Exhibit 1.1
MICROVISION, INC.
UNDERWRITING
AGREEMENT
November 10, 2006
MDB Capital Group, LLC
401 Wilshire Boulevard, Suite 1020
Santa Monica, California 90401
Ladies and Gentlemen:
Microvision, Inc., a Delaware
corporation (the “Company”), hereby agrees (this
“Agreement”) with you as follows:
1. Issuance of Securities .
Subject to the terms and conditions herein contained, the Company
proposes to issue and sell to MDB Capital Group, LLC (the
“Underwriter”) an aggregate of 3,317,567 shares (the
“Shares” or, in the singular, a “Share”) of
Common Stock, $0.001 par value per share (the “Common
Stock”). The Shares are described in the Registration
Statement. Capitalized terms used but not defined herein shall have
the meanings set forth in the Registration Statement.
2. Terms of Offering . The
Company understands that the Underwriter proposes to make a public
offering of the Shares (the “Offering”) as soon as the
Underwriter deems advisable after this Agreement has been executed
and delivered. The Company is further advised by you that the
Shares are to be offered to the public initially upon the terms set
forth in the Registration Statement.
3. Purchase, Sale and
Delivery . On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms
and conditions herein set forth, the Company agrees to issue and
sell to the Underwriter, and the Underwriter agrees to purchase
from the Company, the Shares at a purchase price of $2.21075 per
Share (the “Share Purchase Price”).
Payment for the Shares to be sold by
the Company shall be made to the Company in federal or other funds
immediately available at such place in Los Angeles, California as
you shall designate against delivery of such Shares for the account
of the Underwriter through the facilities of The Depository Trust
Company. Such payment and delivery shall be made at 10:00 A.M., New
York City time, on November 16, 2006, or at such other time on the
same day or such other date, not later than November 16, 2006, as
you and the Company shall agree upon. The time and date of such
payment and delivery are hereinafter referred to as the
“Closing Date.”
The Shares shall be registered in
such names in such denominations as you shall request in writing
not later than two full business days prior to the Closing Date.
The Shares shall be delivered to you through the facilities of The
Depository Trust Company on the Closing Date for the account of the
Underwriter, with any transfer taxes payable in connection with the
transfer of the Shares to the Underwriter duly paid, against
payment of the purchase price therefor.
4. Representations and Warranties
of the Company . The Company represents and warrants to the
Underwriter that, as of the Applicable Time (as hereinafter
defined) and as of the Closing Date:
(a) The Company meets the
requirements for use of Form S-3 under the Act. A registration
statement on Form S-3 (File No. 333-128019), including a
related base prospectus in respect of the Shares and certain other
securities, (i) has been prepared and filed in accordance with
the provisions of the Act with the Commission, (ii) initially
became effective within three years of the Closing Date, and
(iii) is effective under the Act (including any amendments
thereto filed prior to the Applicable Time). The Company may have
filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b) under the Act,
one or more Preliminary Prospectuses, each of which has previously
been furnished to you. The Company will file with the Commission a
Final Prospectus Supplement, which shall contain all information
required by the Act, and except to the extent the Underwriter shall
agree in writing to a modification (such agreement not to be
unreasonably withheld), shall be similar in all substantive
respects to the most recent Preliminary Prospectus and shall
contain only (i) such information as may be included in the
final term sheet as prepared pursuant to Section 5(e) hereto
and (ii) such specific additional information and other
changes (beyond that contained in the most recent Preliminary
Prospectus) as the Company has advised you, prior to the Applicable
Time, will be included or made therein.
As used in this
Agreement:
“Act”
shall mean the Securities Act of
1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.
“1934 Act”
shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Applicable
Time” shall mean
5:00 p.m., Los Angeles time, on November 10, 2006.
“Base
Prospectus” shall
mean the prospectus referred to in the first paragraph of this
Section 4(a) contained in the Registration Statement at the
Effective Date.
“Disclosure
Package” shall mean
(i) the most recent Preliminary Prospectus, (ii) the
final term sheet as prepared pursuant to Section 5(e) hereto,
(iii) the Issuer Free Writing Prospectuses, if any, identified
in Schedule I hereto and (iv) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package.
“Effective
Date” shall mean
each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective under the Act.
“Final
Prospectus” shall
mean the Final Prospectus Supplement, together with the Base
Prospectus.
