EXHIBIT
4.5
ECO2 PLASTICS, INC.
SECURITIES SUBSCRIPTION AGREEMENT
June
4, 2008
This
Securities Subscription Agreement (the “ Agreement
”) is made as of June 4, 2008 (the “
Effective
Date ”), by and among ECO2 PLASTICS, INC., a
Delaware corporation (the “ Company
”), and each of those persons and entities, severally
and not jointly, listed as a Purchaser on the Schedule of
Purchasers attached as Schedule
I hereto. Such persons and entities
are hereinafter collectively referred to herein as “
Purchasers
” and each individually as a “ Purchaser
.
”
AGREEMENT
In
consideration of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Company and each
Purchaser (severally and not jointly) hereby agree as
follows:
1.
The Securities . Subject to the terms and
conditions herein contained, the Company proposes to issue and sell
to the Purchasers the following shares (the “ Shares
”) of preferred stock: (a) 336,240,039 shares of its
Series B-1 Convertible Preferred Stock (the “
Series B-1
Stock ”) and (b) up to 140,000,000 shares of its
Series B-2 Convertible Preferred Stock (the “
Series B-2
Stock ” and, together with the Series B-1 Stock, the
“ Series B
Stock ”), which shall each be convertible into shares
(the “ Conversion
Shares ” ) of the
Company’s Common Stock (the “ Common
Stock ” ) in accordance
with the formula set forth in the Series B Certificate of
Designations further described below. The rights,
preferences and privileges of the Series B-1 Stock and Series
B-2 Stock are as set forth in the Certificate of Designations of
Series B-1 and Series B-2 Preferred Stock as filed with the
Secretary of State of the State of Delaware (the “
Series B
Certificate of Designations ”) in the form attached
hereto as Exhibit A-1
. The Shares are sometimes herein referred to as the
“ Securities
.
” This Agreement, the Series B Certificate of
Designations and the Investor Rights Agreement, in the form
attached hereto as Exhibit B (the
“ Investor
Rights Agreement ”), are sometimes herein collectively
referred to as the “ Transaction
Documents . ”
The
Securities will be offered and sold to the Purchasers without
such offers and sales being registered under the Securities
Act of 1933, as amended (together with the rules and
regulations of the Securities and Exchange Commission (the
“ SEC
”) promulgated thereunder, the “ Securities
Act ”), in reliance on exemptions
therefrom.
In
connection with the sale of the Securities, the Company has
made available (including electronically via the SEC's EDGAR
system) to Purchasers its periodic and current reports, forms,
schedules, proxy statements and other documents (including
exhibits and all other information incorporated by reference)
filed with the SEC under the Securities Exchange Act of 1934,
as amended (the “ Exchange
Act ”). These reports, forms,
schedules, statements, documents, filings and amendments, are
collectively referred to as the “ SEC
Document s
.
” All references in this Agreement to
financial statements and schedules and other information which
is “contained,” “included” or
“stated” in the SEC Documents (or other references
of like import) shall be deemed to mean and include all such
financial statements and schedules, documents, exhibits and
other information which is incorporated by reference in the
SEC Documents.
2.
Representations and Warranties of the Company
. Except as set forth in the SEC Documents and on the
Disclosure Schedule attached hereto and made a part hereof (the
“ Disclosure
Schedule ”), the Company represents and warrants to
and agrees with Purchasers as follows:
(a)
Except
as set forth in Section 2(a) of the Disclosure Schedule, the
Company has filed in a timely manner all documents that the Company
was required to file with the SEC under the Exchange Act since
becoming subject to the requirements of the Exchange
Act. The SEC Documents as of their respective dates did
not and will not as of the Closing Date (as defined below) (after
giving effect to any updated disclosures therein), contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading. The SEC Documents and the documents
incorporated or deemed to be incorporated by reference therein, at
the time they were filed or hereafter are filed with the SEC,
complied and will comply, at the time of filing, in all material
respects with the requirements of the Securities Act and/or the
Exchange Act, as the case may be, as applicable.
