This Purchase
Agreement (this “ Agreement ”), dated as of
April 3, 2009, is entered into by and between BioMimetic
Therapeutics, Inc., a Delaware corporation (the “
Company ”) and InterWest Partners X, LP, a California
limited partnership (the “ Purchaser
”).
WHEREAS, the
Company proposes to commence an offering to each of the holders of
its common stock, $0.001 par value (the “ Common Stock
”), of record as of the close of business on the record date
to be determined by the Company’s Board of Directors (the
“ Record Date ”), of non-transferable rights
(the “ Rights ”) to subscribe for and purchase
additional shares of Common Stock (the “ New Shares
”) at a subscription price of $8.50, for an aggregate
offering amount of approximately $17,000,000 (the “
Subscription Price ” and, such offering, the “
Rights Offering ”);
WHEREAS, in lieu
of participation in the Rights Offering, the Purchaser wishes to
purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, Shares (as defined below) of
Common Stock from the Company; and
WHEREAS, the
Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities
registration afforded by Section 4(2) of the Securities Act of
1933, as amended (the “ Securities Act ”), and
Rule 506 of Regulation D (“ Regulation D
”) as promulgated by the United States Securities and
Exchange Commission (the “ Commission ”) under
the Securities Act.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants contained
in this Agreement, the Company and the Purchaser agree as
follows:
SECTION 1.
Authorization of Sale of the Shares . Subject to the terms
and conditions of this Agreement, the Company has authorized the
issuance and sale of up to 941,177 shares (the “
Shares ”) of Common Stock of the Company.
SECTION 2.
Agreement to Sell and Purchase the Shares . At the Closing
(as defined in Section 3), the Company will, subject to the
terms of this Agreement, issue and sell to the Purchaser, and the
Purchaser will buy from the Company, upon the terms and conditions
hereinafter set forth, 941,177 Shares of Common Stock for a
purchase price per Share equal to $8.50.
SECTION 3.
Delivery of the Shares at the Closing . The completion of
the purchase and sale of the Shares (the “ Closing
”) shall occur at the offices of Morrison & Foerster LLP,
1290 Avenue of the Americas, New York, New York 10104, within one
business day following the date on which the last of the conditions
for Closing set forth in this Section 3 shall have been
satisfied or waived in accordance with this Agreement, or on such
later date or at such different location or remotely by facsimile
transmission or other electronic means as the parties shall agree
in writing (the “ Closing Date ”).
At the Closing,
the Purchaser shall deliver, in immediately available funds,
$8,000,004.50 by wire transfer to an account designated by the
Company and the Company shall deliver to the Purchaser one or more
stock certificates registered in the name of the Purchaser,
or
in such nominee
name(s) as designated by the Purchaser in writing, representing, in
the aggregate, 941,177 shares of Common Stock, and bearing an
appropriate legend referring to the fact that the Shares were sold
in reliance upon the exemption from registration under the
Securities Act provided by Section 4(2) thereof and
Rule 506 thereunder. The name(s) in which the stock
certificates are to be registered are set forth in the Stock
Certificate Questionnaire attached hereto as part of
Appendix I .
The
Company’s obligation to complete the purchase and sale of the
Shares and deliver such stock certificate(s) to the Purchaser at
the Closing shall be subject to the following conditions, any one
or more of which may be waived by the Company: (a) receipt by
the Company of same-day funds in the full amount of the purchase
price for the Shares being purchased hereunder; (b) the
accuracy of the representations and warranties made by the
Purchaser in Section 5 hereof shall be true and correct
in all material respects as of such Closing, except that any such
representations and warranties shall be true and correct in all
respects where such representation and warranty is qualified with
respect to materiality; and (c) the fulfillment of those
undertakings of the Purchaser contained in this Agreement that are
required to be performed or complied with by the Purchaser on or
before such Closing.