“Final Prospectus
Supplement” shall
mean the prospectus supplement relating to the Shares, filed
pursuant to Rule 424(b) under the Act after the Applicable
Time.
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“Free Writing
Prospectus” shall
mean a free writing prospectus, as defined in Rule 405 under the
Act.
“Issuer Free Writing
Prospectus” shall
mean an issuer free writing prospectus, as defined in Rule 433
under the Act.
“Preliminary
Prospectus” shall
mean any preliminary prospectus supplement to the Base Prospectus
which describes the Shares and the Offering and is used prior to
filing of the Final Prospectus, together with the Base
Prospectus.
“Registration
Statement” shall
mean the registration statement referred to in the first paragraph
of this Section 4(a), including exhibits and financial
statements and any prospectus supplement relating to the Shares
that is filed with the Commission pursuant to Rule 424(b) under the
Act and deemed part of such registration statement pursuant to Rule
430B under the Act, as amended at the Applicable Time and, in the
event any post-effective amendment thereto becomes effective prior
to the Closing Date, shall also mean such registration statement as
so amended.
Any reference to the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include any documents incorporated
by reference therein as of the date of such Base Prospectus,
Preliminary Prospectus or Final Prospectus, as the case may be. Any
reference to the “most recent Preliminary Prospectus”
shall be deemed to refer to the latest Preliminary Prospectus filed
pursuant to Rule 424(b) under the Act prior to or at the Applicable
Time (including for purposes hereof, any documents incorporated by
reference therein prior to or at the Applicable Time). Any
reference to any amendment or supplement to the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include any documents incorporated by reference in
such Base Prospectus, Preliminary Prospectus or Final Prospectus,
as the case may be. Any reference to the Registration Statement
shall be deemed to refer to and include any documents incorporated
by reference therein. Any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
documents deemed to be incorporated therein by
reference.
(b) The Commission has not issued
any stop order preventing or suspending the use of any Preliminary
Prospectus or the Final Prospectus or suspending the effectiveness
of the Registration Statement, and no proceeding or examination for
such purpose has been instituted or, to the Company’s
knowledge, threatened by the Commission. The Commission has not
notified the Company of any objection to the use of the form of the
Registration Statement.
(c) (i) The Registration Statement
complied and will comply in all material respects on the Effective
Date and on the Closing Date, and any amendment to the Registration
Statement filed after the date hereof will comply in all material
respects when filed with the Commission, to the requirements of the
Act and the 1934 Act, as applicable; (ii) the most recent
Preliminary Prospectus complied, and the Final Prospectus (and any
supplement thereto) will comply, in all material respects when
filed with the Commission pursuant to 424(b) and on the Closing
Date to the requirements of the Act; (iii) the documents
incorporated by reference in the most recent Preliminary Prospectus
or the Final Prospectus complied, and any further documents to be
filed and so incorporated will comply, when filed with the
Commission, in all material respects to the requirements of the
1934 Act or the Act, as applicable; and (iv) each Issuer Free
Writing Prospectus complied or will comply in all material respects
to the
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requirements of the Act on the date
of first use, and the Company has complied with any filing
requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Act.
(d) The Registration Statement did
not, as of the Effective Date and at the Applicable Time, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein not misleading. The foregoing
sentence does not apply to statements in or omissions from the
Registration Statement based upon and in conformity with written
information furnished to the Company by or on behalf of the
Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of
the Underwriter consists of the Underwriter Information (as
hereinafter defined).
(e) The Final Prospectus (together
with any supplement thereto) will not, as of its date and on the
Closing Date, contain any untrue statement of a material fact or
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. The foregoing sentence does not
apply to statements in or omissions from the Final Prospectus based
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of the Underwriter consists
of the Underwriter Information.
(f) If there occurs an event or
development as a result of which the Disclosure Package would
include an untrue statement of a material fact or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not
misleading, the Company will notify promptly the Underwriter so
that any use of the Disclosure Package may cease until it is
amended or supplemented.
(g) Each Issuer Free Writing
Prospectus, (i) when considered together with the Disclosure
Package as of the Applicable Time, did not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and
(ii) as of its issue date and as of the Closing Date, did not,
does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, including any document incorporated therein
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of the
Underwriter consists of the Underwriter Information.
