Exhibit 1.1
DreamWorks Animation SKG,
Inc.
Class A Common Stock, par
value $0.01 per share
Underwriting
Agreement
November 15, 2006
Goldman, Sachs &
Co.,
As representatives of the several
Underwriters
named in Schedule I hereto (the
“Representatives”),
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Certain stockholders named in
Schedule II hereto (the “Selling Stockholders”) of
DreamWorks Animation SKG, Inc., a Delaware corporation (the
“Company”), propose, subject to the terms and
conditions stated herein, to sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) an aggregate of
11,580,964 shares (the “Shares”) of Class A Common
Stock, par value $0.01 per share (“Stock”) of the
Company. In the event that there is only one Underwriter listed on
Schedule I hereto, the term “Representatives” shall
mean such Underwriter.
1. (a) The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(i) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form
S-3 (File No. 333-138712) in respect of the Shares has been
filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the
date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission, and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement, is hereinafter called
the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Act is hereinafter called a “Preliminary Prospectus”;
the various parts of such registration statement, including all
exhibits thereto and including any prospectus supplement relating
to the Shares that is filed with the Commission and deemed by
virtue of Rule 430B
to be part of such registration
statement, each as amended at the time such part of the
registration statement became effective, are hereinafter
collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(a)(iv) hereof),
is hereinafter called the “Pricing Prospectus”; the
form of the final prospectus relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
and any “issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Shares is hereinafter called
an “Issuer Free Writing Prospectus”);
(ii) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers
therein to Item 7 of Form S-3 with respect to such Selling
Stockholder;
(iii) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each
part of the Registration Statement and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made
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in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein
or by a Selling Stockholder expressly for use in the preparation of
the answers therein to Item 7 of Form S-3 with respect to such
Selling Stockholder;
(iv) For the purposes of this
Agreement, the “Applicable Time” is 4:25 pm (Eastern
time) on the date of this Agreement. The Pricing Prospectus,
together with the information on Schedule IV(a) hereto, as of the
Applicable Time, did not include 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 each Issuer Free Writing
Prospectus listed on Schedule IV(b) hereto does not conflict
with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the
Pricing Prospectus as of the Applicable Time, did not include 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; provided, however, that this representation and
warranty shall not apply to statements or omissions made in the
Pricing Prospectus, the Prospectus or an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers
therein to Item 7 of Form S-3 with respect to such Selling
Stockholder;
(v) The documents incorporated by
reference in the Pricing Prospectus and the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such
documents contained 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; any
further documents so filed and incorporated by reference in the
Pricing Prospectus or the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3 with
respect to such Selling Stockholder; and no such documents were
filed with the Commission since the Commission’s close of
business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as
set forth on Schedule IV(c) hereto;
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(vi) Since the date of the most
recent audited financial statements included in the Pricing
Prospectus and the Prospectus, the Company and its subsidiaries
have not sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus and the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus and the
Prospectus and other than as set forth in the Pricing Prospectus
and the Prospectus, there has not been any adverse change in the
stockholder’s equity or any change in the long-term debt of
the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position,
stockholder’s equity or results of operations of the Company;
and the Company has not engaged in any business or incurred any
liability or issued any capital stock, otherwise than as set forth
or contemplated in the Pricing Prospectus and the Prospectus or
pursuant to outstanding awards issued under the Company’s
2004 Omnibus Incentive Compensation Plan (the “2004
Plan”) and described in the Prospectus;
(vii) The Company and each of its
subsidiaries has good and marketable title in fee simple to all
real property and good and marketable title to all personal
property described as being owned by them in the Pricing Prospectus
and the Prospectus, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Pricing Prospectus and the Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings to be
held under lease by the Company or its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere with
the use proposed to be made of such property and buildings by the
Company and its subsidiaries;
(viii) 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 power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Prospectus and the
Prospectus, and has been duly qualified as a 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 to the extent that the failure to be so
qualified or in good standing could not reasonably be expected to
result in a material adverse change in, or affect on, the business,