The
Purchaser’s obligation to accept delivery of such stock
certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the following conditions: (a) the accuracy of the
representations and warranties made by the Company in
Section 4 hereof shall be true and correct in all
material respects as of such Closing, except that any such
representations and warranties shall be true and correct in all
respects where such representation and warranty is qualified with
respect to materiality; (b) delivery to the Purchaser by
counsel to the Company of a legal opinion of such counsel, dated as
of the Closing Date and in the form attached hereto as
Exhibit B , executed by such counsel and addressed to
the Purchaser; (c) receipt by the Purchaser of a certificate
executed by the chief executive officer and the general counsel of
the Company, dated as of the Closing Date, to the effect that the
representations and warranties of the Company set forth herein are
true and correct as of the date of this Agreement and as of such
Closing Date (except for representations and warranties that speak
as of a specific date, which representations and warranties shall
be true and correct as of such date) and that the Company has
complied with all the agreements and satisfied all the conditions
herein on its part to be performed or satisfied on or prior to such
Closing Date; (d) the fulfillment of those undertakings of the
Company contained in this Agreement that are required to be
performed or complied with by the Company on or before such
Closing; and (e) receipt by the Purchaser of such other
documents as the Purchaser shall reasonably request. The
Purchaser’s obligations hereunder are expressly not
conditioned on the purchase by any other persons or entities of any
securities of the Company.
SECTION 4.
Representations, Warranties and Covenants of the Company.
The Company hereby represents and warrants to, and covenants with,
the Purchaser as follows:
4.1
Organization and Qualification . The Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation with
corporate power and authority to own or lease its properties and
conduct its business as described in the SEC Reports (as defined
below) and the Company is qualified to do business as a foreign
corporation in each jurisdiction in which qualification is
required, except
2
where failure
to so qualify would not have a Material Adverse Effect (as defined
herein). The Company’s subsidiaries (each a “
Subsidiary ” and collectively the “
Subsidiaries ”) are listed on Exhibit A to
this Agreement and are the only subsidiaries, direct or indirect,
of the Company. Each Subsidiary is a direct or indirect wholly
owned subsidiary of the Company. Each Subsidiary is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority
to own or lease its properties and conduct its business as
currently carried out, and is qualified to do business as a foreign
corporation in each jurisdiction in which qualification is
required, except where failure to so qualify would not have a
Material Adverse Effect.
4.2
Reporting Company; Form S-3 . The Company is not an
“ineligible issuer” (as defined in Rule 405
promulgated under the Securities Act) and is eligible to register
the Shares for resale by the Purchaser on a registration statement
on Form S-3 under the Securities Act. The Company is subject
to the reporting requirements of the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), and has
filed all reports required thereby. Provided the Purchaser is not
deemed to be an underwriter with respect to any shares, to the
Company’s knowledge, there exist no facts or circumstances
(including without limitation any required approvals or waivers or
any circumstances that may delay or prevent the obtaining of
accountant’s consents) that reasonably could be expected to
prohibit or delay the preparation and filing of a registration
statement on Form S-3 (the “ Registration
Statement ”) that will be available for the resale of the
Shares by the Purchaser.
4.3
Authorized Capital Stock . As of the date hereof, the
authorized, issued and outstanding share capital of the Company is
as set forth on Schedule 4.3 hereto. The issued and
outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. Other than employee
stock options, the Company does not have outstanding any options to
purchase, or any preemptive rights or other rights to subscribe for
or to purchase, any securities or obligations convertible into, or
any contracts or commitments to issue or sell, shares of its
capital stock or any such options, rights, convertible securities
or obligations. With respect to each of the Subsidiaries
(i) all the issued and outstanding shares of such
Subsidiary’s capital stock have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities, and are owned by
the Company free and clear of all liens, encumbrances and equities
and claims, and (ii) there are no outstanding options to
purchase, or any preemptive rights or other rights to subscribe for
or to purchase, any securities or obligations convertible into, or
any contracts or commitments to issue or sell, shares of such
Subsidiary’s capital stock or any such options, rights,
convertible securities or obligations.
4.4
Issuance, Sale and Delivery of the Shares . The Shares have
been duly authorized and, when issued, delivered and paid for in
the manner set forth in this Agreement, will be validly issued,
fully paid and nonassessable. No preemptive rights or other rights
to subscribe for or purchase any shares of Common Stock of the
Company exist with respect to the issuance and sale of the Shares
by the Company pursuant to this Agreement.
3
4.5
Due Execution, Delivery and Performance of the Agreements .
