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EXHIBIT 1.1
4,110,000 UNITS
BIOPURE CORPORATION
UNDERWRITING AGREEMENT
January 12, 2006
Dawson James Securities, Inc., and
Noble International Investments, Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Dawson James Securities, Inc.
925 South Federal Highway, 6th Floor
Boca Raton, FL 33432
Dear Sirs:
Biopure Corporation, a Delaware corporation (the "Company"),
proposes,
subject to the terms and conditions contained herein, to sell to
you and the
other underwriters named on Schedule I to this Agreement (the
"Underwriters")
for whom you are acting as Representatives (the "Representatives"),
the number
of securities of the Company identified on Schedule I to this
Agreement of the
Company.
The
Underwriters, severally and not jointly, agree to purchase from
the
Company the number of Firm Units set forth opposite their
respective names on
Schedule I attached hereto and made a part hereof at a purchase
price (net of
discounts and commissions) of $0.7708 per Firm Unit. The Firm Units
are to be
offered to the public (the "Offering") at the offering price of
$0.82 per Firm
Unit. Each Firm Unit consists of one share of the Company's Class A
common
stock, par value $0.01 per share (the "Common Stock"), and one
warrant (the
"Warrant"). Each Warrant entitles its holder to exercise it to
purchase one
share of Common Stock for $1.025 and shall be exercisable
immediately for a
period of five (5) years commencing on the Effective Date (as
defined
hereinbelow). The shares of Common Stock and warrants are separate
securities
and are referred to collectively as Units for convenience only.
The
Company has prepared and filed in conformity with the requirements
of
the Securities Act of 1933, as amended (the "Securities Act"), and
the published
rules and regulations thereunder (the "Rules") adopted by the
Securities and
Exchange Commission (the "SEC") Registration Statement (as
hereinafter defined)
on Form S-3 (Nos. 333-114559). The Registration Statement and any
post-effective
amendments have become effective; and no stop order suspending the
effectiveness
of the Registration Statement has been issued and no proceeding for
that purpose
has been initiated or, to the Company's knowledge after
reasonable
investigation, threatened by the SEC (the various parts of the
Registration
Statement on Form S-3 including all exhibits thereto and including
the documents
incorporated by reference in the prospectus contained in such
Registration
Statement at the time such part of each Registration Statement
became effective,
as amended at the time such part of such Registration Statement
became effective
are hereinafter collectively called the "Registration Statement";
and the
prospectus, as supplemented by the prospectus supplement filed with
the SEC on
January 10, 2006 included in the Registration Statement, and
including the
documents incorporated by reference therein as of the date of such
prospectus
supplement, is hereinafter called the "Prospectus"); any reference
to any
amendment or supplement to the Prospectus shall be deemed to refer
to and
include any documents filed after the date of such Prospectus under
the
Securities Exchange of 1934, as amended (the "Exchange Act"), and
incorporated
by reference in such Prospectus; and any reference to any amendment
to the
Registration Statement shall be deemed to
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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 effective date of the
Registration
Statement that is incorporated by reference in the Registration
Statement.
Copies of such Registration Statement and of the related Prospectus
have
heretofore been delivered by the Company to you.
The
Company understands that the Underwriters propose to make a
public
offering of the shares and warrants, as set forth in and pursuant
to the
Prospectus, as soon after the Effective Date and the date of this
Agreement as
the Representatives deem advisable. The Company hereby confirms
that the
Underwriters and dealers have been authorized to distribute or
cause to be
distributed the Prospectus (as from time to time amended or
supplemented if the
Company furnishes amendments or supplements thereto to the
Underwriters).
1.