operations, properties or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole (a “Material
Adverse Effect”); and each subsidiary of the Company has been
duly organized and is validly existing and in good standing under
the laws of its jurisdiction of organization, with power and
authority to own its properties and conduct its business as
described in the Pricing Prospectus and the Prospectus, and has
been duly qualified as a foreign company 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 to
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the extent that the failure to be so
qualified or in good standing could not reasonably be expected to
result in a Material Adverse Effect;
(ix) The Company has an authorized
capitalization as set forth in the Pricing Prospectus and the
Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description of the Stock contained in the Pricing
Prospectus and the Prospectus; and all of the membership interests
and issued shares of capital stock of each subsidiary of the
Company, as the case may be, have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for
directors’ qualifying shares, liens existing under the Credit
Agreement, dated October 27, 2004, among the Company and the
lenders party thereto, and as set forth in the Pricing Prospectus
and the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(x) The Company has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder; and all corporate action required to be
taken for the due and proper authorization, execution and delivery
of this Agreement by the Company and the consummation of the
transactions contemplated hereby by the Company have been duly and
validly taken by the Company;
(xi) This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding agreement of the Company;
(xii) The compliance by the Company
with all of the provisions of this Agreement and the consummation
of the transactions herein contemplated will not (A) except as
could not reasonably be expected to have a Material Adverse Effect,
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in the creation of a lien on any of the property or
assets of the Company or any of its subsidiaries, except as
described in the Pricing Prospectus and the Prospectus;
(B) result in any violation of the provisions of the Restated
Certificate of Incorporation or By-laws of the Company, in each
case as amended; or (C) except as could not reasonably be
expected to have a Material Adverse Effect, result in any violation
of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties;
(xiii) No consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required to be
obtained by the Company for the sale of the Shares, except the
registration under the Act of the Shares and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue
5
Sky laws in connection with the
purchase and distribution of the Shares by the
Underwriters;
(xiv) None of the Company or any of
its subsidiaries is (A) in violation of its Certificate of
Incorporation or By-laws or Limited Liability Company Agreement, as
applicable; (B) in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound (except as could not reasonably
be expected to have a Material Adverse Effect) or (C) in
violation of any statute, law, rule, regulation, judgment, order or
decree applicable to the Company of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary
or any of its properties, as applicable (except as could not
reasonably be expected to have a Material Adverse
Effect);
(xv) The consolidated historical
financial statements of the Company included in the Prospectus and
the Registration Statement present fairly, in all material
respects, the consolidated financial position of the Company
(including its predecessors), at the dates indicated and the
consolidated results of its operations and its cash flows for the
periods indicated in conformity with United States generally
accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein); the selected historical financial data set forth under
the caption “Selected Financial Data” in the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2005 present fairly, in all material respects,
the information included therein;
(xvi) The statements set forth in
the Pricing Prospectus and the Prospectus under the caption
“Description of Capital Stock”, insofar as they purport
to constitute a summary of the terms of the Stock, and under the
captions “Material United States Federal Tax Consequences for
Non-United States Stockholders” and
“Underwriting”, and the statements set forth under the
heading “Certain Relationships and Related Party
Transactions” in the Company’s Revised Definitive Proxy
Statement filed with the Commission on April 11, 2006 insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and
fair;
(xvii) Other than as set forth in
the Pricing Prospectus and the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or
of which any property of the Company is the subject which, if
determined adversely to the Company, could reasonably be expected
to, individually or in the aggregate, have a Material Adverse
Effect; and, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xviii) The Company is not an
“investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(xix) (A) (i) At the time of
filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying
with
6
Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act or form of prospectus), and (iii) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Act) made any offer
relating to the Shares in reliance on the exemption of Rule 163
under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at
the earliest time after the filing of the Registration Statement
that the Company or, to the Company’s knowledge, another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Shares, the Company was not an
“ineligible issuer” as defined in Rule 405 under the
Act;
(xx) Neither the Company nor any of
its affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(xxi) Ernst & Young LLP,
who have certified certain financial statements of the Company, are
