Exhibit 10.1
Subscription
Agreement
Antares Pharma, Inc.
250 Phillips Blvd., Suite 290
Ewing, New Jersey 08618
Ladies and Gentlemen:
The undersigned (the “ Investor
”) hereby confirms and agrees with Antares Pharma, Inc., a
Delaware corporation (the “ Company ”), as
follows:
1.
As
of the Closing (as defined below) and subject to the terms and
conditions hereof, the Investor will purchase from the Company and
the Company will issue and sell to the Investor such number of
units (the “ Units ”), each consisting of an
aggregate of (i) one share (the “ Shares ”) of
the Company’s common stock, $0.01 par value per share (the
“ Common Stock ”), and (ii) a warrant to
purchase 0.4 of a share of Common Stock (the “
Warrants ” and together with the Shares, the “
Securities ”), as is set forth on the signature page
hereto (the “ Signature Page ”) for a purchase
price of $1.10 per Unit. The closing is expected to occur on or
about September 23, 2009 (the “ Closing ”),
subject to the satisfaction of certain closing conditions set forth
herein.
2.
The
offering and sale of the Units (the “ Offering
”) is being made pursuant to (i) an effective
registration statement (the “ Initial Registration
Statement ”) on Form S-3 (File No. 333-158630), including
the Prospectus contained therein (the “ Base
Prospectus ”), filed with the Securities and Exchange
Commission (the “ Commission ”) on April 17,
2009; (ii) if applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the
Securities Act of 1933, as amended (the “ Act
”)), that have been or will be filed with the Commission and
delivered to the Investor on or prior to the date hereof (each, a
“ Free Writing Prospectus ”); and (iii) a final
prospectus supplement (the “ Prospectus Supplement
” and together with the Base Prospectus, the “
Prospectus ”) containing certain supplemental
information regarding the Units and terms of the Offering that has
been delivered to the Investor on or prior to the date hereof and
will be filed with the Commission in accordance with applicable
securities laws.
3.
On
the date of Closing (the “ Closing
Date ”), the Company shall deliver to Investor
(i) the Shares via the Depository Trust Company’s
(“DTC”) Deposit or Withdrawal at Custodian system via
the DTC instructions set forth on the signature page hereto and
(ii) the Warrants in physical, certificated form to the address set
forth on the signature page hereto, such Shares and Warrants to be
registered in such name or names as designated by the Investor on
the signature page hereto. The Shares and Warrants shall be
unlegended and free of any resale restrictions.
4.
The
Company’s obligation to issue and sell the Units to the
Investor shall be subject to the receipt by the Company of the
purchase price for the Units being purchased hereunder as set forth
on the Signature Page and the accuracy of the representations and
warranties made by the Investor herein and the fulfillment of those
undertakings herein of the Investor to be fulfilled prior to the
Closing. The Investor’s obligation to purchase the Units
shall be subject to the accuracy of the representations and
warranties made by the Company and the fulfillment of those
undertakings of the Company to be fulfilled prior to the Closing.
The purchase price for the Units being purchased hereunder as set
forth on the Signature Page shall be reduced by $10,000; such
amount is intended by the Company to pay for Investor’s legal
fees incurred in connection with the transactions contemplated
hereby.
5.
The
Company shall before the opening of trading on the NYSE Amex on the
next trading day after the date hereof, file a Current Report on
Form 8-K disclosing all material aspects of the transactions
contemplated hereby. The Company shall not identify the Investor by
name in any public filing, or otherwise publicly disclose
the
Investor’s name, without the
Investor’s prior written consent, unless required by
applicable laws, rules and regulations.
6.
The
Investor represents that (i) it has had full access to the General
Disclosure Package prior to or in connection with its receipt of
this Subscription Agreement and is relying only on such information
and documents in making its decision to purchase the Units; and
(ii) it is acquiring the Units for its own account, or an account
over which it has investment discretion, and does not have any
agreement or understanding, directly or indirectly, with any person
or entity to distribute any of the Units.
7.
The
Investor has the requisite power and authority to enter into this
Subscription Agreement and to consummate the transactions
contemplated hereby.
8.