Sale, Purchase, Delivery and Payment for the Shares. On the basis
of the
representations, warranties and agreements contained in, and
subject to the
terms and conditions of, this Agreement:
(a)
The Company agrees to issue and sell to each of the Underwriters,
and
each of the Underwriters agrees, severally and not jointly, to
purchase from the
Company, at a purchase price of $0.7708 per Unit (net of discounts
and
commissions) (the "Initial Price"), the number of Firm Units set
forth opposite
the name of such Underwriter under the column "Number of Firm Units
to be
Purchased" on Schedule I to this Agreement, subject to adjustment
in accordance
with Section 6 hereof. The Firm Units are hereinafter collectively
referred to
as the "Units," and the Units, the shares of Common Stock and the
Warrants
included in the Units and the shares of Common Stock issuable upon
exercise of
the Warrants are hereinafter referred to collectively as the
"Public
Securities."
(b)
Payment of the purchase price for, and delivery of the
certificates
for, the Firm Units shall be made at 10:00 A.M., New York time, on
January 17,
2006, or such other date, not later than the fifth (5th) business
day
thereafter, or at such earlier time as shall be agreed upon by
the
Representatives and the Company at the offices of the
Representatives or at such
other place as shall be agreed upon by the Representatives and the
Company. The
hour and date of delivery and payment for the Firm Units are called
"Closing
Date." Payment for the Firm Units shall be made on the Closing Date
by wire
transfer in Federal (same day) funds to the Company upon delivery
to you of
certificates (in form and substance satisfactory to the
Underwriters)
representing components of the Firm Units (or through the
facilities of the
Depository Trust Company ("DTC")) for the account of the
Underwriters. The Firm
Units shall be registered in such name or names and in such
authorized
denominations as the Representatives may request in writing at
least two (2)
full business days prior to the Closing Date. The Company will
permit the
Representatives to examine and package the Firm Units for delivery,
at least one
(1) full business day prior to the Closing Date. The Company shall
not be
obligated to sell or deliver the Firm Units except upon tender of
payment by the
Representatives for all the Firm Units.
(c)
The Company hereby agrees to issue to the Representatives (and/or
their
designees) on the Effective Date two warrants (the
"Representatives' Warrants"),
each for the purchase of an aggregate of 246,600 shares of Common
Stock
("Representatives' Shares"). The Representatives' Warrants shall be
exercisable,
in whole or in part, for the period of four (4) years commencing on
the first
anniversary of the Effective Date, one at an initial exercise price
per
Representatives' Share of $0.984, which is equal to one hundred
twenty percent
(120%) of the Initial Price, and the other an initial exercise
price per
Representatives' Share of $1.025, which is equal to one hundred
twenty-five
percent (125%) of the Initial Price. The Representatives' Warrants
and the
shares of Common Stock issuable upon exercise of the
Representatives' Warrants
are hereinafter referred to collectively as the "Representatives'
Securities."
The Public Securities and the Representatives' Securities are
hereinafter
referred to collectively as the "Securities." The Representatives
understand and
agree that there are significant restrictions against
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transferring the Representatives' Warrants during the first one
hundred eighty
(180) days after the Effective Date, as set forth in Section 3 of
the
Representatives' Warrants.
Payment of the purchase price of, and delivery of the certificates
for, the
Representatives' Warrants shall be made on the Closing Date. The
Company shall
deliver to the Representatives, upon payment therefor, certificates
for the
Representatives' Warrants in the name or names and in such
authorized
denominations as the Representatives may request.
2.
Representations and Warranties of the Company. For your own
independent
business reasons, you have required the Company to make the
following
representations and warranties as a condition to agreeing to
execute this
Agreement. You understand, and anyone reviewing this Agreement
should
understand, that disclosure regarding the Company and its business
is contained
in the Prospectus or Registration Statement, and that no
representation,
warranty, covenant or agreement contained in this Agreement is
intended, or
should be construed, to modify the disclosure about the Company and
its business
contained in the Prospectus or Registration Statement. The Company
represents
and warrants to each Underwriter, as of the date hereof, as of the
Closing Date
as follows:
(a)
The Registration Statement in respect of the Securities has been
filed
with the SEC; the Registration Statement and any post-effective
amendment has
become effective; and no stop order suspending the effectiveness of
the
Registration Statement has been issued and no proceeding for that
purpose has
been initiated or, to the Company's knowledge after reasonable
investigation,
threatened by the SEC. Any required filing of the Prospectus and
any supplement
thereto pursuant to Rule 424(b) of the Rules has been or will be
made in the
manner and within the time period required by such Rule 424(b).
