission, including any Rule 462(b) Registration

      Statement) contains all exhibits and schedules as required by the

      Securities Act. Each of the Initial Registration Statement (and the Rule

      462(b) Registration Statement, if any) 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 effective 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 Statements or the Prospectus

      Supplement. No post-effective amendment to the Registration Statements

      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.

 

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      There are no documents required to be filed with the Commission in

      connection with the transaction contemplated hereby that have not been

      filed as required pursuant to the Securities Act or 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

      Statements, 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

      Statements and of each consent and certificate of experts filed as a part

      thereof, and conformed copies of the Registration Statements (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 Closing Date, any offering material in connection with the

      offering and sale of the Stock other than the Base Prospectus, the

      Prospectus Supplement, the Registration Statements, copies of the

      documents incorporated by reference therein and any other materials

      permitted by the Securities Act.

 

      (d) The Company and each of its subsidiaries have 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 have 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 subsidiaries taken as a

      whole (a "MATERIAL ADVERSE EFFECT").

 

      (e) The Stock to be issued and sold by the Company hereunder and under the

      Subscription Agreements has 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 and will 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 shares of

      capital stock of the Company have been duly and validly authorized and

      issued, are fully paid and non-assessable and conform to the description

      thereof contained in the Base Prospectus and the Prospectus Supplement

      and, except as set forth in the Base Prospectus and the Prospectus

      Supplement, no options, warrants or other rights to purchase, agreements

      or other obligations to issue, or rights to

 

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      convert any obligations into or exchange any securities for, shares of

      capital stock of, or ownership interests in, the Company are outstanding.

 

      (g) The Company has no subsidiaries and holds no interest in the stock or

      other equity securities of any other entity.

 

      (h) The Company has the full right, power and authority to enter into this

      Agreement and each of the Subscription Agreements and to perform and to

      discharge its obligations hereunder and thereunder; and each of this

      Agreement and the Subscription Agreements 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 Company has the full right, power and authority to enter into the

      Placement Agent's Warrant and to perform and discharge its obligations

      thereunder. The Placement Agent's Warrant has been duly and validly

      authorized by the Company and upon delivery to the Placement Agent upon

      the Closing Date will be duly issued and constitute a legal, valid and

      binding obligation of the Company. The Warrant Stock has been duly

       authorized and reserved for issuance upon the exercise of the Placement

      Agent's Warrant and when issued upon payment of the exercise price

      therefor will be validly issued, fully paid and nonassessable.

 

      (j) The execution, delivery and performance of this Agreement, the

      Subscription Agreements and the Placement Agent's Warrant 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 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 of the Company or any of its subsidiaries 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 any of its subsidiaries or any of their properties or assets.

 

      (k) 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 Statements, 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 Statements are accurate and complete

      in all material respects.

 

      (l) All existing minute books of the Company and each of its subsidiaries,

      including all existing records of all meetings and actions of the board of

       directors (including, Audit, Compensation and Nomination/Corporate

      Governance 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

 

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      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.

 

      (m) 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 Placement

      Agent's Warrant, except such as have been obtained or made under the

      Securities Act or the Exchange Act and such as may be required under the

      securities, or blue sky, laws of any jurisdiction in connection with the

      offer and sale of the Stock and the Warrant Stock by the Company in the

      manner contemplated herein and in the Base Prospectus and the Prospectus

      Supplement.

 

      (n) Except as described in the Base Prospectus and the Prospectus

      Supplement, no person or entity has the right to require registration of

      shares of Common Stock or other securities of the Company because of the

      filing or effectiveness of the Registration Statements or otherwise,

      except for persons and entities who have expressly waived such right or

      who have been given 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 under the terms and conditions of

      any existing agreement to which the Company is a party or otherwise bound

      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 180 days after the date hereof.

 

      (o) The financial statements, together with the related notes and

      schedules, of the Company included in the Base Prospectus, the Prospectus

      Supplement or the Registration Statements, or incorporated by reference

      therein, as the case may be, present fairly the financial condition,

      results of operations and cash flows of the Company as of the dates and

      for the periods indicated, comply as to form with the applicable

      accounting requirements of the Securities Act and have been prepared in

      conformity with generally accepted accounting principles applied on a

      consistent basis throughout the periods involved.

 

      (p) 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 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,

      singularly or in the aggregate, if determined adversely to the Company or

      any of its subsidiaries, might have a Material Adverse Effect or would

      prevent or adversely affect the ability of the Company to perform its

      obligations under this Agreement or the Placement Agent's Warrant; and to

      the best of the Company's knowledge, no such proceedings are threatened or

      contemplated by governmental authorities or threatened by others.

