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EXHIBIT 1.1
4,700,000 SHARES
ALNYLAM PHARMACEUTICALS, INC.
Common Stock, Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
December 12, 2006
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December 12, 2006
Banc of America Securities LLC
9 West 57th Street
47th floor
New York, NY 10019
Ladies and Gentlemen:
Alnylam Pharmaceuticals, Inc., a Delaware corporation (the
"COMPANY"),
proposes to issue and sell to Banc of America Securities LLC (the
"UNDERWRITER")
4,700,000 shares (the "FIRM SHARES") of its common stock, par value
$0.01 per
share (the "COMMON STOCK"). The Company also proposes to issue and
sell to the
several Underwriters not more than an additional 705,000 shares of
its Common
Stock (the "ADDITIONAL SHARES") if and to the extent that you shall
have
determined to exercise the right to purchase such shares of Common
Stock granted
to you in Section 2 hereof. The Firm Shares and the Additional
Shares are
hereinafter collectively referred to as the "SHARES."
The Company has filed with the Securities and Exchange Commission
(the
"COMMISSION") a registration statement (the file number of which is
set forth in
Schedule I hereto) on Form S-3, including a prospectus, relating to
the Shares,
to be issued from time to time by the Company. The registration
statement as
amended to the date of this Agreement, including the information
(if any) deemed
to be part of the registration statement at the time of
effectiveness pursuant
to Rule 430A or Rule 430B under the Securities Act of 1933, as
amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION
STATEMENT,"
and the related prospectus covering the Shares dated November 27,
2006, in the
form first used to confirm sales of the Shares (or in the form
first made
available to you by the Company to meet requests of purchasers
pursuant to Rule
173 under the Securities Act) is hereinafter referred to as the
"BASIC
PROSPECTUS." The Basic Prospectus, as supplemented by the
prospectus supplement
specifically relating to the Shares in the form first used to
confirm sales of
the Shares (or in the form first made available to you by the
Company to meet
requests of purchasers pursuant to Rule 173 under the Securities
Act) is
hereinafter referred to as the "PROSPECTUS," and the term
"PRELIMINARY
PROSPECTUS" means any preliminary form of the Prospectus. For
purposes of this
Agreement, "FREE WRITING PROSPECTUS" has the meaning set forth in
Rule 405 under
the Securities Act, "TIME OF SALE PROSPECTUS" means the preliminary
prospectus
and the information included in Schedule II hereto, together with
the free
writing prospectuses, if any, each
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identified in Schedule I hereto. As used herein, the terms
"REGISTRATION
STATEMENT," "BASIC PROSPECTUS," "PRELIMINARY PROSPECTUS," "TIME OF
SALE
PROSPECTUS," "PROSPECTUS" and "FREE WRITING PROSPECTUS" shall
include the
documents, if any, incorporated by reference therein. The terms
"SUPPLEMENT,"
"AMENDMENT," and "AMEND" as used herein with respect to the
Registration
Statement, the Basic Prospectus, the Time of Sale Prospectus, any
preliminary
prospectus or free writing prospectus shall include all documents
subsequently
filed by the Company with the Commission pursuant to the Securities
Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), that are deemed to be
incorporated by
reference therein.
1.
Representations and Warranties. The Company represents and
warrants to and agrees with you that:
(a) The
Registration Statement has become effective under the
Securities Act; the Company has complied to the Commission's
satisfaction with
all requests of the Commission for additional or supplemental
information; no
stop order suspending the effectiveness of the Registration
Statement is in
effect, and no proceedings for such purpose have been instituted
or, to the
knowledge of the Company, are pending before or contemplated or
threatened by
the Commission.
