Exhibit 1.1
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COPY
8,264,463 Shares of Common
Stock
TiVo Inc.
Common Stock
UNDERWRITING
AGREEMENT
New York, New York
September 5, 2006
C ITIGROUP G LOBAL M ARKETS I NC
.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
TiVo Inc., a Delaware corporation
(the “ Company ”), proposes to sell 8,264,463
shares (the “ Shares ”) of the Company’s
common stock, par value $.001 per share (the “ Common
Stock ”). This agreement (the “ Agreement
”) is to confirm the agreement concerning the purchase of the
Shares from the Company by Citigroup Global Markets Inc. (the
“Underwriter”).
1. Representations, Warranties
and Agreements of the Company . The Company represents,
warrants and agrees that:
(a) A registration statement on Form
S-3 (No. 333-113719) relating to the Shares (i) has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations (the “
Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder; (ii) has been filed with the Commission under the
Securities Act; and (iii) is effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been delivered by the Company to the Underwriter. As
used in this Agreement:
(i) “ Applicable Time
” means 4:45 p.m. (New York City time) on the date of this
Agreement;
(ii) “ Effective Date
” means any date as of which any part of such registration
statement relating to the Shares became, or is deemed to have
become, effective under the Securities Act in accordance with the
Rules and Regulations;
(iii) “ Issuer Free Writing
Prospectus ” means any “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Shares;
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(iv) “ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Shares included in such registration statement or filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any preliminary prospectus supplement
thereto relating to the Shares;
(v) “ Pricing Disclosure
Package ” means, as of the Applicable Time, the base
prospectus then filed as part of the Registration Statement as
supplemented by the most recent form of preliminary prospectus
supplement, if any, together with each Issuer Free Writing
Prospectus identified in Schedule 1 attached hereto
and the information identified on Schedule 2
hereto;
(vi) “ Prospectus
” means the final prospectus relating to the Shares,
including any prospectus supplement thereto relating to the Shares,
as filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations; and
(vii) “ Registration
Statement ” means, collectively, the various parts of
such registration statement, each as amended as of the Effective
Date for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration
statement.
Any reference to the base prospectus
filed as part of the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act. Any reference to the “
most recent Preliminary Prospectus ” shall be deemed
to refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) prior to or
on the date hereof (including any documents incorporated by
reference therein prior to or on the date hereof). Any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to include any annual
report of the Company on Form 10-K filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Date that is incorporated by reference in the
Registration Statement. Neither the Commission nor its staff has
issued any order preventing or suspending the use of any
Preliminary Prospectus, the Pricing Disclosure Package or the
Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has
been instituted or threatened by the Commission or its staff.
Neither the Commission nor its staff has notified the Company of
any objection to the use of the form of the Registration
Statement.
(b) The Registration Statement
conformed in all material respects on the Effective Date and on the
date hereof, and will conform in all material respects on the
Delivery Date (as defined in Section 4), and any amendment to
the Registration
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Statement filed after the date
hereof will conform in all material respects when filed, to the
requirements of the Securities Act and the Rules and Regulations.
The Preliminary Prospectus conformed when filed with the Commission
and as of the date hereof, and the Prospectus will conform, in all
material respects when filed with the Commission pursuant to Rule
424(b) and on the Delivery Date to the requirements of the
Securities Act and the Rules and Regulations. The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated
will conform, when filed with the Commission, in all material
respects to the requirements of the Exchange Act or the Securities
Act, as applicable, and the rules and regulations of the Commission
thereunder. The Company has been, since the time of initial filing
of the Registration Statement and continues to be, eligible to use
Form S-3 for the offering of the Shares.
(c) The Registration Statement did
not, as of the Effective Date or on the date hereof and will not,
as of the Delivery Date, 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 that no representation or warranty is made as to
information contained in or omitted from the Registration Statement
in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for
inclusion therein, which information is specified, for the
avoidance of doubt, in Section 8(e).
(d) The Prospectus will not, as of
its date and on the Delivery Date, 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 that no representation or warranty is
made as to information contained in or omitted from the Prospectus
in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for
inclusion therein, which information is specified, for the
avoidance of doubt, in Section 8(e). The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, 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 light of the circumstances under
which they were made, not misleading.
(e) The Pricing Disclosure Package
did not, as of the Applicable Time (and each other time of sale, if
any) and as of the date hereof and will not on the Delivery Date,
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, except that the price of the
Shares and the pricing disclosures set forth on
Schedule 2 hereto will be included in the
Prospectus; provided that no representation or warranty is
made as to information contained in or omitted from the Pricing
Disclosure Package in reliance upon and in conformity with written
information furnished to the Company by the Underwriter
specifically for inclusion therein, which information is specified,
for the avoidance of doubt, in Section 8(e).
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(f) Each Issuer Free Writing
Prospectus, when considered together with the Pricing Disclosure
Package as of the Applicable Time and as of the date hereof, did
not and will not on the Delivery Date, 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, except that the price of the Shares and the pricing
disclosures set forth on Schedule 2 hereto will be
included in the Prospectus; provided that no representation
or warranty is made as to information contained in or omitted from
any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for inclusion therein, which information
is specified, for the avoidance of doubt, in
Section 8(e).