The
Investor represents that neither the Investor nor any person acting
on behalf of, or pursuant to any understanding with or based upon
any information received from, the Investor has, directly or
indirectly, as of the date of this Subscription Agreement, engaged
in any transactions in the securities of the Company or has
violated its obligations of confidentiality with respect to the
Offering since the time that the Investor was first contacted by
the Company or its agents with respect to the transactions
contemplated hereby. The Investor covenants that neither it, nor
any person acting on behalf of, or pursuant to any understanding
with or based upon any information received from, the Investor will
engage in any transactions in the securities of the Company prior
to the time that the transactions contemplated by this Subscription
Agreement are publicly disclosed. Notwithstanding the foregoing, in
the case of an Investor and/or its affiliates that is, individually
or collectively, a multi-managed investment bank or vehicle whereby
separate portfolio managers manage separate portions of such
Investor’s or affiliates assets and the portfolio managers
have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Investor’s
or affiliates assets, the representation set forth above shall only
apply with respect to the portion of assets managed by the
portfolio managers that have knowledge about the financing
transaction contemplated by this Subscription Agreement.
9.
The
Investor represents that, except as set forth on the signature
page , (i) it has had no position, office or other material
relationship within the past three years with the Company or
persons known to it to be affiliates of the Company, (ii) it is not
a, and it has no direct or indirect affiliation or association with
any, FINRA member or an Associated Person (as such term is defined
under FINRA Membership and Registration Rules Section 1011(b)) as
of the date hereof, and (iii) neither it nor any group of investors
(as identified in a public filing made with the Commission) of
which it is a member, acquired, or obtained the right to acquire,
20% or more of the Common Stock (or securities convertible or
exercisable for Common Stock) or the voting power of the Company on
a post-transaction basis.
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10.
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The Company hereby represents and warrants to,
and covenants with, the Investor, as follows:
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(a)
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The Initial Registration Statement has been
filed with the Commission pursuant to Rule 415 under the Act. The
Company satisfies all of the requirements of the Act and the rules
and regulations of the Commission thereunder (the “ Rules
and Regulations ”) for use of Form S-3 for the offering
of the Units contemplated hereby, including the transaction
requirements set forth in General Instruction I.B.6. of such form.
The aggregate market value of all securities sold by or on behalf
of the Company pursuant to Form S-3 during the period of 12
calendar months immediately prior to, and including, the offering
of the Units contemplated hereby is no more than one-third of the
aggregate market value of the voting and non-voting common equity
held by non-affiliates of the Company, all as contemplated by
General Instruction I.B.6.(a) of such form. The Company is not a
shell company (as defined in Rule 405 under the Act), and has not
been a shell company for at least 12 calendar months prior to the
filing of the Initial Registration Statement. The Initial
Registration Statement and any post-effective amendment thereto,
excluding exhibits thereto, have been declared effective by the
Commission in such form and meet the requirements of the Act and
the Rules and Regulations. Other than (i) a registration statement,
if any, increasing the size of the offering filed pursuant to Rule
462(b) under the Act and the Rules and Regulations (a “
Rule 462(b) Registration Statement ”) and (ii) the
Prospectus contemplated by this Subscription
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Agreement to be filed pursuant to
Rule 424(b) of the Rules and Regulations in accordance with Section
5 hereof and (iii) any Issuer Free Writing Prospectus (as defined
below), no other document with respect to the offer and sale of the
Units has heretofore been filed with the Commission. No stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose or pursuant to Section 8A of the Act has been
initiated or, to the knowledge of the Company, threatened by the
Commission. The Base Prospectus and any prospectus subject to
completion included in the Initial Registration Statement or any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Units filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations is hereinafter
called a “ Preliminary Prospectus .” The various
parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, in each case including all exhibits
thereto and including (i) the information contained in the
Prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations and deemed by virtue of Rules 430B and 430C
under the Act to be part of the Initial Registration Statement at
the time it became effective and (ii) the documents incorporated by
reference in the Rule 462(b) Registration Statement at the time the
Rule 462(b) Registration Statement became effective, are
hereinafter collectively called the “ Registration
Statements .”