(b) (i) Each
document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Time of Sale
Prospectus or
the Prospectus complied or will comply when so filed in all
material respects
with the Exchange Act and the applicable rules and regulations of
the Commission
thereunder, (ii) the Registration Statement, when it became
effective, did not
contain, and as amended or supplemented, if applicable, will not
contain any
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,
(iii) the Registration Statement and the Prospectus comply, and as
amended or
supplemented, if applicable, will comply in all material respects
with the
Securities Act and the applicable rules and regulations of the
Commission
thereunder, (iv) the Time of Sale Prospectus does not, and at the
time of each
sale of the Shares in connection with the offering when the
Prospectus is not
yet available to prospective purchasers and at the Closing Date (as
defined in
Section 4), the Time of Sale Prospectus, as then amended or
supplemented by the
Company, if applicable, will not, contain any untrue statement of a
material
fact or omit to state a material fact necessary to make the
statements therein,
in the light of the circumstances under which they were made, not
misleading,
and (v) the Prospectus does not contain and, as amended or
supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to
state a material fact necessary to make the statements therein, in
the light of
the circumstances under which they were made, not misleading,
except that the
representations and warranties set forth in this paragraph do not
apply to
statements or omissions in the Registration Statement, the Time of
Sale
Prospectus or the Prospectus based
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upon information relating to you furnished to the Company in
writing by you
expressly for use therein.
(c) The
Company is not an "ineligible issuer" in connection with
the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any
free writing prospectus that the Company is required to file
pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with
the Commission
in accordance with the requirements of the Securities Act and the
applicable
rules and regulations of the Commission thereunder. Each free
writing prospectus
that the Company has filed, or is required to file, pursuant to
Rule 433(d)
under the Securities Act or that was prepared by or on behalf of or
used or
referred to by the Company complies or will comply in all material
respects with
the requirements of the Securities Act and the applicable rules and
regulations
of the Commission thereunder. Except for the free writing
prospectuses, if any,
identified in Schedule I hereto, the Company has not prepared, used
or referred
to, and will not, without your prior consent, prepare, use or refer
to, any free
writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction
of its
incorporation, has the corporate power and authority to own its
properties and
to conduct its business as described in the Time of Sale Prospectus
and the
Prospectus, to enter into and perform its obligations under this
Agreement, and
is duly qualified to transact business and is in good standing in
each
jurisdiction in which the conduct of its business or its ownership
or leasing of
property requires such qualification, except to the extent that the
failure to
be so qualified or be in good standing would not result in a
Material Adverse
Change (as defined in Section 1(n) below).
(e) Each
subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of the
jurisdiction of its incorporation, has the corporate power and
authority to own
its properties and to conduct its business as described in the Time
of Sale
Prospectus and the Prospectus, and is duly qualified to transact
business and is
in good standing in each jurisdiction in which the conduct of its
business or
its ownership or leasing of property requires such qualification,
except to the
extent that the failure to be so qualified or be in good standing
would not
result in a Material Adverse Change; all of the issued shares of
capital stock
of each subsidiary of the Company have been duly and validly
authorized and
issued, are fully paid and non assessable and are owned directly by
the Company,
free and clear of all liens, encumbrances, equities or claims. The
Company does
not own or control, directly or indirectly, any corporation,
association or
other entity other than the subsidiaries listed in Exhibit 21.1 to
its Annual
Report on Form 10-K for the fiscal year ended December 31,
2005.
(f) This
Agreement has been duly authorized, executed and
delivered by the Company.
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(g) The
authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof
contained in
the Time of Sale Prospectus and the Prospectus.
(h) The shares
of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized, are validly issued, fully
paid and non
assessable and have been issued in compliance with federal and
state securities
laws. None of the shares of Common Stock outstanding prior to the
issuance of
the Shares were issued in violation of any preemptive rights,
rights of first
refusal or other similar rights to subscribe for or purchase
securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive
rights, rights of first refusal or other rights to purchase, or
equity or debt
securities convertible into or exchangeable or exercisable for, any
capital
stock of the Company or any of its subsidiaries other than those
described in
the Time of Sale Prospectus and the Prospectus, those issued or
granted under
employee stock purchase or stock incentive plans described in the
Time of Sale
Prospectus and the Prospectus, or those issued or granted after the
date
thereof. The description of the Company's stock option, stock bonus
and other
stock plans or arrangements, and the options or other rights
granted thereunder,
contained in the Time of Sale Prospectus and the Prospectus
accurately and
fairly presents in all material respects the information required
to be shown
with respect to such plans, arrangements, options and rights.