(b)(i) The documents incorporated by reference in the Prospectus,
when they
were filed with the SEC, conformed in and complied in all material
respects with
the requirements of the Exchange Act, as applicable, and the Rules
thereunder,
and none of such documents contained an untrue statement of a
material fact or
omitted to state a material fact required to be stated therein or
necessary to
make the statements therein not misleading; and any further
documents so filed
and incorporated by reference in the Prospectus or any further
amendment or
supplement thereto, when such documents become effective or are
filed with the
SEC, as the case may be, will conform in all material respects to
the
requirements of the Securities Act or the Exchange Act, as
applicable, and the
Rules thereunder and will 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 not misleading. Notwithstanding the
foregoing, none of
the representations and warranties in this paragraph shall apply to
statements
in, or omissions from, the Prospectus made in reliance upon, and in
conformity
with, information herein or otherwise furnished in writing by
the
Representatives on behalf of the several Underwriters for use in
the Prospectus.
With respect to the preceding sentence, the Company acknowledges
that the only
information furnished in writing by the Representatives on behalf
of the several
Underwriters for use in the Prospectus is the statements contained
under the
caption "Underwriting" in the Prospectus.
(c)
The agreements and documents described in the Registration
Statement
and the Prospectus conform to the descriptions thereof contained
therein and
there are no agreements or other documents required to be described
in the
Registration Statement or the Prospectus or to be filed with the
SEC as exhibits
to the Registration Statement that have not been so described or
filed. Each
agreement or other instrument (however characterized or described)
to which the
Company is a party or by which its property or business is or may
be bound or
affected and (i) that is referred to in the Prospectus, or (ii) is
material to
the Company's business, has been duly and validly executed by the
Company, is in
full force and effect and is enforceable against the Company and,
to the
Company's knowledge, the other parties thereto, in accordance with
its terms,
except (x) as such enforceability may be limited by bankruptcy,
insolvency,
reorganization or similar laws affecting creditors' rights
generally, (y) as
enforceability of any
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indemnification or contribution provision may be limited under the
federal and
state securities laws, and (z) that the remedy of specific
performance and
injunctive and other forms of equitable relief may be subject to
the equitable
defenses and to the discretion of the court before which any
proceeding therefor
may be brought, and none of such agreements or instruments has been
assigned by
the Company, and neither the Company nor, to the Company's
knowledge, any other
party is in breach or default thereunder and no event has occurred
that, with
the lapse of time or the giving of notice, or both, would
constitute a breach or
default thereunder. Performance by the Company of the material
provisions of
such agreements or instruments will not result in a violation of
any existing
applicable law, rule, regulation, judgment, order or decree of any
governmental
agency or court, domestic or foreign, having jurisdiction over the
Company or
any of its assets or businesses, including, without limitation,
those relating
to environmental laws and regulations.
(d)
INTENTIONALLY DELETED.
(e)
The disclosures in the Registration Statement summarizing the
effects
of Federal, State and local regulation on the Company's business as
currently
contemplated are correct summaries in all material respects and do
not omit to
state a material fact.
(f)
The statistical and related data included in the Registration
Statement
are based on or derived from sources that the Company believes to
be reliable
and accurate.