The Company has full legal right, corporate power and authority to
enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and
delivered by the Company. This Agreement constitutes a legal, valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
affecting the enforcement of creditors’ rights and the
application of equitable principles relating to the availability of
remedies, and except as rights to indemnity or contribution,
including but not limited to, indemnification provisions set forth
in Section 7.3 of this Agreement may be limited by federal or
state securities law or the public policy underlying such laws. The
execution and performance of this Agreement by the Company and the
consummation of the transactions herein contemplated will not
violate any provision of the certificate of incorporation or bylaws
of the Company or the organizational documents of any Subsidiary
and will not result in the creation of any lien, charge, security
interest or encumbrance upon any assets of the Company or any
Subsidiary pursuant to the terms or provisions of, or will not
conflict with, result in the breach or violation of, or constitute,
either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which
any of the Company or any Subsidiary is a party or by which any of
the Company or any Subsidiary or their respective properties may be
bound or affected and in each case that would have a Material
Adverse Effect or, to the Company’s knowledge, any statute or
any authorization, judgment, decree, order, rule or regulation of
any court or any regulatory body, administrative agency or other
governmental agency or body applicable to the Company or any
Subsidiary or any of their respective properties. No consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental agency or body is
required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement,
except for compliance with the Blue Sky laws and federal securities
laws applicable to the offering of the Shares. For the purposes of
this Agreement the term “ Material Adverse Effect
” shall mean the occurrence, either individually or in the
aggregate, of any material adverse effect on the earnings,
business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and
of the Subsidiaries taken as a whole, except any of the following,
either alone or in combination, shall not be deemed a Material
Adverse Effect: (i) effects caused by changes or circumstances
affecting general market conditions in the U.S. economy or that are
generally applicable to the industry in which the Company operates,
provided that such effects do not adversely affect the Company in a
disproportionate manner, (ii) effects resulting from or
relating to the announcement or disclosure of the sale of the
Shares or other transactions contemplated by this Agreement, or
(iii) effects caused by any event, occurrence or condition
resulting from or relating to the taking of any action in
accordance with this Agreement.
4.6
Accountants . Ernst & Young LLP, who has expressed its
opinion with respect to the consolidated financial statements
contained in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2008, which will be
incorporated by reference into the Registration Statement and the
Prospectus (as defined herein) that forms a part thereof, are
registered independent public accountants as required by the
Securities Act and the rules and regulations promulgated thereunder
(the “ 1933 Act Rules and Regulations ”) and by
the rules of the Public Company Accounting Oversight
Board.
4
4.7
No Defaults or Consents . Neither the execution, delivery
and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute
a default (or an event which with notice or lapse of time or both
would constitute a default) under, except such defaults that
individually or in the aggregate would not cause a Material Adverse
Effect, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or its subsidiaries pursuant to
the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which either the Company or its
subsidiaries or any of their properties or businesses is bound, or
any franchise, license, permit, judgment, decree, order, statute,
rule or regulation applicable to the Company or any of its
subsidiaries or violate any provision of the charter or by-laws of
the Company or any of its subsidiaries, except for such consents or
waivers which have already been obtained and are in full force and
effect.
4.8
Contracts . The material contracts to which the Company is a
party that are filed pursuant to the Securities Act or the Exchange
Act, with the Commission by the Company have been duly and validly
authorized, executed and delivered by the Company and constitute
the legal, valid and binding agreements of the Company, enforceable
by and against it in accordance with their respective terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to
enforcement of creditors’ rights generally, and general
equitable principles relating to the availability of remedies, and
except as rights to indemnity or contribution may be limited by
federal or state securities laws and the public policy underlying
such laws.
4.9
No Actions . There are no legal or governmental actions,
suits or proceedings pending or, to the Company’s knowledge,
threatened against the Company or any Subsidiary before or by any
court, regulatory body or administrative agency or any other
governmental agency or body, domestic, or foreign, which actions,
suits or proceedings, individually or in the aggregate, might
reasonably be expected to have a Material Adverse Effect; and no
labor disturbance by the employees of the Company exists or, to the
Company’s knowledge, is imminent, that might reasonably be
expected to have a Material Adverse Effect. Neither the Company nor
any Subsidiary is a party to or subject to the provisions of any
injunction, judgment, decree or order of any court, regulatory
body, administrative agency or other governmental agency or body
that might have a Material Adverse Effect.