(i) The Shares
to be purchased by you from the Company have been
duly authorized for issuance and sale pursuant to this Agreement
and, when
issued and delivered in accordance with the terms of this Agreement
against
payment of consideration set forth herein, will be validly issued,
fully paid
and non assessable, and the issuance of the Shares will not be
subject to any
preemptive or similar rights.
(j) Other than
(A) the Collaboration Agreement dated as of
February 8, 2005 by and between the Company and Medtronic, Inc.,
(B) the
Investor Rights Agreement dated as of March 11, 2004 by and between
the Company
and Isis Pharmaceuticals, Inc., (C) the Registration Rights
Agreement dated as
of July 31, 2003 by and among the Company and the Investors (as
defined
therein), (D) the Investor Rights Agreement dated as of September
8, 2003 by and
between the Company and Merck & Co., Inc., and (E) the Investor
Rights Agreement
dated as of September 6, 2005 by and between the Company and
Novartis Pharma AG,
there are no contracts, agreements or understandings between the
Company and any
person granting such person the right to require the Company to
file a
registration statement under the Securities Act with respect to any
securities
of the Company. There are no contracts, agreements or
understandings between the
Company and any person granting such person the right to include
such securities
with the Shares registered pursuant to the Registration Statement,
except for
such rights as have been waived.
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(k)
PricewaterhouseCoopers LLP, who have expressed their opinion
with respect to the financial statements (which term as used in
this Agreement
includes the related notes thereto) that are incorporated by
reference in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, are an
independent registered public accounting firm with respect to the
Company and
its subsidiaries within the meaning of the Securities Act and the
rules and
regulations adopted by the Commission and the Public Company
Accounting
Oversight Board (United States).
(l) The
financial statements that are incorporated by reference in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus
present fairly, in all material respects, the consolidated
financial position of
the Company and its subsidiaries as of and at the dates indicated
and the
results of their operations and cash flows for the periods
specified. Such
financial statements have been prepared in conformity with
generally accepted
accounting principles as applied in the United States applied on a
consistent
basis throughout the periods involved, except as may be expressly
stated in the
related notes thereto. No other financial statements or supporting
schedules are
required to be included or incorporated by reference in the
Registration
Statement. The financial data set forth in Company's Form 10-K for
the year
ended December 31, 2005 under the caption "Selected Consolidated
Financial Data"
and in the Time of Sale Prospectus and the Prospectus under the
caption
"Dilution" fairly present, in all material respects, the
information set forth
therein on a basis consistent with that of the audited financial
statements
contained or incorporated by reference in the Registration
Statement.
(m) Neither
the Company nor any of its subsidiaries is in
violation of its charter or by-laws or is in default (or, with the
giving of
notice or lapse of time, would be in default) ("DEFAULT") under any
indenture,
mortgage, loan or credit agreement, note, contract, franchise,
lease or other
instrument to which the Company or any of its subsidiaries is a
party or by
which it or any of them may be bound, or to which any of the
property or assets
of the Company or any of its subsidiaries is subject (each, an
"EXISTING
INSTRUMENT"), except for such Defaults as would not, individually
or in the
aggregate, result in a Material Adverse Change. The Company's
execution,
delivery and performance of this Agreement and consummation of the
transactions
contemplated hereby and by the Time of Sale Prospectus and the
Prospectus (i)
have been duly authorized by all necessary corporate action and
will not result
in any violation of the provisions of the charter or by-laws of the
Company or
any subsidiary, (ii) will not conflict with or constitute a breach
of, or
Default under, or result in the creation or imposition of any lien,
charge or
encumbrance upon any property or assets of the Company or any of
its
subsidiaries pursuant to, or require the consent of any other party
to, any
Existing Instrument, except for such conflicts, breaches, Defaults,
liens,
charges or encumbrances as would not, individually or in the
aggregate, result
in a Material Adverse Change and (iii) will not result in any
violation of any
law, administrative regulation or administrative or court decree
applicable to
the Company or any subsidiary, except for such violations as would
not,
individually
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or in the aggregate, result in a Material Adverse Change. No
consent, approval,
authorization or other order of, or registration, qualification or
filing with,
any court or other governmental or regulatory authority or agency,
is required
for the Company's execution, delivery and performance of its
obligations under
this Agreement and consummation of the transactions contemplated
hereby and by
the Time of Sale Prospectus and the Prospectus, except such as have
been
obtained or made by the Company and are in full force and effect
under the
Securities Act, applicable state securities or blue sky laws and
from the
National Association of Securities Dealers, Inc. (the "NASD").