(g)
Since the respective dates as of which information is given in
the
Registration Statement and the Prospectus, except as otherwise
specifically
stated therein, (i) the Company has not incurred any liabilities or
obligations,
direct or contingent, which are material, individually or in the
aggregate, to
the Company, taken as a whole, nor entered into any material
transaction not in
the ordinary course of business (other than additional draws made
under existing
credit facilities), (ii) except as contemplated by the Prospectus,
there has not
been any change in the Company's capital stock or increase in
long-term debt
(other than additional draws made under existing credit facilities)
or any
payment of or declaration to pay any dividends or other
distribution with
respect to the capital stock (or other) of the Company, (iii) the
Company has
not sustained since the date of the latest audited financial
statements included
in the Prospectus any material loss or interference with its
business, whether
or not covered by insurance, otherwise than as contemplated by the
Prospectus,
(iv) since the date of the latest audited financial statements
included in the
Prospectus and except as contemplated by the Prospectus, there has
not been any
material adverse change, or any development that could reasonably
be expected to
result in a material adverse change, in or affecting the general
affairs,
management, business, properties, prospects or condition (financial
or
otherwise), stockholders' equity, or results of operations of the
Company, taken
as a whole, nor have any events occurred which, singly or in the
aggregate, have
a material adverse effect on the sale of the Securities or the
consummation of
the transactions contemplated hereby (any change or event described
in (iv) of
this clause (g), a "Material Adverse Effect"); and (v) the Company
have good and
marketable title in fee simple to all material real property and
good and
marketable title to all material personal property owned by them,
in each case
free and clear of all liens, encumbrances and defects except such
as are
described in the Prospectus or such as do not materially affect the
value of
such property and do not materially interfere with the use made and
proposed to
be made of such property by the Company; and any real property and
buildings
held under lease by the Company are held by it under valid,
subsisting and
enforceable leases with such exceptions as are described in the
Prospectus or
are not material and do not interfere materially with the use made
and proposed
to be made of such property and buildings by the Company.
(h)
The Company has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of Delaware, with power
and
authority (corporate and other) to own its properties and conduct
its business
as described in the Prospectus and has been duly qualified to do
business as a
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foreign corporation for the transaction of business and is in good
standing
under the laws of each other jurisdiction in which it owns or
leases properties
or conducts any business so as to require such qualification,
except where the
failure to be so qualified or in good standing would not have a
Material Adverse
Effect; and to the Company's knowledge, no proceeding has been
instituted in any
such jurisdiction revoking, limiting or curtailing, or seeking to
revoke, limit
or curtail, such power and authority or qualification.
(i)
Ernst & Young LLP ("E&Y"), whose report is filed with the
SEC as part
of the Registration Statement, are independent accountants as
required by the
Act and the Rules. E&Y has not, during the periods covered by
the financial
statements included in the Prospectus, provided to the Company any
non-audit
services as prohibited in Section 10A(g) of the Exchange Act. There
are no
material off-balance sheet transactions, arrangements, obligations
(including
contingent obligations) or any other relationships with
unconsolidated entities
or other persons, that may have a material current or a material
future effect
on the Company's financial condition, changes in financial
condition, results of
operations, liquidity, capital expenditures, capital resources, or
significant
components of revenues or expenses.
(j)
The financial statements, including the notes thereto and
supporting
schedules included in the Registration Statement and Prospectus
fairly present
in all material respects the financial position, the results of
operations and
the cash flows of the Company at the dates and for the periods to
which they
apply; and such financial statements have been prepared in
conformity with
generally accepted accounting principles, consistently applied
throughout the
periods involved; and the supporting schedules included in the
Registration
Statement present fairly in all material respects the information
required to be
stated therein.
(k)
The Company had at the date or dates indicated in the Prospectus
duly
authorized, issued and outstanding capitalization as set forth in
the
Registration Statement and the Prospectus. Based on the assumptions
stated in
the Registration Statement and the Prospectus, the Company will
have on the
Closing Date the adjusted stock capitalization set forth therein.