 

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      (q) 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, claims and defects that may result

      in a Material Adverse Effect.

 

      (r) Neither the Company nor any of its subsidiaries 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 subsidiaries or any of

      its properties, as applicable (including, without limitation, those

      administered by the Food and Drug Administration of the U.S. Department of

      Health and Human Services (the "FDA") or by any foreign, federal, state or

      local governmental or regulatory authority performing functions similar to

      those performed by the FDA), 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.

 

      (s) 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.

 

      (t) 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 any

      subsidiary plans to terminate employment with the Company or any such

      subsidiary.

 

      (u) Each of the Company and its subsidiaries 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 subsidiaries 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"

 

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      (as defined in Section 406 of ERISA, or Section 4975 of the Internal

      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. The Company and each of its subsidiaries 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.

 

      (v) The Company and each of its subsidiaries is insured by insurers of

      recognized financial responsibility against such losses and risks and in

      such amounts as are prudent and customary in the businesses in which they

      are engaged; all policies of insurance and fidelity or surety bonds

      insuring the Company and each of its subsidiaries and their businesses,

      assets, employees, officers and directors are in full force and effect;

      the Company and each of its subsidiaries is in compliance with the terms

      of such policies and instruments in all material respects; and there are

      no claims by the Company and each of its subsidiaries under any such

      policy or instrument as to which any insurance company is denying

      liability or defending under a reservation of rights clause; the Company

      and each of its subsidiaries has not been refused any insurance coverage

      sought or applied for; and the Company and each of its subsidiaries has no

      reason to believe that it will not be able to renew its existing insurance

      coverage as and when such coverage expires or to obtain similar coverage

      from similar insurers as may be necessary to continue its business at a

      cost that would not have a Material Adverse Effect, except as set forth in

      the Base Prospectus or the Prospectus Supplement.

 

      (w) The Company and each of its subsidiaries has made all filings,

      applications and submissions required by, and possesses all approvals,

      licenses, certificates, certifications, clearances (including, without

      limitation, clearance from the FDA to proceed with a Phase III

      pre-hospital trial with PolyHeme(R), the Company's oxygen-carrying blood

      substitute, subject to obtaining institutional review board approval at

      the trial sites participating in the Company's clinical trials and

      compliance with the FDA's public notice and other requirements for

      conducting clinical trials pursuant to a waiver of informed consent),

      consents, exemptions, marks, notifications, orders, permits and other

      authorizations issued by, the appropriate federal, state or foreign

      regulatory authorities (including, without limitation, the FDA, and any

      other foreign, federal, state or local government or regulatory

      authorities performing functions similar to those performed by the FDA)

      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 the Company and each of its

      subsidiaries 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 the Company and each of its subsidiaries has not received

 

                                       9

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      any notice of proceedings relating to the limitation, revocation,

      cancellation, suspension, modification or non-renewal of any such Permit

      which, singly 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.

 

      (x) KPMG LLP, who have 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 Statements, 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.

 

      (y) The Company and each of its subsidiaries 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.

 

      (z) There is and has been no failure on the part of the Company or any of

      the Company's directors or officers, in their capacities as such, to

      comply in all material respects with any provision of the Sarbanes-Oxley

      Act of 2002 and the rules and regulations promulgated in connection

      therewith (the "SARBANES-OXLEY ACT"), including Section 402 related to

      loans and Sections 302 and 906 related to certifications.

 

       (aa) The Company and each of its subsidiaries 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.

 

      (bb) Neither the Company nor any of its subsidiaries nor any of their

      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.

 

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      (cc) The Company and each of its subsidiaries (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.

 

      (dd) In the ordinary course of its business, the Company periodically

      reviews the effect of Environmental Laws on the business, operations and

      properties of the Company and each of its subsidiaries, 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, singly 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.

 

      (ee) The Company and its subsidiaries 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 (collectively, the

      "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. Except as set forth in the Base

      Prospectus and the Prospectus Supplement, (a) there are no rights of third

      parties to any such Intellectual Property; (b) to the best of the

      Company's knowledge, there is no infringement by third parties of any such

      Intellectual Property; (c) there is no pending or, to the best of the

      Company's knowledge, threatened action, suit, proceeding or claim by

      others challenging the Company's and its subsidiaries' 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; (d) there is no pending

      or, to the best of the Company's knowledge, threatened action, suit,

      proceeding or claim by others challenging the validity or scope of any

      such Intellectual Property; (e) there is no pending or, to the best of the

 

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      Company's knowledge, threatened action, suit, proceeding or claim by

      others that the Company and its subsidiaries 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; (f) to the Company's knowledge, there

      is no third-party U.S. patent or published U.S.