(n) Except as
otherwise disclosed in the Time of Sale Prospectus
and the Prospectus, since the respective dates as of which
information is given
in the Time of Sale Prospectus and the Prospectus, there has been
no material
adverse change, or any development that could reasonably be
expected to result
in a material adverse change, in the condition, financial or
otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries,
considered as one entity, whether or not arising from transactions
in the
ordinary course of business (any such change is called a "MATERIAL
ADVERSE
CHANGE"); (ii) the Company and its subsidiaries, considered as one
entity, have
not (A) incurred any material liability or material obligation,
indirect, direct
or contingent, not in the ordinary course of business or (B)
entered into any
material transaction or material agreement not in the ordinary
course of
business; and (iii) there has been (A) no dividend or distribution
of any kind
declared, paid or made by the Company or, except for dividends paid
to the
Company or other subsidiaries, any of its subsidiaries on any class
of capital
stock or, (B) except for repurchases by the Company of Common
Stock, no
repurchase or redemption by the Company or any of its subsidiaries
of any class
of capital stock.
(o) Each
preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto,
or filed
pursuant to Rule 424 under the Securities Act, complied when so
filed in all
material respects with the Securities Act and the applicable rules
and
regulations of the Commission thereunder.
(p) The
Company is not, and after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof
as described
in the Time of Sale Prospectus and the Prospectus will not be,
required to
register as an "investment company" as such term is defined in the
Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT").
(q) Each of
the Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with
policies in such
amounts and with such deductibles and covering such risks as the
Company has
deemed adequate and customary for its businesses including, but not
limited to,
policies covering real and personal property owned or leased by the
Company and
its subsidiaries against theft, damage, destruction and acts of
vandalism. The
Company has no reason to believe that it or any of its subsidiaries
will not be
able
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(i) to renew its existing insurance coverage as and when such
coverage expires
or (ii) to obtain comparable coverage from similar institutions as
may be
necessary or appropriate to conduct its business as now conducted
and at a cost
that would not result in a Material Adverse Change.
(r) A
notification form for the listing of the Shares has been
submitted to the Nasdaq Global Market, and no objection to such
additional
listing, written or oral, has been received by the Company.
(s) Except as
described in the Time of Sale Prospectus and the
Prospectus, there are no legal or governmental actions, suits or
proceedings
pending or, to the Company's knowledge, threatened (i) against or
affecting the
Company or any of its subsidiaries, (ii) which has as the subject
thereof any
officer or director of, or property owned or leased by, the Company
or any of
its subsidiaries or (iii) relating to environmental or
discrimination matters,
where in any such case (A) there is a reasonable possibility that
such action,
suit or proceeding might be determined adversely to the Company or
such
subsidiary and (B) any such action, suit or proceeding, if so
determined
adversely, would reasonably be expected to result in a Material
Adverse Change
or adversely affect the consummation of the transactions
contemplated by this
Agreement. No material labor dispute with the employees of the
Company or any of
its subsidiaries, or , to the Company's knowledge, with the
employees of any
principal supplier of the Company, exists or, to the Company's
knowledge, is
threatened or imminent that could result in a Material Adverse
Change. There are
no statutes, regulations, contracts or other documents that are
required to be
described in the Registration Statement, the Time of Sale
Prospectus or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not
described or filed as required.