Except as
described in the Prospectus or in the documents incorporated by
reference into
the Prospectus, the Company has not sold or issued any shares of
Common Stock
during the six-month period preceding the date of the Prospectus,
including any
sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act,
other than shares issued pursuant to employee benefit plans,
qualified stock
options plans or other employee compensation plans or pursuant to
outstanding
options, rights or warrants.
(l)
All issued and outstanding securities of the Company have been
duly
authorized and validly issued and are fully paid and
non-assessable; except as
described in or expressly contemplated by the Registration
Statement, there are
no outstanding rights (including, without limitation, pre-emptive
rights),
warrants or options to acquire, or instruments convertible into or
exchangeable
for, any shares of capital stock or other equity interest in the
Company, or,
other than agreements with a Representative, any contract,
commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of
any capital stock of the Company, any such convertible or
exchangeable
securities or any such rights, warrants or options. The authorized
Common Stock
conforms in all material respects to all statements relating
thereto contained
in the Registration Statement and the Prospectus. The offers and
sales of the
outstanding Common Stock were at all relevant times either
registered under the
Act and the applicable state securities or Blue Sky laws or, based
in part on
the representations and warranties of the purchasers of such shares
of Common
Stock, exempt from such registration requirements. The certificates
evidencing
the Securities are in due and proper legal form and have been duly
authorized
for issuance by the Company.
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(m)
The Securities have been duly authorized and, when issued and paid
for,
will be validly issued, fully paid and non-assessable; the holders
thereof are
not and will not be subject to personal liability by reason of
being such
holders; the Securities are not and will not be subject to the
preemptive rights
of any holders of any security of the Company or similar
contractual rights
granted by the Company; and all corporate action required to be
taken for the
authorization, issuance and sale of the Securities has been duly
and validly
taken. The Securities conform in all material respects to all
statements with
respect thereto contained in the Registration Statement. When
issued, the
Representatives' Warrants and the Warrants will constitute valid
and binding
obligations of the Company to issue and sell, upon exercise thereof
and payment
of the respective exercise prices therefor, the number and type of
securities of
the Company called for thereby in accordance with the terms thereof
and the
Representatives' Warrants and the Warrants are enforceable against
the Company
in accordance with their respective terms, except (i) as such
enforceability may
be limited by bankruptcy, insolvency, reorganization or similar
laws affecting
creditors' rights generally, (ii) as enforceability of any
indemnification or
contribution provision may be limited under the federal and state
securities
laws, and (iii) that the remedy of specific performance and
injunctive and other
forms of equitable relief may be subject to the equitable defenses
and to the
discretion of the court before which any proceeding therefor may be
brought.
(n)
Except as disclosed in the Prospectus and shares of Common
Stock
underlying warrants previously issued to placement agents and
entitling such
placement agents to purchase an aggregate of less than 20,000
shares of Common
Stock at exercise prices in excess of $15.00 per share, no holders
of any
securities of the Company or any rights exercisable for or
convertible or
exchangeable into securities of the Company have the right to
require the
Company to register any such securities of the Company under the
Securities Act
or to include any such securities in a registration statement to be
filed by the
Company.
(o)
This Agreement and the Warrant Agreement (as hereinafter
defined)
(collectively, the "Operative Agreements") have been duly and
validly authorized
by the Company and, when executed and delivered, will constitute,
the valid and
binding agreements of the Company, enforceable against the Company
in accordance
with their respective terms, except (i) as such enforceability may
be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors'
rights generally, (ii) as enforceability of any indemnification or
contribution
provision may be limited under the federal and state securities
laws, and (iii)
that the remedy of specific performance and injunctive and other
forms of
equitable relief may be subject to the equitable defenses and to
the discretion
of the court before which any proceeding therefor may be
brought.