(b)
The
Company has no subsidiaries. The Company has been duly
incorporated and is validly
existing in good standing as a corporation under the laws of its
jurisdiction of incorporation, with the requisite corporate power
and authority to own its properties and conduct its business as now
conducted as described in the SEC Documents and is duly qualified
to do business as a foreign corporation in good standing in all
other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not, individually or in the aggregate, have a material adverse
effect on the business, condition (financial or other), earnings,
management, properties, prospects or results of operations of the
Company (any such event, a “ Material
Adverse Effect ”); the Company does not own directly
or indirectly any of the capital stock or other equity or long-term
debt securities of or have any equity interest in any other
individual, corporation, partnership, limited liability company,
joint venture, trust or unincorporated organization or a government
or agency or political subdivision thereof (a “ Person
”); all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully
paid and non-assessable, have been issued in compliance with all
federal and state securities laws, and were not issued in violation
of or subject to any preemptive or other rights to subscribe for or
purchase securities, and are owned free and clear of all liens,
encumbrances, equities, and restrictions on transferability (other
than those imposed by the Securities Act and the state securities
or “Blue Sky” laws); except as set forth in Section
2(b) of the Disclosure Schedule, no options, warrants or other
rights to purchase from the Company, agreements or other
obligations of the Company to issue or other rights to convert any
obligation into, or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding; and
there is no agreement, understanding or arrangement between the
Company and any of its stockholders or any other Person relating to
the ownership or disposition of any capital stock of the Company or
the election of directors of the Company or the governance of the
Company’s affairs, and, if any, such agreements,
understandings and arrangements will not be breached or violated as
a result of the execution and delivery of, or the consummation of
the transactions contemplated by, the Transaction Documents; there
are no bonds, debentures, notes or other indebtedness having
general voting rights (or convertible into securities having such
rights) (“ Voting
Debt ”) of the Company issued and outstanding; except
as set forth in Section 2(b) of the Disclosure Schedule, there are
no existing options, warrants, calls, subscriptions or other
rights, agreements, arrangements or commitments of any character,
relating to the issued or unissued capital stock of the Company,
obligating the Company to issue, transfer, sell, redeem, purchase,
repurchase or otherwise acquire or cause to be issued, transferred,
sold, redeemed, purchased, repurchased or otherwise acquired any
capital stock or Voting Debt of, or other equity interest in, the
Company or securities or rights convertible into or exchangeable
for such shares or equity interests or obligations of the Company
to grant, extend or enter into any such option, warrant, call,
subscription or other right, agreement, arrangement or commitment;
the issuance of the Shares or the Conversion Shares, or the
Warrants described in Section 4(h) hereof will not give rise to any
preemptive rights or rights of first refusal on behalf of any
Person or result in the triggering of any anti-dilution or other
similar right; except as set forth in Section 2(b) of the
Disclosure Schedule, there are no agreements or arrangements under
which the Company is obligated to register the sale of any of their
securities under the Securities Act; there are no securities,
agreements, documents or instruments containing anti-dilution
provisions that will be triggered by the issuance of the Shares,
the Conversion Shares and the Warrants; the Company has made
available to Purchasers a true, correct and complete copy of its
certificate of incorporation and bylaws, each as amended and as in
effect on the date hereof.
(c)
The
authorized capital stock of the Company (immediately prior to the
Closing Date) consists of 1,000,000,000 shares of Common Stock and
500,000,000 shares of preferred stock, par value $.001 per share
(the “ Preferred
Stock ”), and 152,843,414 shares of Preferred Stock
have been designated as the Series A Convertible Preferred Stock
(the “ Series A
Preferred Stock ”), 336,240,039 shares of Preferred
Stock have been designated as Series B-1 Stock, and 10,916,547
shares of Preferred Stock have been designated as Series B-2
Stock. The Certificates of Designations (as defined
below) setting forth the rights, preferences and privileges of such
Preferred Stock have been filed with the Secretary of State of the
State of Delaware, and are effective as of the Closing
Date. The issued and outstanding capital stock of the
Company, as of immediately prior to the Closing Date and as of the
Closing Date, is as set forth in Section 2(c) of the Disclosure
Schedule attached hereto (the “ Company
Capitalization ”) (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in
the SEC Documents or upon exercise of outstanding options, warrants
and other convertible securities described in the SEC
Documents).
(d)
The
Company has the requisite corporate power and authority to execute,
deliver and perform its obligations under the Transaction
Documents. Each of the Transaction Documents has been
duly and validly authorized by the Company and, when executed and
delivered by the Company, will constitute a valid and legally
binding agreement of the Company, enforceable against the Company
in accordance with its terms except as the enforcement thereof may
be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors’
rights generally or (B) general principles of equity and the
discretion of the court before which any proceeding therefore may
be brought (regardless of whether such enforcement is considered in
a proceeding at law or in equity).