(h) (i) At the earliest time after
the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Shares and (ii) as of the
Applicable Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is
not an “Ineligible Issuer” (as defined in Rule 405
under the Act), without taking account of any determination by the
Commission pursuant to Rule 405 under the Act that it is not
necessary that the Company be considered an Ineligible
Issuer.
(i) As of the date of this
Agreement, the Company has an authorized and outstanding
capitalization as set forth in the section of the Disclosure
Package entitled
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“Description of Our Capital
Stock” and, as of the Closing Date, as the case may be, the
Company shall have an authorized and outstanding capitalization as
set forth in the Disclosure Package (subject, in each case, to the
issuance of shares of Common Stock upon exercise of stock options
and warrants disclosed as outstanding in the Disclosure Package and
grant of options under existing stock option plans disclosed in the
Disclosure Package); all of the issued and outstanding securities,
including the Common Stock, of the Company prior to the issuance of
the Shares to be sold by the Company have been duly authorized and
are validly issued, fully paid and non-assessable, have been issued
in compliance in all material respects with all federal and state
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar
right.
(j) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its
properties and conduct its business as disclosed in the Disclosure
Package.
(k) The Company is duly qualified to
do business as a foreign corporation and is in good standing in
each jurisdiction 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 or in good standing would not,
individually or in the aggregate, have a material adverse effect on
the business, properties, financial condition or results of
operation of the Company (a “Material Adverse
Effect”).
(l) Each of the incorporated
documents (collectively, the “Incorporated Documents”),
as amended, complied as to form when so filed in all material
respects with the 1934 Act and the applicable rules and regulations
of the Commission.
(m) The Shares to be sold by the
Company have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be
validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive rights, resale
rights, rights of first refusal or similar rights.
(n) The capital stock of the
Company, including the Shares, conforms in all material respects to
the description thereof contained in the Disclosure Package, and
the certificates for the Shares are in due and proper
form.
(o) This Agreement has been duly
authorized, executed and delivered by the Company.
(p) The Company is not in violation
of its charter or by-laws, or in default under (nor has any event
occurred which with notice, lapse of time or both would result in
any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Company is a
party or by which it or any of its properties may be bound or
affected, in each case except where any such breach, violation or
default would not, individually or in the aggregate, have a
Material Adverse Effect; the Company’s activities do not
breach or violate, any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to
such activities, in each case except where any such breach or
violation would not, individually or in the aggregate, have a
Material Adverse Effect.
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(q) The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or
violation of or constitute a default under) the charter or by-laws
of the Company, or any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which
the Company is a party or by which it or any of its properties may
be bound or affected, or any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to
the Company, in each case except where any such breach, violation
or default would not, individually or in the aggregate, have a
Material Adverse Effect.
(r) No approval, authorization,
consent or order of, or qualification with, or filing with any
governmental or regulatory commission, board, body, authority or
agency is required in connection with the issuance and sale of the
Shares or the performance by the Company of its obligations under
this Agreement other than registration of the Shares under the Act,
which has been or will be effected, and any necessary qualification
under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriter or under
the rules and regulations of the NASD.
(s) [Reserved]
(t) Except as disclosed in the
Registration Statement, or waived in writing: (A) (i) no
person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock or
other equity interests of the Company, and (iii) no person has
the right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the Shares, in the
case of each of the foregoing clauses (i), (ii) and (iii),
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby or otherwise; and (B) no person has the right,
contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital
stock or other equity interests of the Company, or to include any
such shares or interests in the Registration Statement or the
offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise.
(u) The Company has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order
to conduct its business, except where the failure to have any such
licenses, authorizations, consents or approvals or to have made any
such filings would not, individually or in the aggregate, have a
Material Adverse Effect; the Company is not in violation of any
federal, state, local or foreign law, regulation or rule applicable
to the Company, except where any such violations would not,
individually or in the aggregate, have a Material Adverse Effect;
the Company is not in violation of, or in default under, nor has it
received notice of any
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proceedings relating to revocation
or modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or
rule or any decree, order or judgment applicable to the Company,
except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material
Adverse Effect.
(v) All legal or governmental
proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents
of a character required to be disclosed in the Registration
Statement or to be filed as an exhibit to the Registration
Statement have been so disclosed or filed as required.