(p)
The execution, delivery, and performance by the Company of the
Operative Agreements, the consummation by the Company of the
transactions herein
and therein contemplated and the compliance by the Company with the
terms hereof
and thereof do not and will not, with or without the giving of
notice or the
lapse of time or both (i) result in a breach of, or conflict with
any of the
terms and provisions of, or constitute a default under, or result
in the
creation, modification, termination or imposition of any lien,
charge or
encumbrance upon any property or assets of the Company pursuant to
the terms of
any agreement or instrument to which the Company is a party, (ii)
result in any
violation of the provisions of the certificate of incorporation or
the by-laws
of the Company; or (iii) violate any existing applicable law, rule,
regulation,
judgment, order or decree of any governmental agency or court,
domestic or
foreign, having jurisdiction over the Company or any of its
properties or
business.
(q)
No material default exists in the due performance and observance of
any
term, covenant or condition of any material license, contract,
indenture,
mortgage, deed of trust, note, loan or credit agreement, or any
other agreement
or instrument evidencing an obligation for borrowed money, or any
other material
agreement or instrument to which the Company is a party or by which
the Company
may
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be bound or to which any of the properties or assets of the Company
is subject.
The Company is not in violation of any term or provision of its
certificate of
incorporation or by-laws or in violation of any material franchise,
license,
permit, applicable law, rule, regulation, judgment or decree of any
governmental
agency or court, domestic or foreign, having jurisdiction over the
Company or
any of its properties or businesses.
(r)
Except as disclosed in the Prospectus, the Company has all
requisite
corporate power and authority, and has all necessary
authorizations, approvals,
orders, licenses, certificates and permits of and from all
governmental
regulatory officials and bodies that it needs as of the date hereof
to conduct
its business as described in the Prospectus. The disclosures in the
Registration
Statement concerning the effects of federal, state and local
regulation on this
offering and the Company's business purpose as currently
contemplated are
correct in all material respects and do not omit to state a
material fact
required to be stated therein or necessary in order to make the
statements
therein, in light of the circumstances under which they were made,
not
misleading. The Company has fulfilled and performed in all material
respects all
of its material obligations with respect to such permits and no
event has
occurred that allows, or after notice or lapse of time would allow,
revocation
or termination thereof or results in any other material impairment
of the rights
of the Company thereunder. Except as may be required under the
Securities Act
and state and foreign Blue Sky laws, no other permits are required
to enter
into, deliver and perform this Agreement and to issue and sell the
Securities.
(s)
The Company has all corporate power and authority to enter into
this
Agreement and to carry out the provisions and conditions hereof,
and all
consents, authorizations, approvals and orders required in
connection therewith
have been obtained. No consent, authorization or order of, and no
filing with,
any court, government agency or other body is required for the
valid issuance,
sale and delivery, of the Securities and the consummation of the
transactions
and agreements contemplated by the Operative Agreements and as
contemplated by
the Prospectus, except with respect to applicable federal and state
securities
laws.
(t)
To the Company's knowledge, all information contained in the
questionnaires ("Questionnaires") completed by each of the
Company's officers,
directors, and stockholders and provided to the Underwriters is
true and correct
in all material respects and the Company has not become aware of
any information
which would cause the information disclosed in such Questionnaires
to become
inaccurate and incorrect in all material respects.
(u)
There is no action, suit, proceeding, inquiry, arbitration,
investigation, litigation or governmental proceeding pending or, to
the
Company's knowledge, threatened against, or involving the Company
or any
officer, director and stockholder which has not been disclosed in
the
Registration Statement, the Prospectus or the Questionnaires or any
part
thereof.
(v)
The Company has not taken, nor will it take, directly or
indirectly,
any action designed to or which might reasonably be expected to
cause or result
in, or which has constituted or which might reasonably be expected
to
constitute, the stabilization or manipulation of the price of the
Common Stock
or any security of the Company to facilitate the sale or resale of
any of the
Securities.
(w)
The Company has not issued any order preventing or suspending the
use
of any Preliminary Prospectus, Prospectus, Registration Statement
or any part
thereof.