(e)
The
Shares have been duly authorized and, when issued upon payment
thereof in accordance with this Agreement, will have been validly
issued, fully paid and non-assessable. The Conversion
Shares issuable have been duly authorized and validly reserved for
issuance, and when issued upon conversion of the Shares in
accordance with the terms of the Series B Certificate of
Designations, will have been validly issued, fully paid and
non-assessable. The Common Stock of the Company conforms
to the description thereof contained in the SEC
Documents. No stockholder of the Company or other Person
has any preemptive, co-sale rights, rights of first refusal or any
other similar rights with respect to the Warrants, the Shares or
the Common Stock.
(f)
No
consent, approval, order or authorization of, license,
registration, qualification, exemption or filing with any court or
governmental agency or body or third party is required for the
performance of the Transaction Documents by the Company or for the
consummation by the Company of the transactions contemplated
thereby, or the application of the proceeds of the issuance of the
Securities as described in this Agreement, except for such
consents, approvals, authorizations, licenses, qualifications,
exemptions or orders (i) as have been obtained on or prior to
the Closing Date, or (ii) as are not required to be obtained
on or prior to the Closing Date that will be obtained when
required, including without limitation the filing of one or more
Registration Statements and all amendments thereto with the SEC as
contemplated by the Investor Rights Agreement.
(g)
All
consents, approvals and waivers from the holders of the Prior
Securities (as defined below), that are required for the
performance of the Transaction Documents by the Company or for the
consummation by the Company of the transactions contemplated
thereby, or the application of the proceeds of the issuance of the
Securities as described in this Agreement, has been obtained on or
prior to the Closing Date and is set forth in Section 2(g) of the
Disclosure Schedule.
(h)
The
Company is not (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document),
(ii) in breach or violation of any statute, judgment, decree,
order, rule or regulation applicable to it or any of its properties
or assets, or (iii) in default (nor has any event occurred
which with notice or passage of time, or both, would constitute a
default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease,
license, franchise agreement, permit, certificate or agreement or
instrument to which it is a party or to which it is
subject.
(i)
The
execution, delivery and performance by the Company of the
Transaction Documents and the consummation by the Company of the
transactions contemplated thereby and the fulfillment of the terms
thereof will not (a) violate, conflict with or constitute or
result in a breach of or a default under (or an event that, with
notice or lapse of time, or both, would constitute a breach of or a
default under) any of (i) the terms or provisions of any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, permit, certificate or
agreement or instrument to which the Company is a party or to which
any of its properties or assets are subject, (ii) the
certificate of incorporation, the Certificates of Designations or
bylaws of the Company (or similar organizational document) or
(iii) any statute, judgment, decree, order, rule or regulation
of any court or governmental agency or other body applicable to the
Company or any of its properties or assets or (b) result in
the imposition of any lien upon or with respect to any of the
properties or assets now owned or hereafter acquired by the
Company; with respect to (a)(i), (a)(iii) and (b) only, which
violation, conflict, breach, default or lien would, individually or
in the aggregate, have a Material Adverse Effect.
(j)
The
audited financial statements included in the SEC Documents present
fairly the financial position, results of operations, cash flows
and changes in shareholders’ equity of the Company, at the
dates and for the periods to which they relate and have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis; the interim un-audited
financial statements included in the SEC Documents present fairly
the financial position, results of operations and cash flows of the
Company, at the dates and for the periods to which they relate
subject to year-end audit adjustments and have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis with the audited financial statements included
therein; the selected financial and statistical data included in
the SEC Documents present fairly the information shown therein and
have been prepared and compiled on a basis consistent with the
audited financial statements included therein, except as otherwise
stated therein; and each of the auditors previously engaged by the
Company or to be engaged in the future by the Company is an
independent certified public accountant as required by the
Securities Act. Except as set forth in Section 2(j) of
the Disclosure Schedule and the SEC Documents, since the date of
the latest interim un-audited balance sheet of the Company included
in the SEC Documents, (i) there has been no material change in
total liabilities of the Company and (ii) there have been no
liabilities incurred outside of the ordinary course of
business. Except as set forth in the SEC Documents,
immediately after the Closing Date, the Company will not have any
indebtedness, except indebtedness incurred in the ordinary course
of business and consistent with past practices.
(k)
There
is not pending or, to the knowledge of the Company, threatened, any
action, suit, proceeding, inquiry or investigation, governmental or
otherwise, to which the Company is a party, or to which its
properties or assets are subject, before or brought by any court,
arbitrator or governmental agency or body, that, if determined
adversely to the Company, would, individually or in the aggregate,
have a Material Adverse Effect or that seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance or
sale of the Securities to be sold hereunder or the application of
the proceeds therefrom or the other transactions described in the
SEC Documents. The Company is not 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.