4.10
Properties . The Company and each Subsidiary has good and
marketable title to all the properties and assets described as
owned by it in the consolidated financial statements, free and
clear of all liens, mortgages, pledges, or encumbrances of any kind
except (i) those, if any, reflected in such consolidated
financial statements, or (ii) those that are not material in
amount and do not adversely affect the use made and proposed to be
made of such property by the Company or its Subsidiaries. The
Company and each Subsidiary holds its leased properties under valid
and binding leases. The Company and any Subsidiary owns or leases
all such properties as are necessary to its operations as now
conducted.
5
4.11
No Material Adverse Change . Except as set forth on
Schedule 4.11, since December 31, 2008, (i) the Company
and its Subsidiaries have not incurred any material liabilities or
obligations, indirect, or contingent, or entered into any material
agreement or other transaction that is not in the ordinary course
of business or that could reasonably be expected to result in a
material reduction in the future earnings of the Company;
(ii) the Company and its Subsidiaries have not sustained any
material loss or interference with their businesses or properties
from fire, flood, windstorm, accident or other calamity not covered
by insurance; (iii) the Company and its Subsidiaries have not
paid or declared any dividends or other distributions with respect
to their capital stock and none of the Company or any Subsidiary is
in default in the payment of principal or interest on any
outstanding debt obligations; (iv) there has not been any
change in the capital stock of the Company or its Subsidiaries
other than the sale of the Shares hereunder and shares or options
issued pursuant to employee equity incentive plans or purchase
plans approved by the Company’s Board of Directors, or
indebtedness material to the Company or its Subsidiaries (other
than in the ordinary course of business and any required scheduled
payments); and (v) there has not occurred any event that has
caused or could reasonably be expected to cause a Material Adverse
Effect.
4.12
Intellectual Property . To the Company’s knowledge,
the Company owns, or has obtained valid and enforceable licenses
for, or other legal rights to use, the inventions, patent
applications, patents, utility models, industrial property,
trademarks (both registered and unregistered), trade names, service
marks (both registered and unregistered), service names,
copyrights, trade secrets, customer lists, designs, manufacturing
or other processes, computer software, systems, data compilations,
research results, know-how or other proprietary rights and
information owned or licensed by the Company, or used in the
Company’s business as presently conducted with respect to the
research, development, testing and marketing of Augment Bone Graft,
Augment Injectable Bone Graft, and the other product candidates
(collectively, the “ Products ”), except as set
forth on Schedule 4.12 or where the failure to own,
license or otherwise enjoy such rights would not, individually or
in the aggregate, have a Material Adverse Effect (collectively,
“ Intellectual Property ”). To the
Company’s knowledge, all of such patents, registered
trademarks and registered copyrights owned or licensed by the
Company have been duly registered in, filed in or issued by the
United States Patent and Trademark Office (the “ USPTO
”), the United States Copyright Office or the corresponding
offices of other jurisdictions and have been maintained and renewed
in accordance with all applicable provisions of law and
administrative regulations in the United States and all such other
jurisdictions, except where the failure to do so, individually or
in the aggregate, would not have a Material Adverse Effect. The
Company has taken all steps required in accordance with sound
business practice and business judgment to establish and preserve
its ownership of or rights to all material Intellectual Property.
Except as set forth on Schedule 4.12 , to the
Company’s knowledge, there are no third parties who have or
will be able to establish rights to any Intellectual Property
related to the Products. To the Company’s knowledge, there is
no infringement by third parties of any of the Intellectual
Property. Except as set forth on Schedule 4.12 , to the
Company’s knowledge, there is no pending or threatened
action, suit, proceeding or claim by others challenging the
Company’s rights in or to any Intellectual Property, and the
Company is unaware of any facts that could form a reasonable basis
for any such action, suit, proceeding or claim. Except as set forth
on Schedule 4.12 , there is no pending, or to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity, enforceability or scope
of any Intellectual Property, and the Company is unaware of
any
6
facts that
could form a reasonable basis for any such action, suit, proceeding
or claim. To the Company’s knowledge, the Company has not
formerly and presently is not infringing or violating the
Intellectual Property of any other person. Except as set forth on
Schedule 4.12 , there is no pending, or to the
Company’s knowledge, threatened action, suit, proceeding or
claim by another that the Company infringes or otherwise violates
any Intellectual Property, and the Company is unaware of any facts
that could form a reasonable basis for any such action, suit,
proceeding or claim. To the Company’s knowledge, the
manufacture, use, sale, offer for sale or import of any Product by
the Company would not infringe any claim of any patent of another,
except that of a licensor who has granted the Company a license
under any such patent. No proceeding charging the Company with
infringement of any adversely held Intellectual Property has been
filed. The Company is in compliance with the terms of all
agreements pursuant to which Intellectual Property has been
licensed to the Company. All such agreements are in full force and
effect and there is no default by the Company thereto, and to the
Company’s knowledge, no notice of default thereunder has been
threatened against the Company. To the Company’s knowledge,
sublicenses granted to others are now in compliance with the terms
of all agreements pursuant to which Intellectual Property has been
sublicensed by the Company. To the Company’s knowledge, all
such agreements are in full force and effect and there is no
default by any sublicensee thereto. To the Company’s
knowledge, there is no patent or patent application containing
claims that interfere with the issued or pending claims of any
patent owned by or licensed to the Company. The Company is not
aware of any fact from which it could reasonably be inferred that
an individual associated with the filing and prosecution of any
patent owned by or licensed to the Company failed to disclose to
the USPTO all information known to that individual to be material
to patentability. The Products fall within the scope of one or more
claims of one or more patents owned by or licensed to the Company.