(x)
Except as described in the Prospectus or agreements with a
Representatives, there are no claims, payments, arrangements,
agreements or
understandings relating to the payment of a finder's, consulting or
origination
fee by the Company with respect to the sale of the Securities
hereunder or any
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other arrangements, agreements or understandings of the Company
that may affect
the Underwriters' compensation, as determined by the National
Association of
Securities Dealers, Inc. ("NASD").
(y)
The Company has not made any direct or indirect payments (in
cash,
securities or otherwise) (i) to any person, as a finder's fee,
consulting fee or
otherwise, in consideration of such person raising capital for the
Company or
introducing to the Company persons who raised or provided capital
to the
Company, (ii) to any NASD member or (iii) to any person or entity
that has any
direct or indirect affiliation or association with any NASD member,
within the
twelve (12) months prior to the date of the Prospectus Supplement,
other than
payments to the Representatives or as disclosed in the filings with
the SEC.
(z)
INTENTIONALLY OMITTED.
(aa)
Based on the Questionnaires, except as set forth on Schedule 2(aa),
no
officer, director or any beneficial owner of the Company's
unregistered
securities has any direct or indirect affiliation or association
with any NASD
member. The Company will advise the Representatives and their
counsel, if it
learns that any officer, director or owner of at least 5% of the
Company's
outstanding Common Stock is or becomes an affiliate or associated
person of an
NASD member participating in the Offering.
(bb)
Neither the Company nor any other person acting on behalf of
the
Company has, directly or indirectly, given or agreed to give any
money, gift or
similar benefit (other than legal price concessions to customers in
the ordinary
course of business) to any customer, supplier, employee or agent of
a customer
or supplier, or official or employee of any governmental agency
or
instrumentality of any government (domestic or foreign) or any
political party
or candidate for office (domestic or foreign) or any political
party or
candidate for office (domestic or foreign) or other person who was,
is, or may
be in a position to help or hinder the business of the Company (or
assist it in
connection with any actual or proposed transaction) that (i) might
subject the
Company to any damage or penalty in any civil, criminal or
governmental
litigation or proceeding, (ii) if not given in the past, might have
had a
material adverse effect on the assets, business or operations of
the Company as
reflected in any of the financial statements contained in the
Prospectus or
(iii) if not continued in the future, might adversely affect the
assets,
business, operations or prospects of the Company. The Company's
internal
accounting controls and procedures are sufficient to cause the
Company to comply
with the Foreign Corrupt Practices Act of 1977, as amended.
(cc)
Any certificate signed by any duly authorized officer of the
Company
and delivered to you or to your counsel shall be deemed a
representation and
warranty by the Company to the Underwriters as to the matters
covered thereby.
(dd)
(i) The Company is in compliance in all material respects with
all
rules, laws and regulation relating to the use, treatment, storage
and disposal
of toxic substances and protection of health or the environment
("Environmental
Law") which are applicable to its business; (ii) the Company has
not received
any notice from any governmental authority or third party of an
asserted claim
under Environmental Laws; (iii) the Company has received all
permits, licenses
or other approvals required of it under applicable Environmental
Laws to conduct
its business and is in compliance with all terms and conditions of
any such
permit, license or approval; (iv) to the Company's knowledge, no
facts currently
exist that will require the Company to make future material capital
expenditures
to comply with Environmental Laws; and (v) no property which is or
has been
owned, leased or occupied by the Company has been designated as a
Superfund site
pursuant to the Comprehensive Environmental Response, Compensation
of Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et. seq.) or
otherwise
designated as a contaminated site under applicable state or local
law. The
Company has not been named as a "potentially responsible party"
under the CER,
CLA 1980.
8
<PAGE>
(ee)
The Company is not involved in any labor dispute nor, to the
knowledge
of the Company, is any such dispute threatened, which dispute would
have a
Material Adverse Effect. The Company is not aware of any existing
or imminent
labor disturbance by the employees of any of its principal
suppliers or
contractors which would have a Material Adverse Effect. The Company
is not aware
of any threatened or pending litigation between the Company and any
of its
executive officers which, if adversely determined, could have a
Material Adverse
Effect and has no reason to believe that such officers will not
remain in the
employment of the Company.