(t) Except as
described in the Time of Sale Prospectus and the
Prospectus, the Company and its subsidiaries own or have rights to
use the
patents, patent applications, trade and service marks, trade and
service mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets,
technology, know-how and other intellectual property (collectively,
the
"INTELLECTUAL PROPERTY") necessary for the conduct of the Company's
business as
now conducted. Except as described in the Time of Sale Prospectus
and the
Prospectus, (a) there is no pending action, suit, proceeding or
claim or, to the
Company's knowledge, threatened action, suit, proceeding or claim,
by others,
challenging the Company's rights in or to any such Intellectual
Property, and
the Company is unaware of any material fact which would form a
reasonable basis
for any such claim; (b) there is no pending action, suit,
proceedings or claim
or, to the Company's knowledge, threatened action, suit, proceeding
or claim, by
others, that the Company infringes or otherwise violates any
patent, trademark,
copyright, trade secret or other proprietary rights of others, and
the Company
is unaware of any other material fact which would form a reasonable
basis for
any such claim; (c) there is no pending action, suit, proceedings
or claim or,
to the Company's knowledge, threatened action, suit, proceeding or
claim, by
others
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challenging the validity or scope of any such Intellectual Property
owned by the
Company, and with respect to any such Intellectual Property that
the Company has
a right to use, the Company is unaware of any such claim, and, in
either case,
the Company is unaware of any material fact which would form a
reasonable basis
for any such claim; (d) there is no prior art of which the Company
is aware that
would reasonably be expected to render invalid any patent owned by
the Company
or that the Company has rights to use the inventions covered
thereby which has
not been disclosed to the applicable government patent office; (e)
the Company's
license agreements mentioned in the Time of Sale Prospectus and the
Prospectus
are in full force and effect, and the Company is not in material
breach or
default thereof, and to the knowledge of the Company, other parties
to those
agreements are not in material breach or default thereof; and (f)
the granted or
issued patents, trademarks, and copyrights owned by the Company
have been duly
maintained and are in full force and in effect, and none of such
patents,
trademarks and copyrights have been adjudged invalid or
unenforceable in whole
or in part.
(u) All patent
applications owned by the Company that describe
inventions necessary to conduct the business of the Company in the
manner
described in the Time of Sale Prospectus and the Prospectus (the
"COMPANY PATENT
APPLICATIONS") have been duly and properly filed with the U. S.
Patent and
Trademark Office (the "PTO") or foreign and international patent
authorities. To
the knowledge of the Company, the Company has complied with the
PTO's duty of
candor and disclosure for the Company Patent Applications and has
made no
material misrepresentation during prosecution of the Company
Patent
Applications. Except as described in the Time of Sale Prospectus
and the
Prospectus, to the Company's knowledge, the Company Patent
Applications disclose
patentable subject matters, and the Company has not been notified
of any
inventorship challenges nor has any interference been declared or
provoked nor
is any material fact known by the Company that would preclude the
issuance of
patents with respect to the Company Patent Applications or would
render such
patents invalid or unenforceable.
(v) The
statements contained in the Time of Sale Prospectus and
the Prospectus under the caption "Risk Factors--Risks Relating to
Patents,
Licenses and Trade Secrets," insofar as such statements summarize
legal matters,
agreements, documents, or proceedings discussed therein, are
accurate and fair
summaries in all material respects of such legal matters,
agreements, documents
or proceedings.
(w) The
Company and each subsidiary possess such valid and current
certificates, authorizations or permits issued by the appropriate
state, federal
or foreign regulatory agencies or bodies necessary to conduct their
respective
businesses (other than any the absence of which would not, singly
or in the
aggregate, result in a Material Adverse Change), and neither the
Company nor any
subsidiary has received any notice of proceedings relating to the
revocation or
modification of, or non-compliance with, any such certificate,
authorization or
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permit which, singly or in the aggregate, if the subject of an
unfavorable
decision, ruling or finding, could result in a Material Adverse
Change.
(x) Except as
disclosed in the Time of Sale Prospectus or the
Prospectus, the Company and each of its subsidiaries has good and
marketable
title to all real property and good title to all other properties
and assets
reflected as owned in the financial statements referred to in
Section 1(l)
above, in each case free and clear of any security interests,
mortgages, liens,
encumbrances, equities, claims and other defects, except such as do
not
materially and adversely affect the value of such property and do
not materially
interfere with the use made of such property by the Company or such
subsidiary.