Any reference herein to any
Registration Statement, Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein. Any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or the Prospectus under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be. Any reference to any
amendment to the Registration Statements shall be deemed to refer
to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the date of this
Subscription Agreement that is incorporated by reference in the
Registration Statements.
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(b)
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As of the Applicable Time (as defined below) and
as of the Closing, as the case may be, neither (i) the General Use
Free Writing Prospectus(es) (as defined below) issued at or prior
to the Applicable Time and the Pricing Prospectus (as defined
below), considered together (collectively, the “ General
Disclosure Package ”), (ii) any individual Limited Use
Free Writing Prospectus (as defined below), nor (iii) the bona fide
electronic road show (as defined in Rule 433(h)(5) of the Rules and
Regulations that has been made available without restriction to any
person), when considered together with the General Disclosure
Package, included or will include any untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. As
used in this paragraph (b) and elsewhere in this Subscription
Agreement:
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a.
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“ Applicable Time ” means
10:00 P.M., New York time, on the date of this Subscription
Agreement.
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b.
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“ Pricing Prospectus ” means
the Base Prospectus, as amended and supplemented immediately prior
to the Applicable Time, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part
thereof.
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c.
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“ Issuer Free Writing Prospectus
” means any “issuer free writing prospectus,” as
defined in Rule 433 of the Rules and Regulations relating to the
Shares in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in
the Company’s records pursuant to Rule 433(g) of the Rules
and Regulations.
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d.
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“ General Use Free Writing
Prospectus ” means any Issuer Free Writing Prospectus
that is identified on Schedule B hereto.
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e.
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“ Limited Use Free Writing
Prospectuses ” means any Issuer Free Writing Prospectus
that is not a General Use Free Writing Prospectus.
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(c)
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No order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus relating to the offering of the Units has been issued by
the Commission, and no proceeding for that purpose or pursuant to
Section 8A of the Act has been instituted or, to the knowledge of
the Company, threatened by the Commission, and any Preliminary
Prospectus, if any, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Rules and
Regulations, and did not contain an 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, in the light of the
circumstances under which they were made, not
misleading.
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(d)
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At the respective times the Registration
Statements and any amendments thereto became or become effective,
at the date of this Subscription Agreement and at the Closing, each
Registration Statement and any amendments thereto conformed and
will conform in all material respects to the requirements of the
Act and the Rules and Regulations and did not and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading; and the Prospectus and any
amendments or supplements thereto, at the time the Prospectus or
any amendment or supplement thereto was issued and at the Closing,
conformed and will conform in all material respects to the
requirements of the Act and the Rules and Regulations and did not
and will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The Prospectus contains all required information
under the Act with respect to the Units and the distribution of the
Units.
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(e)
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Each Issuer Free Writing Prospectus, if any, as
of its issue date and at all subsequent times through the
completion of the offer and sale of the Units did not, does not and
will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, Pricing Prospectus or the Prospectus, including any
document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof that has not been superseded
or modified, or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances prevailing at
the subsequent time, not misleading.
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(f)
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The documents incorporated by reference in the
Prospectus, when they were filed with the Commission conformed in
all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and none of such documents contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, in the light of the
circumstances under which they were made; and any further documents
so filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
in the light of the circumstances under which they are
made.
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(g)
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The Company has not, directly or indirectly,
distributed and will not distribute any offering material in
connection with the offering and sale of the Units other than any
Preliminary
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Prospectus, the Prospectus and other
materials, if any, permitted under the Act. The Company will file
with the Commission all Issuer Free Writing Prospectuses (other
than a “road show,” as described in Rule 433(d)(8) of
the Rules and Regulations) in the time and manner required under
Rules 163(b)(2) and 433(d) of the Rules and Regulations.
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(h)
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At the time of filing the Initial Registration
Statement, any 462(b) Registration Statement and any post-effective
amendments thereto, and at the date hereof, the Company was not,
and the Company currently is not, an “ineligible
issuer,” as defined in Rule 405 of the Rules and
Regulations.
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(i)
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The Company is a “smaller reporting
company,” as defined in Rule 405 of the Rules and
Regulations.