registered independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder. Except
as described in the Pricing Prospectus and the Prospectus, since
January 1, 2003, Ernst & Young LLP has not engaged in
any “prohibited activities” (as defined in
Section 10A of the Exchange Act) on behalf of the Company or
its predecessor;
(xxii) The Company has filed, or has
caused to be filed, all non-U.S., U.S. federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except as disclosed in the Pricing Prospectus and the
Prospectus) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested
in good faith, except as disclosed in the Pricing Prospectus and
the Prospectus and except as could not reasonably be expected to
have a Material Adverse Effect;
(xxiii) No labor disturbance by the
employees of the Company exists or, to the knowledge of the
Company, is imminent, which could reasonably be expected to have a
Material Adverse Effect;
(xxiv) The Company carries, or is
covered by, insurance in such amounts and covering such risks as is
adequate in accordance with its reasonable business judgment for
the conduct of its business and the value of its properties and as
is customary for companies engaged in similar businesses in similar
industries;
(xxv) There are no material
off-balance sheet arrangements (as defined in Regulation S-K
Item 303(a)(4)(ii)) that could be reasonably be expected to
have a Material Adverse Effect;
(xxvi) The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate U.S. federal, state or
non-U.S. regulatory authorities necessary to conduct
their
7
respective businesses, and none of
the Company or any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit, except as disclosed in the
Pricing Prospectus and the Prospectus, and except, in each case, as
could not reasonably be expected to have a Material Adverse
Effect;
(xxvii) The Company is in compliance
in all material respects with all presently applicable provisions
of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ERISA”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which the Company would have
any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”
or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “Code”), except, in the
case of (i) or (ii), as could not reasonably be expected to
have a Material Adverse Effect; and each “pension plan”
for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification, except as could not reasonably be expected to have a
Material Adverse Effect;
(xxviii) The Company and its
subsidiaries own, possess, license or have other rights to use on
reasonable terms, all patents, trademarks and service marks, trade
names, copyrights, domain names (in each case including all
registrations and applications to register same), 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 or
as proposed in the Pricing Prospectus and the Prospectus to be
conducted by the Company and its subsidiaries, except for any
Intellectual Property, the failure to own, possess, license or have
other rights to use, could not reasonably be expected to have a
Material Adverse Effect. Except as disclosed in the Pricing
Prospectus and the Prospectus and except as could not reasonably be
expected to have a Material Adverse Effect, (A) the Company
and its subsidiaries own, or have rights to use under license, all
such Intellectual Property free and clear in all respects of all
adverse claims, liens or other encumbrances, including without
limitation, claims by current and former employees, freelance
authors or independent contractors; (B) to the knowledge of
the Company, there is no infringement by third parties of any such
Intellectual Property; (C) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by any third party, including by or in any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, challenging the
Company’s or its subsidiaries’ rights in or to any such
Intellectual Property, and the Company is not aware of any
reasonable basis for any such claim; (D) there is no pending
or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by any third party, including by or in any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties,
challenging the validity, scope or enforceability of any such
Intellectual Property, and the Company is not aware of any
reasonable basis for any such claim; (E)
8
there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by any third party, including by or in any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, that the
Company or any subsidiary infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary
rights of any third party, and the Company is not aware of any
reasonable basis for any such claim; (F) all of the copyrights
owned by the Company and its subsidiaries (the
“Copyrights”) have been duly registered in the United
States Copyright Office and/or the appropriate offices of foreign
jurisdictions; the registrations for each of the Copyrights is
enforceable and unexpired, is free of liens, and has not been
abandoned; and (G) no actions are necessary (including filing
of documents or payment of fees) within 90 days after the date
hereof to maintain or preserve the validity or status of any
Intellectual Property;
(xxix) No person or entity other
than the Selling Stockholders with respect to shares being sold by
such Selling Stockholders has the right to require registration of
shares of Stock or other securities of the Company because of the
filing or effectiveness of the Initial Registration Statement or
otherwise, except for persons and entities who have expressly
waived such right or who have been given proper notice and have
failed to exercise such right within the time or times required
under the terms and conditions of such right;
(xxx) Except as described in the
Pricing Prospectus and the Prospectus, there are no outstanding
subscriptions, rights, warrants, calls or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares
of capital stock of or other equity or other ownership interest in
the Company;