The real property, improvements, equipment and personal property
held under
lease by the Company or any subsidiary are held under valid and
enforceable
leases, with such exceptions as are not material and do not
materially interfere
with the use made of such real property, improvements, equipment or
personal
property by the Company or such subsidiary or with such exceptions
that would
not result in a Material Adverse Change.
(y) The
Company and its consolidated subsidiaries have filed all
necessary federal, state and foreign income and franchise tax
returns or have
properly requested extensions thereof (which extensions have not
expired) and
have paid all taxes required to be paid by any of them and, if due
and payable,
any related or similar assessment, fine or penalty levied against
any of them,
except as are being contested in good faith and that, if resolved
unfavorably to
the Company, would not result in a Material Adverse Change. The
Company has made
adequate charges, accruals and reserves in the applicable financial
statements
referred to in Section 1(l) above in respect of all federal, state
and foreign
income and franchise taxes for all periods as to which the tax
liability of the
Company or any of its subsidiaries has not been finally
determined.
(z) The
Company has not taken and will not take, directly or
indirectly, any action designed to or that would reasonably be
expected to cause
or result in stabilization or manipulation of the price of any
security of the
Company to facilitate the sale or resale of the Shares. The Company
acknowledges
that the Underwriter may engage in passive market making
transactions in the
Common Stock on the Nasdaq Global Market in accordance with
Regulation M under
the Exchange Act.
(aa)
There are no business relationships or related-party
transactions involving the Company or any subsidiary or any other
person
required to be described in the Time of Sale Prospectus or the
Prospectus which
have not been described as required.
(bb)
The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act),
and such controls and procedures are designed (i) to ensure that
information
required to be disclosed by the Company in the reports that it
files or submits
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under the Exchange Act is recorded, processed, summarized and
reported, within
the time periods specified in the Commission's rules and forms and
(ii) to
ensure that information required to be disclosed by the Company in
the reports
that it files or submits under the Exchange Act is accumulated and
communicated
to the Company's management, including its principal executive
officer and
principal financial officer, as appropriate to allow timely
decisions regarding
required disclosure, and such controls and procedures are
effective, in that
they provide reasonable assurance that information required to be
disclosed by
the Company in the reports that the Company files or submits under
the Exchange
Act is recorded, processed, summarized and reported within the time
periods
specified in the Commission's rules and regulations, in all
material respects.
(cc)
Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any
subsidiary, has
made any contribution or other payment to any official of, or
candidate for, any
federal, state or foreign office in violation of any law or of the
character
required to be disclosed in the Time of Sale Prospectus or the
Prospectus.
(dd)
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
statements in conformity with generally accepted accounting
principles as
applied in the United States and to maintain accountability for
assets; (iii)
access to assets is permitted only in accordance with management's
general or
specific authorization; and (iv) the recorded accountability for
assets is
compared with existing assets at reasonable intervals and
appropriate action is
taken with respect to any differences. Except as described in the
Time of Sale
Prospectus and the Prospectus, since the end of the Company's most
recent
audited fiscal year, there has been (i) no material weakness in the
Company's
internal control over financial reporting (whether or not
remediated) and (ii)
no change in the Company's internal control over financial
reporting that has
materially affected, or is reasonably likely to materially affect,
the Company's
internal control over financial reporting.
(ee)
Except as would not, individually or in the aggregate, result
in a Material Adverse Change: (i) neither the Company nor any of
its
subsidiaries is in violation of any federal, state, local or
foreign law or
regulation relating to pollution or protection of human health or
the
environment (including, without limitation, ambient air, surface
water,
groundwater, sediment, land surface or subsurface strata) or
wildlife, including
without limitation, laws and regulations relating to emissions,
discharges,
releases or threatened releases of chemicals, pollutants,
contaminants, wastes,
toxic substances, hazardous substances, petroleum, petroleum
products, toxic
mould or asbestos (collectively, "MATERIALS OF ENVIRONMENTAL
CONCERN"), or
otherwise relating to the manufacture, processing, distribution,
use, treatment,
storage, disposal, transport or handling of, or exposure to,
Materials of
Environment Concern (collectively, "ENVIRONMENTAL
10
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LAWS"), which violation includes, but is not limited to,
noncompliance with any
permits or other governmental authorizations re