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(j)
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Except as listed in Schedule
A hereto, the Company
has no direct or indirect Subsidiaries. “Subsidiary”
means, with respect to any entity, any corporation or other
organization of which securities or other ownership interest having
ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions, are directly or
indirectly owned by such entity or of which such entity is a
partner or is, directly or indirectly, the beneficial owner of 50%
or more of any class of equity securities or equivalent profit
participation interests.
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(k)
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Each of the Company and the Subsidiaries is an
entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite
corporate power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Neither
the Company nor any of its Subsidiaries is in violation of any of
the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents.
Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing, as the case may be, would not have or result in (i) a
material adverse effect on the legality, validity or enforceability
of this Subscription Agreement, (ii) a material adverse effect on
the condition (financial or otherwise), results of operations,
assets, business or prospects of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the
Company's ability to perform in any material respect on a timely
basis its obligations under this Subscription Agreement or
consummate any transactions contemplated by this Subscription
Agreement, the General Disclosure Package or the Prospectus (any of
(i), (ii) or (iii) being referred to herein as a “
Material Adverse Effect ”).
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(l)
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The Company has the requisite corporate power
and authority to enter into and to consummate the transactions
contemplated by this Subscription Agreement and otherwise to carry
out its obligations hereunder. The execution and delivery of this
Subscription Agreement by the Company and the consummation by it of
the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Company and no
further corporate action is required by the Company in connection
therewith. This Subscription Agreement has been (or upon delivery
will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms, except (i) as limited by laws of
general application relating to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors’ rights generally, (ii) as limited by rules of law
governing specific performance, injunctive relief, or other
equitable remedies and (iii) to the extent the indemnification
provisions contained in this Subscription Agreement may be limited
by applicable federal or state securities laws.
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(m)
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The Company has an authorized capitalization as
set forth in the Pricing Prospectus and the Shares to be issued and
sold by the Company pursuant to this Subscription Agreement has
been duly and
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validly authorized and, when issued
and delivered against payment therefor as provided in this
Subscription Agreement, will be duly and validly issued, and will
be fully paid and nonassessable and free of any preemptive or
similar rights and will conform to the description thereof
contained in the General Disclosure Package and the
Prospectus.
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(n)
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The entire authorized capital stock of the
Company consists of (A) 150,000,000 shares of Common Stock,
78,969,542 of which are issued and outstanding, and (B) 3,000,000
shares of preferred stock, none of which are issued and
outstanding. All shares of the Company’s issued and
outstanding capital stock have been duly authorized, are validly
issued and outstanding, and are fully paid and nonassessable, and
conform to the description thereof contained in the General
Disclosure Package and the Prospectus. None of the outstanding
shares of Common Stock were issued in violation of any statutory or
common law preemptive rights. There are no dividends which have
accrued or been declared but are unpaid on the capital stock of the
Company. All securities of the Company have been issued in all
material respects in accordance with the provisions of all
applicable securities and other laws. No Person has any right of
first refusal, preemptive right, right of participation, or any
similar right to participate in the transactions contemplated by
this Subscription Agreement. Except as a result of the purchase and
sale of the Units and except for employee and director stock
options under the Company's equity compensation plans and for
17,294,500 shares of Common Stock issuable pursuant to outstanding
warrants, there are no outstanding options, warrants, rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into
or exchangeable for, or giving any Person any right to subscribe
for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or
any of its Subsidiaries is or may become bound to issue additional
shares of Common Stock, or securities or rights convertible or
exchangeable into shares of Common Stock. The description of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder,
as described in the General Disclosure Package and the Prospectus,
accurately and fairly present the information required to be shown
with respect to such plans, arrangements, options and rights. The
issue and sale of the Units will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other
than the Investor) and will not result in a right of any holder of
Company securities to adjust the exercise, conversion, exchange or
reset price under such securities. “Person” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
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(o)
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The Shares have been duly authorized and, when
issued and paid for in accordance with this Subscription Agreement,
will be duly and validly issued, fully paid and nonassessable, free
and clear of all Liens, other than any Liens created by or imposed
on the holders thereof through no action of the Company. The
Warrants have been duly authorized, and when executed and delivered
by the Company, will constitute valid and binding obligations of
the Company enforceable in accordance with their terms, except that
such enforcement may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now
or hereafter in effect, affecting creditors’ rights
generally. The number of shares of Common Stock issuable upon
exercise of the Warrants (the “ Warrant Stock ”)
has been duly authorized and reserved for issuance pursuant to the
terms of the Warrants, and when issued by the Company upon valid
exercise of the Warrants and payment of the exercise price, 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 General Disclosure Package and
the Prospectus. The Company has reserved from its duly authorized
capital stock (i) the maximum number of shares of Common Stock
issuable pursuant to this Subscription Agreement and (ii) the
maximum number of shares of Warrant Stock. “Lien” means
a lien, charge, security interest, encumbrance, right of first
refusal or other restriction, except for a lien for current taxes
not yet due and payable and a minor imperfection of title, if any,
not material in nature or amount and not materially detracting from
the
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value or impairing the use of the
property subject thereto or impairing the operations or proposed
operations of the Company.