(xxxi) The Company maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles; and the Company’s internal control over financial
reporting is effective;
(xxxii) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and
procedures are effective;
(xxxiii) Based on the
Company’s most recent evaluation of its disclosure controls
and procedures in connection with its quarterly report on Form 10-Q
for the quarter ended September 30, 2006, the Company is not
aware of (i) except as disclosed in the Pricing Prospectus and
the Prospectus, any material
9
weaknesses in internal controls or
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal controls;
(xxxiv) Since the date of the
Company’s most recent evaluation of such disclosure controls
and procedures in connection with its quarterly report on Form 10-Q
for the quarter ended September 30, 2006, there have been no
significant changes in internal controls or in other factors that
could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses;
(xxxv) None of the Company or any of
its subsidiaries, nor to the knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf the Company or any of its subsidiaries, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment by or on
behalf of the Company;
(xxxvi) There are no contracts or
other documents that are required to be described in the Pricing
Prospectus and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations, which have not been described in the Pricing
Prospectus and the Prospectus or filed as exhibits to the
Registration Statement;
(xxxvii) There are no relationships
(including without limitation any loans or advances), direct or
indirect, nor has any transaction been entered into since
January 1, 2005, between or among the Company and its
subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand which are required to be described in the Pricing
Prospectus and the Prospectus by the Securities Act or by the Rules
and Regulations which have not been described in the Pricing
Prospectus and the Prospectus; and
(xxxviii) Other than this Agreement,
neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would
give rise to a valid claim against the Company or any of its
subsidiaries or any Underwriter for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Shares.
(b) Each of the Selling
Stockholders, severally and not jointly, represents and warrants
to, and agrees with, each of the Underwriters and the Company
that:
(i) All consents, approvals,
authorizations and orders necessary for the execution and delivery
by such Selling Stockholder of this Agreement and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained; and such Selling Stockholder has
full right, power and authority to enter into this Agreement and
has the full right, power and
10
authority to sell, assign, transfer
and deliver the Shares to be sold by such Selling Stockholder
hereunder;
(ii) The sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement and the consummation of the transactions herein
contemplated will not, in any respect that is material to such
sale, compliance and consummation by such Selling Stockholder,
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any
of the property or assets of such Selling Stockholder is subject,
nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of such Selling
Stockholder if such Selling Stockholder is a corporation, the
Limited Liability Company Agreement of such Selling Stockholder if
such Selling Stockholder is a limited liability company, the
Partnership Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(iii) Such Selling Stockholder
(other than DW Holdco LLC) has, and immediately prior to the Time
of Delivery (as defined in Section 4(a) hereof), such Selling
Stockholder (including DW Holdco LLC) will have good and valid
title to the Shares to be sold by such Selling Stockholder
hereunder, free and clear of all adverse claims within the meaning
of the New York Uniform Commercial Code; and, upon delivery of such
Shares and payment therefor pursuant hereto, the several
Underwriters will acquire a “security entitlement” and
(provided that such Underwriter has no notice of an adverse claim)
no action based on an adverse claim may be asserted against any of
the Underwriters with respect to such security entitlements, each
within the meaning of the New York Uniform Commercial Code, with
respect to the shares purchased by them;
(iv) Such Selling Stockholder has
not taken and will not take, directly or indirectly, any action
which is designed to or which has constituted or which might
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;
(v) To the extent that any
statements or omissions made in the Registration Statement, the
Pricing Prospectus, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder
with respect to such Selling Stockholder expressly for use therein,
such Registration Statement did, and the Pricing Prospectus and the
Prospectus and any further amendments or supplements to the
Registration Statement, when they become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of Item 7 of Form S-3
with respect to such Selling Stockholder and the Registration
Statement, the Pricing Prospectus (together with the information on
Schedule IV(a) hereto) and the Prospectus will not contain any
untrue statement of a material fact or omit to
11
state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; the Underwriters and the Company acknowledge and agree
that, for all purposes of this Agreement, the only information
furnished to the Company by any Selling Stockholder with respect to
such Selling Stockholder expressly for use in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus or any amendment or supplement thereto are the
statements pertaining to the name of the Selling Stockholder and
the number of shares owned and the number of shares proposed to be
sold by such Selling Stockholder.
(vi) In order to document the
Underwriters’ compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the Time of Delivery
(as hereinafter defined) a properly completed and executed United
States Treasu