(l)
Intellectual
Property.
(i)
General. Section
2(l)(i) of the Disclosure Schedule sets forth with respect to the
Company Intellectual Property Rights: (A) for each patent and
patent application, the patent number or application serial number
for each jurisdiction in which the patent or application has been
filed, the date filed or issued and the present status thereof; (B)
for each registered trademark, trade name or service mark, the
application serial number or registration number for each
applicable country, province and/or state and the class of goods
covered; (C) for each URL or domain name, the registration date,
any renewal date and name of registry; and (D) for each registered
copyrighted work, the number and date of registration for each by
country, province and/or state in which a copyright application has
been registered. In addition, true and correct copies of
all applications filed and registrations (including all pending
applications and application related documents) related to the
Intellectual Property Rights listed on Section 2(l)(i) of the
Disclosure Schedule have been provided or made available to
Purchasers.
(ii)
Sufficiency. The
Intellectual Property Rights and Technology owned or licensed by
the Company constitute all Intellectual Property Rights and
Technology necessary for the conduct of the Company’s
business as presently conducted, including the design, manufacture,
license and sale of all products currently under development or in
production.
(iii)
Royalties
and Licenses. Except pursuant to the licenses listed in
Section 2(l)(iii) of the Disclosure Schedule, the Company has no
obligation to compensate or account to any person for the use of
any of the Intellectual Property Rights or Technology used by the
Company in the conduct of the business. Section
2(l)(iii) of the Disclosure Schedule sets forth all third party
components, whether hardware, firmware or software, that are
incorporated in or provided by the Company with its products, or
that are otherwise necessary for the manufacture of the
Company’s products. Section 2(l)(iii) of the
Disclosure Schedule lists all in-licenses of the Intellectual
Property Rights and Technology applicable to the Company’s
products, other than standard, off-the-shelf software commercially
available on standard terms from third-party vendors.
(iv)
Ownership. The
Company (A) owns all right, title and interest in and to the
Company Intellectual Property Rights and Company Technology,
including the Intellectual Property Rights and Technology listed in
Section 2(l)(iv) of the Disclosure Schedule, free and clear of any
liens, claims or encumbrances and (B) has a valid and enforceable
right or license to use all other Intellectual Property Rights and
Technology used in the conduct of the business, and all such
licensed Intellectual Property Rights and rights to use Technology
will not cease to be valid and enforceable rights of the Company by
reason of the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated
hereby. Without limiting the foregoing, the Company
Intellectual Property Rights and Company Technology have been: (1)
developed by employees of the Company within the scope of their
employment and who have assigned their rights to the Company
pursuant to enforceable written agreements; (2) developed by
independent contractors or agents who have assigned their rights to
the Company pursuant to enforceable written agreements or (3)
otherwise acquired by the Company from a third party who has
assigned all the Intellectual Property Rights and ownership of all
Technology it has developed on the Company’s behalf to the
Company.
(v)
Absence
of Claims; Non-infringement. No claim or legal
proceeding has been instituted or is pending against the Company,
or, to the knowledge of the Company, is threatened, that challenges
the right of the Company with respect to the use or ownership of
the Company Intellectual Property Rights or Company
Technology. Without limiting the foregoing, no
interference, opposition, reissue, reexamination, legal proceeding
or other proceeding is or has been pending or, to the best of the
Company’s knowledge, threatened, in which the scope, validity
or enforceability of any of the Company Intellectual Property
Rights is being, has been or could reasonably be expected to be
contested or challenged. The Company’s past and
present use of the Company Intellectual Property Rights or Company
Technology does not infringe upon, misappropriate, breach or
otherwise conflict with the rights of any other Person anywhere in
the world. The Company has not received any notice
alleging, and otherwise has no knowledge of (A) the invalidity of,
or any limitation on the Company’s right to use, any of the
Company Intellectual Property Rights or Company Technology or of
(B) the alleged infringement, misappropriation or breach of any
Intellectual Property Rights of others by the
Company. The Company Intellectual Property Rights and
Company Technology are not subject to any judgment, decree, order,
writ, award, injunction or determination of an arbitrator, court or
other governmental authority affecting the rights of the Company
with respect thereto. To the knowledge of the Company,
no person has interfered with, infringed upon or misappropriated
any of the Company Intellectual Property Rights, or is currently
doing so.