(w) Except as disclosed in the
Registration Statement, there are no actions, suits, claims,
investigations or proceedings pending or threatened or, to the
Company’s knowledge, contemplated to which the Company or any
of its directors or officers is or would be a party or of which any
of the properties of the Company is or would be subject at law or
in equity, before or by any governmental or regulatory commission,
board, body, authority or agency, except any such action, suit,
claim, investigation or proceeding which would not result in a
judgment, decree or order having, individually or in the aggregate,
a Material Adverse Effect or preventing consummation of the
transactions contemplated hereby; there are no legal or
governmental proceedings pending before or by any governmental or
regulatory commission, board, body, authority or agency relating to
the Company’s business practices and activities or to its
securities, and, to the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or others, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(x) PricewaterhouseCoopers LLP, who
has certified certain the financial statements of the Company, and
whose reports are filed with the Commission and incorporated by
reference as part of the Registration Statement, are independent
public accountants as required by the Act. Except as disclosed in
the Registration Statement and as pre-approved in accordance with
the requirements set forth in Section 10A of the 1934 Act,
PricewaterhouseCoopers LLP has not been engaged by the Company to
perform any “prohibited activities” (as defined in
Section 10A of the 1934 Act).
(y) The audited financial statements
incorporated by reference as part of the Registration Statement,
together with the related notes and schedules, present fairly in
all material respects the financial position of the Company as of
the dates indicated and the results of operations and cash flows of
the Company for the periods specified and have been prepared in
compliance with the requirements of the Act and in conformity with
generally accepted accounting principles applied on a consistent
basis during the periods involved (except as otherwise disclosed
therein); any pro forma financial statements or data included in
the Registration Statement comply with the requirements of
Regulation S-X of the Act and the assumptions used in the
preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and
data; the other Company financial data (including statistical data
derived therefrom) set forth in the Registration Statement were
prepared on a basis consistent with the financial statements and
books and records of the Company and its material subsidiaries;
there are no financial statements (historical or pro forma) that
are required to be included in the Registration Statement that are
not included as required; and the Company does not have any
material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations) required to be
disclosed in the Registration Statement, not disclosed in the
Registration Statement.
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(z) Except as disclosed in the
Registration Statement, subsequent to the respective dates as of
which information is given in the Registration Statement, there has
not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business,
properties, management, financial condition or results of
operations of the Company, whether or not in the ordinary course of
business (ii) other than in the ordinary course of business,
any transaction which is material to the Company, (iii) any
obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Company which is material to the
Company, (iv) any change in the capital stock or outstanding
indebtedness of the Company other than pursuant to the terms of
outstanding debt and equity securities or (v) any dividend or
distribution of any kind declared, paid or made on the capital
stock of the Company.
(aa) The Company is not and, after
giving effect to the Offering as described in the Registration
Statement, will not be an “investment company” or an
entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company
Act of 1940, as amended (the “Investment Company
Act”).
(bb) Except as disclosed in the
Registration Statement, the Company owns all property (real and
personal) described in the Registration Statement as being owned by
it, free and clear of all liens, claims, security interests or
other encumbrances and defects, except where failure to do so would
not, individually or in the aggregate, have a Material Adverse
Effect; to the Company’s knowledge, all the property
described in the Registration Statement as being held under lease
by the Company is held by them under valid and enforceable leases,
except where failure to do so would not, individually or in the
aggregate, have a Material Adverse Effect.