Upon the making, selling, offering for sale or importing into the
United States of any product covered by one or more claims of a
United States patent owned or licensed by the Company, the Company
will comply with the marking and notice requirements of
35 U.S.C. § 287(a).
4.13
Compliance . The Company has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law,
regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order
to conduct its business, except where the absence of such license,
authorization, consent, approval or filing would not, individually
or in the aggregate, have a Material Adverse Effect. The Company is
not in violation of, or in default under, and has not received
notice of any proceedings relating to revocation or modification
of, any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company, except where
such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect.
None of the Company nor its Subsidiaries has been advised, nor do
any of them have any reason to believe, that it is not conducting
business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting
business, including, without limitation, all applicable local,
state and federal environmental laws and regulations, except where
failure to be so in compliance would not have a Material Adverse
Effect.
4.14
Taxes . The Company and each Subsidiary has filed on a
timely basis (giving effect to extensions) all required federal,
state and foreign income and franchise tax
7
returns and has
paid or accrued all taxes shown as due thereon, and none of the
Company or any subsidiary has knowledge of a tax deficiency that
has been or might be asserted or threatened against it that could
have a Material Adverse Effect. All tax liabilities accrued through
the date hereof have been adequately provided for on the books of
the Company.
4.15
Transfer Taxes . On the Closing Date, all stock transfer or
other taxes (other than income taxes) that are required to be paid
in connection with the sale and transfer of the Shares to be sold
to the Purchaser hereunder will have been, fully paid or provided
for by the Company and all laws imposing such taxes will have been
fully complied with.
4.16
Investment Company . The Company is not an “investment
company” or an “affiliated person” of, or
“promoter” or “principal underwriter” for
an investment company, within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations of the
Commission promulgated thereunder.
4.17
Offering Materials . Each of the Company, its directors and
officers has not distributed and will not distribute prior to the
Closing Date any offering material, including any “free
writing prospectus” (as defined in Rule 405 promulgated
under the Securities Act), in connection with the offering and sale
of the Shares.
4.18
Insurance . The Company maintains insurance underwritten by
insurers of recognized financial responsibility, of the types and
in the amounts that the Company reasonably believes is adequate for
its business, including, but not limited to, insurance covering all
real and personal property owned or leased by the Company against
theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, with such deductibles as are customary
for companies in the same or similar business, all of which
insurance is in full force and effect.
4.19
Price of Common Stock . Neither the Company nor any
Subsidiary, nor, to the Company’s knowledge, any of their
respective directors, officers, affiliates or controlling persons,
has taken, and will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or that
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of the Common Stock to
facilitate the sale or resale of the Shares.
4.20
Non-Public Information . The Company has not disclosed to
the Purchaser information that would constitute material non-public
information as of the Closing Date other than the existence of the
transaction contemplated hereby and the Rights Offering.
4.21
Off-Balance Sheet Arrangements . There is no transaction,
arrangement or other relationship between the Company and an
unconsolidated or other off-balance sheet entity that is required
to be disclosed by the Company in its Exchange Act filings and is
not so disclosed or that otherwise would be reasonably likely to
have a Material Adverse Effect. There are no such transactions,
arrangements or other relationships with the Company that may
create contingencies or liabilities that are not otherwise
disclosed by the Company in its Exchange Act filings.