(vi)
Licenses
to Third Parties. Section 2(l)(vi) of the Disclosure
Schedule lists all of the contracts pursuant to which any person
has been granted any license under, or otherwise has received or
acquired any right (whether or not currently exercisable) or
interest in, any Company Intellectual Property Rights or Company
Technology. The Company is not bound by, and no Company
Intellectual Property Rights are subject to, any contract
containing any covenant or other provision that in any way limits
or restricts the ability of the Company to use, exploit, assert or
enforce any of its Intellectual Property Rights anywhere in the
world. Without limiting the foregoing, the Company has
not granted any exclusive licenses to the Company Intellectual
Property Rights or Company Technology.
(vii)
Protection
of Intellectual Property Rights. All of the
registrations and pending applications to governmental or
regulatory bodies with respect to the Company Intellectual Property
Rights have been timely and duly filed, prosecution for such
applications has been attended to, all maintenance and related fees
have been paid and the Company has taken all other actions required
to maintain their validity and effectiveness. The
Company has taken all steps reasonably necessary or appropriate
(including, entering into written confidentiality and nondisclosure
agreements with officers, directors, subcontractors, employees,
licensees and customers) to safeguard the Company Intellectual
Property Rights and maintain the secrecy and confidentiality of
trade secrets that are material to the Company. Without
limiting the foregoing, (A) there has been no misappropriation of
any trade secrets or other confidential Intellectual Property
Rights or Technology used in connection with the business by any
person; (B) no employee, independent contractor or agent of the
Company has misappropriated any trade secrets of any other person
in the course of performance as an employee, independent contractor
or agent of the business and (C) no employee, independent
contractor or agent of the Company is in default or breach of any
term of any employment agreement, nondisclosure agreement,
assignment of invention agreement or similar agreement or contract
relating in any way to the protection, ownership, development, use
or transfer of the Company Intellectual Property Rights and Company
Technology.
(viii)
Funding;
Certification with Standards Bodies. Except as set forth in Section
2(l)(viii) of the Disclosure Schedule, no funding, facilities or
personnel of any governmental entity or educational institution
were used, directly or indirectly, to develop or create, in whole
or in part, any of the Company Intellectual Property Rights or
Company Technology. The Company has not made any
submission or suggestion to, or otherwise participated in, and is
not subject to any agreement with, government, any standards bodies
or other entities that could obligate the Company to grant licenses
to or otherwise impair its control of Company Intellectual Property
Rights.
(ix)
“
Intellectual
Property Rights ” means all (A) United States and
foreign patents and patent applications and disclosures relating
thereto (and any patents that issue as a result of those patent
applications), and any renewals, reissues, reexaminations,
extensions, continuations, continuations-in-part, divisions and
substitutions relating to any of the patents and patent
applications; (B) United States and foreign trademarks, service
marks, trade dress, logos, 800 numbers, trade names and corporate
names, whether registered or unregistered, and the goodwill
associated therewith, together with any registrations and
applications for registration thereof; (C) United States and
foreign copyrights and rights under copyrights, whether registered
or unregistered, including moral rights, and any registrations and
applications for registration thereof; (D) rights in databases and
data collections (including knowledge databases, customer lists and
customer databases) under the laws of the United States or any
other jurisdiction, whether registered or unregistered, and any
applications for registration therefor; (E) trade secrets and other
rights in know-how and confidential or proprietary information
(including any business plans, designs, technical data, customer
data, financial information, pricing and cost information, bills of
material or other similar information); (F) URL and domain name
registrations; (G) inventions (whether or not patentable) and
improvements thereto; (H) all claims and causes of action arising
out of or related to infringement or misappropriation of any of the
foregoing and (I) other proprietary or intellectual property rights
now known or hereafter recognized in any jurisdiction.
(x)
“
Technology
” means tangible embodiments of the Intellectual Property
Rights, whether in electronic, written or other media, including
software, technical documentation, specifications, designs, bills
of material, build instructions, test reports, schematics,
algorithms, application programming interfaces, user interfaces,
routines, formulae, databases, lab notebooks, processes,
prototypes, samples, studies or other know-how and other works of
authorship.
(m)
The
Company possesses all licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities (including, but not limited to, those that
may be required by the U.S. Food and Drug Administration (the
“ FDA
”)), all self-regulatory organizations and all courts and
other tribunals presently required or necessary to own or lease, as
the case may be, and to operate its properties and to carry on its
business as now or proposed to be conducted as set forth in the SEC
Documents (“ Permits
”), except where the failure to obtain such Permits would
not, individually or in the aggregate, have a Material Adverse
Effect. Each of such Permits is in full force and
effect, and the Company has not received any notice of any
proceeding relating to revocation or modification of any such
Permit, except where such revocation or modification would not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect.