(ff)
The Company owns or possesses or has the right to use the
licenses,
copyrights, know-how (including trade secrets and other unpatented
and/or
unpatentable proprietary or confidential information, systems or
procedures),
trademarks, service marks and trade names (collectively, the
"Intellectual
Property") presently employed by it in connection with, and
material to,
individually or in the aggregate, its operations, except where the
failure to
own, possess or have the right to use would not have a Material
Adverse Effect;
and the Company has not received any notice of infringement of or
conflict with
asserted rights of others with respect to the foregoing which,
individually or
in the aggregate, has, or, would reasonably be expected to result
in, a Material
Adverse Effect. To the knowledge of the Company, the use of such
Intellectual
Property in connection with the business and operations of the
Company as
described in the Prospectus does not infringe on the rights of any
person,
except as would not, individually or in the aggregate, result in a
Material
Adverse Effect.
(gg)
All income tax returns required to be filed by the Company in
all
jurisdictions have been timely and duly filed, other than those
filings being
contested in good faith, except where the failure to so file any
such returns
could not, individually or in the aggregate, reasonably be expected
to have a
Material Adverse Effect. There are no income tax returns of the
Company that are
currently being audited by state, local or federal taxing
authorities or
agencies (and with respect to which the Company or its subsidiaries
has received
notice), where the findings of such audit could reasonably be
expected to result
in a Material Adverse Effect. All material taxes, including
withholding taxes,
penalties and interest, assessments, fees and other charges due or
claimed to be
due from such entities, have been paid, other than those being
contested in good
faith and for which adequate reserves have been provided or those
currently
payable without penalty or interest.
(hh)
No employee, officer or director of the Company is subject to
any
noncompetition agreement or non-solicitation agreement with any
employer or
prior employer which could materially affect his ability to be a
stockholder,
employee, officer and/or director of the Company.
(ii)
No more than 45% of the "value" (as defined in Section 2(a)(41) of
the
Investment Company Act of 1940, as amended ("Investment Company
Act")) of the
Company's total assets consist of, and no more than 45% of the
Company's net
income after taxes is derived from, securities other than
"Government
securities" (as defined in Section 2(a)(16) of the Investment
Company Act).
(jj)
INTENTIONALLY DELETED.
(kk)
There are no business relationships or related party
transactions
involving the Company or any other person required to be described
in the
Prospectus that have not been described as required.
(ll)
The books, records and accounts of the Company accurately and
fairly
reflect, in reasonable detail, the transactions in, and
dispositions of, the
assets of, and the results of operations of, the Company. 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 authorizations, (ii) transactions are recorded
as necessary
to permit preparation of financial
9
<PAGE>
statements in accordance with generally accepted accounting
principles and to
maintain asset accountability, (iii) access to assets is permitted
only in
accordance with management's general or specific authorization and
(iv) the
recorded accountability for assets is compared with the existing
assets at
reasonable intervals and appropriate action is taken with respect
to any
differences; the chief executive officer and the chief financial
officer of the
Company have made all certifications required by the Sarbanes-Oxley
Act and any
related rules and regulations promulgated by the SEC, and the
statements
contained in any such certification are complete and correct; the
Company
maintains "disclosure controls and procedures" (as defined in Rule
13a-14(c)
under the Exchange Act); the Company is otherwise in compliance in
all material
respects with all applicable effective provisions of the
Sarbanes-Oxley Act and
is actively taking steps to ensure that it will be in compliance
with other
applicable provisions of the Sarbanes-Oxley Act upon the
effectiveness of such
provisions.
(mm)
No transaction has occurred between or among the Company and any
of
its officers or direct