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(p)
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All the outstanding shares of capital stock (if
any) of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and, except to the
extent set forth in the General Disclosure Package and the
Prospectus, are owned by the Company directly or indirectly through
one or more wholly-owned Subsidiaries, free and clear of all
Liens.
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(q)
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The execution, delivery and performance of this
Subscription Agreement and the Warrants by the Company, the
issuance and sale of the Units, and the issuance of the Warrant
Stock upon the exercise of the Warrants and the consummation by the
Company of the transactions contemplated thereby do not and will
not (i) conflict with or violate any provision of the
Company’s or any of the Subsidiaries’ certificate or
articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become
a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a debt of the Company or any of the
Subsidiaries) or other understanding to which the Company or any of
the Subsidiaries is a party or by which any property or asset of
the Company or any of the Subsidiaries is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or any of the
Subsidiaries is subject (including federal and state securities
laws and regulations), or by which any property or asset of the
Company or any of the Subsidiaries is bound or affected, except, in
the case of clause (ii), where such conflict, default or violation
would not have or result in a Material Adverse Effect.
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(r)
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Except for the registration of the Securities
under the Act, Exchange Act and applicable state securities laws,
the Financial Industry Regulatory Authority, Inc. (“
FINRA ”) and NYSE Amex (the “ Exchange
”) in connection with the purchase of the Units and the
exercise of the Warrants by the Investor, no consent, approval,
authorization or order of, or filing, qualification or registration
(each an “ Authorization ”) with, any court,
governmental or non-governmental agency or body, foreign or
domestic, is required for the execution, delivery and performance
of this Subscription Agreement or the Warrants by the Company, the
offer or sale of the Units and the consummation of the transactions
contemplated hereby.
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(s)
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KPMG LLP, who have certified certain financial
statements and related schedules included or incorporated by
reference in the Registration Statements, the General Disclosure
Package and the Prospectus is an independent registered public
accounting firm within the meaning of Article 2-01 of Regulation
S-X and the Public Company Accounting Oversight Board (United
States) (the “ PCAOB ”). Except as disclosed in
the Registration Statement and as pre-approved in accordance with
the requirements set forth in Section 10A of the Exchange Act, KPMG
LLP has not been engaged by the Company to perform any
“prohibited activities” (as defined in Section 10A of
the Exchange Act).
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(t)
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The financial statements, together with the
related notes and schedules, included or incorporated by reference
in the General Disclosure Package, the Prospectus and in each
Registration Statement comply in all material respects with
applicable accounting requirements and the rules and regulations of
the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with generally accepted accounting principles in the United States,
applied on a consistent basis during the periods involved (“
GAAP ”), except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited
financial statements may not contain all footnotes required by
GAAP, subject to normal year-end audit adjustments. Such financial
statements fairly present in all material respects the financial
position of the Company and its consolidated Subsidiaries, if any,
as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case
of
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unaudited statements, to normal
year-end audit adjustments. All information contained in the
Registration Statements, the General Disclosure Package and the
Prospectus regarding “non-GAAP financial measures” (as
defined in Regulation G) complies with Regulation G and Item 10 of
Regulation S-K, to the extent applicable.
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(u)
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Neither the Company nor any of the Subsidiaries
has sustained, since the date of the latest audited financial
statements included or incorporated by reference in the General
Disclosure Package, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the General Disclosure Package; an
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