8
4.22
Governmental Permits, Etc . The Company and each Subsidiary
has all franchises, licenses, certificates and other authorizations
from such federal, state or local government or governmental
agency, department or body that are currently necessary for the
operation of the business of the Company as currently conducted,
except where the failure to possess currently such franchises,
licenses, certificates and other authorizations is not reasonably
expected to have a Material Adverse Effect. Neither the Company nor
any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such permit that, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to have a Material Adverse
Effect.
4.23
Financial Statements . The consolidated financial statements
of the Company and the related notes and schedules thereto included
in its Exchange Act filings fairly present the financial position,
results of operations, stockholders’ equity and cash flows of
the Company and its consolidated Subsidiaries at the dates and for
the periods specified therein. Such financial statements and the
related notes and schedules thereto have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as
otherwise noted therein) and all adjustments necessary for a fair
presentation of results for such periods have been made;
provided, however , that the unaudited financial
statements are subject to normal year-end audit adjustments (which
are not expected to be material) and do not contain all footnotes
required under generally accepted accounting principles.
4.24
Listing Compliance . The Company is in compliance with the
requirements of the NASDAQ Global Market for continued listing of
the Common Stock thereon. The Company has taken no action designed
to, or likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or the listing of the
Common Stock on the NASDAQ Global Market, nor has the Company
received any notification that the Commission or the NASDAQ Global
Market is contemplating terminating such registration or listing.
The transactions contemplated by this Agreement will not contravene
the rules and regulations of the NASDAQ Global Market. The Company
will comply with all requirements of the NASDAQ Global Market with
respect to the issuance of the Shares and shall cause the Shares to
be listed on the NASDAQ Global Market and listed on any other
exchange on which the Company’s common stock is listed on or
before the Closing Date.
4.25
Internal Accounting Controls . The Company maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for 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 existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company has disclosure controls and procedures (as defined in
Rules 13a-14 and 15d-14 under the Exchange Act) that are
designed to ensure that material information relating to the
Company is made known to the Company’s principal executive
officer and the Company’s principal financial officer or
persons performing similar functions. The Company is otherwise in
compliance in all material respects
9
with all
applicable provisions of the Sarbanes-Oxley Act of 2002, as amended
and the rules and regulations promulgated thereunder.
4.26
Foreign Corrupt Practices . Neither the Company, nor any
Subsidiary, nor, to the knowledge of the Company, any director,
officer, agent, employee or other Person acting on behalf of the
Company or any Subsidiary has, in the course of its actions for, or
on behalf of, the Company (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expenses relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or candidate for any federal, state or foreign office in
violation of any law; (iii) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any
foreign or domestic government official or employee.
4.27
Employee Relations . Neither the Company nor any Subsidiary
is a party to any collective bargaining agreement or employs any
member of a union. The Company and each Subsidiary believe that
their relations with their employees are good. The Company is not
engaged in any unfair labor practice except for matters which would
not, individually or in the aggregate, have a Material Adverse
Effect, (i) there is (A) no unfair labor practice
complaint pending or, to the Company’s knowledge, threatened
against the Company before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or threatened,
(B) no strike, labor dispute, slowdown or stoppage pending or,
to the Company’s knowledge, threatened against the Company
and (C) no union representation dispute currently existing
concerning the employees of the Company, and (ii) to the
Company’s knowledge, (A) no union organizing activities
are currently taking place concerning the employees of the Company
and (B) there has been no violation of any federal, state,
local or foreign law relating to discrimination in the hiring,
promotion or pay of employees or any applicable wage or hour laws.
No executive officer of the Company (as defined in
Rule 501(f) promulgated under the Securities Act) has
notified the Company that such officer intends to leave the Company
or otherwise terminate such officer’s employment with the
Company. No executive officer of the Company, to the knowledge of
the Company, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition
agreement, or any other agreement or any restrictive covenant, and
the continued employment of each such executive officer does not
subject the Company or any Subsidiary to any liability with respect
to any of the foregoing matters.
4.28
Environmental Matters . The Company and its properties,
assets and operations is and has been in compliance with, and holds
all permits, authorizations and approvals required under,
Environmental Laws (as defined below), except to the extent
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