(cc) Except as disclosed in the
Registration Statement, the Company owns, or has obtained valid and
enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, trademarks (both registered and
unregistered), trade names, copyrights, trade secrets and other
proprietary information described in the Registration Statement as
being owned or licensed by it or which are necessary for the
conduct of its business as presently conducted (collectively,
“Intellectual Property”), except where the failure to
own, license or have such rights would not, individually or in the
aggregate, have a Material Adverse Effect; except as disclosed in
the Registration Statement and except as would not, individually or
in the aggregate, have a Material Adverse Effect: (i) the
Company has taken reasonable steps necessary to secure interests in
its Intellectual Property from its employees and contractors;
(ii) none of the technology employed by the Company has been
obtained or is being used by the Company in violation of any
contractual obligation binding on the Company or, to the
Company’s knowledge, any of its officers, directors or
employees or otherwise in violation of the rights of others;
(iii) there are no third parties who, to the Company’s
knowledge, have or will be able to establish rights to any
Intellectual Property, except for the ownership rights of the
owners of the Intellectual Property which is licensed to the
Company; (iv) to the Company’s knowledge, there is no
infringement by third parties of any Intellectual Property;
(v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the Company’s rights in or to any Intellectual Property, and
the Company is unaware of any facts which could form a reasonable
basis for any such claim; (vi) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any
Intellectual Property, and the Company is unaware of any facts
which
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could form a reasonable basis for
any such claim; (vii) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others, and the Company has not received any written or
oral communications from a third party claiming, that the Company
infringes or otherwise violates, or by conducting the business of
the Company as described in the Final Prospectus would infringe or
otherwise violate, any patent, trademark, copyright, trade secret
or other proprietary rights of others, and the Company is unaware
of any facts which could form a reasonable basis for any such
claim; and (viii) to the Company’s knowledge, there is
no patent or patent application that contains claims that interfere
with the issued or pending claims of any of the Intellectual
Property.
(dd) Except as disclosed in the
Registration Statement and except as would not, individually or in
the aggregate, have a Material Adverse Effect, (i) the Company
is not engaged in any unfair labor practice, (ii) there is
(A) no unfair labor practice complaint pending or, to the
Company’s knowledge, threatened against the Company before
the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under collective bargaining agreements
is pending or threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the Company’s knowledge,
threatened against the Company and (C) no union representation
dispute currently existing concerning the employees of the Company,
and (iii) to the Company’s knowledge, (A) no union
organizing activities are currently taking place concerning the
employees of the Company and (B) there has been no violation
of any applicable law relating to discrimination in the hiring,
promotion or pay of employees, any applicable wage or hour laws or
any provision of the Employee Retirement Income Security Act of
1974 (“ERISA”) or the rules and regulations promulgated
thereunder concerning the employees of the Company.
(ee) Except as disclosed in the
Registration Statement and except as would not, individually or in
the aggregate, have a Material Adverse Effect, the Company is in
compliance with, and holds all permits, authorizations and
approvals required under, Environmental Laws (as defined below),
except to the extent that failure to so comply or to hold such
permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect; there are no past,
present or, to the Company’s knowledge, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any costs or liabilities to the Company
under, or to interfere with or prevent compliance by the Company
with, Environmental Laws; except as would not, individually or in
the aggregate, have a Material Adverse Effect, the Company
(i) is not the subject of any investigation, (ii) has not
received any notice or claim, (iii) is not a party to or, to
its knowledge, affected by any pending or threatened action, suit
or proceeding, (iv) is not bound by any judgment, decree or
order or (v) has not entered into any agreement, in each case
relating to any alleged violation of any Environmental Law or any
actual or alleged release or threatened release or cleanup at any
location of any Hazardous Materials (as defined below) (as used
herein, “Environmental Law”) means any federal, state,
local or foreign law, statute, ordinance, rule, regulation, order,
decree, judgment, injunction, permit, license, authorization or
other binding requirement, or common law, relating to health,
safety or the protection, cleanup or restoration of the environment
or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and “Hazardous Materials” means
any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is
regulated by or may give rise to liability under any Environmental
Law).
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(ff) All tax returns required to be
filed by the Company and its subsidiaries have been filed, and all
taxes and other assessments of a similar nature (whether imposed
directly or through withholding) including any interest, additions
to tax or penalties applicable thereto due or claimed to be due
from such entities have been paid, other than those that are
immaterial in amount or that are being contested in good faith and
for which adequate reserves have been provided, except as would
not, individually or in the aggregate, have a Material Adverse
Effect.
(gg) The Company maintains insurance
covering its properties, operations, personnel and businesses as is
reasonable and customary; such insurance insures against such
losses and risks to an extent which is adequate in accordance with
customary industry practice to protect the Company and its
business; all such insurance is fully in force on the date hereof
and will be fully in force at the Closing Date and any Option
Closing Date, except as would not, individually or in the
aggregate, have a Material Adverse Effect.
(hh) The Company has not sustained
since the date of the last audited financial statements
incorporated by reference as part of the Registration Statement any
loss or interference with its respective 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, except as disclosed in the Registration
Statement and except as would not, individually or in the
aggregate, have a Material Adverse Effect.
(ii) The Company has not sent or
received any communicat