(n)
The
Company holds and is operating in compliance with such exceptions,
permits, licenses, franchises, authorizations and clearances of the
FDA and/or any committee thereof required, for the conduct of its
business as currently conducted (collectively, the “
FDA
Permits ”), and all such FDA Permits are in full force
and effect. The Company has fulfilled and performed all
of its obligations with respect to the FDA Permits, and, no event
has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
impairment of the rights of the holder of any FDA
Permit.
(o)
The
Company: (i) is and at all times has been in material
compliance with all statutes, rules, regulations, or guidance
applicable to the ownership, testing, development, manufacture,
packaging, processing, use, distribution, marketing, labeling,
promotion, sale, offer for sale, storage, import, export or
disposal of any product under development, manufactured or
distributed by the Company (“ Applicable
Laws ”); (ii) has not received any FDA Form 483,
notice of adverse finding, warning letter, untitled letter or other
correspondence or notice from the FDA or any other federal, state,
local or foreign governmental or regulatory authority alleging or
asserting noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and
supplements or amendments thereto required by any such Applicable
Laws (“ Authorizations
”); (iii) has not received notice of any claim, action,
suit, proceeding, hearing, enforcement, investigation, arbitration
or other action from the FDA or any other federal, state, local or
foreign governmental or regulatory authority or third party
alleging that any product operation or activity is in violation of
any Applicable Laws or Authorizations and has no knowledge that the
FDA or any other federal, state, local or foreign governmental or
regulatory authority or third party is considering any such claim,
litigation, arbitration, action, suit, investigation or proceeding;
(iv) has not received notice that the FDA or any other
federal, state, local or foreign governmental or regulatory
authority has taken, is taking or intends to take action to limit,
suspend, modify or revoke any Authorizations and has no knowledge
that the FDA or any other federal, state, local or foreign
governmental or regulatory authority is considering such action;
(v) has filed, obtained, maintained or submitted all reports,
documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any
Applicable Laws or Authorizations and that all such reports,
documents, forms, notices, applications, records, claims,
submissions and supplements or amendments were complete and correct
on the date filed (or were corrected or supplemented by a
subsequent submission); and (vi) has not, either voluntarily
or involuntarily, initiated, conducted, or issued or caused to be
initiated, conducted or issued, any recall, market withdrawal or
replacement, safety alert, post sale warning, “dear
doctor” letter, or other notice or action relating to the
alleged lack of safety or efficacy of any product or any alleged
product defect or violation and, to the Company’s knowledge,
no third party has initiated, conducted or intends to initiate any
such notice or action.
(p)
(i)
The Company is not in material violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface strata), natural resources or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum, petroleum
products or by-products, asbestos-containing materials or mold
(collectively, “ Hazardous
Materials ”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of, or exposure to, Hazardous Materials (collectively,
“ Environmental
Laws ”), including, without limitation, to the best of
the Company’s knowledge, the handling, transport, and
disposal of the by-product generated by the Company’s
recycling operations, (ii) the Company has all permits,
authorizations and approvals required under any applicable
Environmental Laws for the operation of its business and facilities
(“ Environmental
Permits ”) and is in material compliance with their
requirements, (iii) no material expenditures will be required to
maintain compliance with applicable Environmental Laws or
Environmental Permits; (iv) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company and (v) there are no events
or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company relating to Hazardous Materials or
Environmental Laws, including, without limitation, the
Company’s leasing of facilities located at the Riverbank Army
Ammunition Plant Superfund site (EPA ID#
CA7210020759).
(q)
Subsequent
to the respective dates as of which information is given in the SEC
Documents, (i) the Company has not incurred any material
liabilities or obligations, direct or contingent, or entered into
any material transactions not in the ordinary course of business or
(ii) the Company has not purchased any of its outstanding
capital stock, or declared, paid or otherwise made any dividend or
distribution of any kind on any of its capital stock or otherwise,
(iii) there has not been any material increase in the
indebtedness of the Company, (iv) there has not occurred any
event or condition, individually or in the aggregate, that has had
a Material Adverse Effect, (v) the Company has not sustained
any material loss or interference with respect to its business or
properties from fire, flood, hurricane, earthquake, accident or
other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding; (vi) the
Company has n