(g) Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and
Regulations on the date of first use and as of the Applicable Time,
and the Company has complied with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the
Rules and Regulations. The Company has not made any offer relating
to the Shares that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Underwriter,
which shall not be unreasonably withheld. The Company has retained
in accordance with the Rules and Regulations all Issuer Free
Writing Prospectuses that were not required to be filed pursuant to
the Rules and Regulations.
(h) The Company has been duly
incorporated and is a validly existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Pricing Disclosure Package and the Prospectus; and
the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. For purposes of this
Agreement, the term “ Material Adverse Effect ”
shall mean a material adverse effect on the condition (financial or
other), business, properties, prospects or results of operations of
the Company and its subsidiaries taken as a whole.
(i) No subsidiary of the Company
would be deemed a “significant subsidiary” as defined
in Rule 1–02(w) of Regulation S–X.
(j) The Shares and all other
outstanding shares of capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the Company
are, and, when the Shares have been delivered and paid for in
accordance with this Agreement, such Shares will have been, validly
issued, fully paid and non-assessable, have been issued in
compliance with all applicable securities laws, and will conform to
the description thereof contained in the Pricing Disclosure Package
and the Prospectus; none of the outstanding shares of Common Stock
or other capital stock of the Company or options or warrants to
purchase capital stock of the Company were issued in violation of
any preemptive rights, rights of first refusal or other similar
rights of any stockholders of the Company or of any other person,
and the issuance and sale of the Shares as contemplated by this
Agreement are not subject to any preemptive rights, rights of first
refusal, or other similar rights of any stockholder of the Company
or of any other person.
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(k) There are no contracts,
agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or the
Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with this offering.
(l) Prior to the execution of this
Agreement, the Company has not, directly or indirectly, offered or
sold any Shares by means of any “prospectus” (within
the meaning of the Securities Act) or used any
“prospectus” (within the meaning of the Securities Act)
in connection with the offer or sale of the Shares, in each case
other than any Preliminary Prospectus and any Issuer Free Writing
Prospectus.
(m) The Company has not, directly or
indirectly, prepared, used or referred to any Issuer Free Writing
Prospectus except in compliance with Rules 164 and 433 under the
Securities Act. The Company was not, at the earliest time that the
Company made a bona fide offer (within the meaning of
Rule 164(h)(2) of the Rules and Regulations) of the Shares, is
not on the date hereof, and will not be on the Delivery Date, an
“ineligible issuer” (as defined in Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules
164 and 433 under the Act with respect to the offering of the
Shares contemplated by the Registration Statement. The parties
hereto agree and understand that the content of any and all
“road shows” (as defined in Rule 433 under the Act)
related to the offering of the Shares contemplated hereby is solely
the property of the Company.
(n) Except as identified in the
Pricing Disclosure Package and the Prospectus, 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 owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to any Registration
Statement.
(o) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required for the consummation of the
transactions contemplated by this Agreement or in connection with
the issuance and sale of the Shares by the Company, except such as
have been obtained and made under the Securities Act and such as
may be required under state securities laws.
(p) The execution, delivery and
performance of this Agreement, and the issuance and sale of the
Shares do not and will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body, stock exchange, or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or
any of their properties, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any subsidiary is subject, or the
charter or by-laws of the Company or any such subsidiary, except
for such breaches and violations (other than breaches or violations
of the Company’s charter and
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bylaws) as would not, individually
or in the aggregate, reasonably be expected to result in a Material
Adverse Effect or would not, individually or in the aggregate,
reasonably be expected to materially interfere with the
consummation of the transactions contemplated by this Agreement,
and the Company has full corporate power and authority to
authorize, issue and sell the Shares as contemplated by this
Agreement and to execute, deliver and perform its obligations under
this Agreement without any further approval, authorization, consent
or order of any such entity having jurisdiction over the Company.
The Company is not in breach or violation of any of the terms and
provisions of any statute, any rule, regulation or order of any
governmental agency or body or stock exchange, or order of any
court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound
or to which any of the properties of the Company or any subsidiary
is subject, or the charter or by-laws of the Company or any such
subsidiary, except for such breaches and violations (other than
breaches of the Company’s charter or by-laws) as would not,
individually or in the aggregate reasonably be expected to result
in a Material Adverse Effect.
(q) This Agreement has been duly
authorized, executed and delivered by the Company.
(r) Except as disclosed in the
Pricing Disclosure Package and the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made
or to be made thereof by them; and except as disclosed in the
Pricing Disclosure Package and the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid
and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by
them.
(s) Each of the Company and its
subsidiaries has all necessary licenses, authorizations, consents
and approvals by appropriate governmental agencies and bodies and
has made all necessary filings required under any applicable law,
regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order
to conduct their respective businesses; neither the Company nor any
of its subsidiaries is in violation of, or in default under, or has
received notice of any 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 or
any of its subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(t) No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that would reasonably be
expected to have a Material Adverse Effect.
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(u) The Company has not sold or
issued any securities that would be integrated with the offering of
the Shares contemplated by this Agreement pursuant to the
Securities Act, the Rules and Regulations or the interpretations
thereof by the Commission.
(v) To the best of Company’s
knowledge, the Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, “ intellectual property rights ”)
necessary to conduct the business now operated by them, or
presently employed by them, and except as disclosed in the Pricing
Disclosure Package and the Prospectus have not received any notice
of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect during the 12 months subsequent to the date
hereof.
(w) Except as disclosed in the
Pricing Disclosure Package and the Prospectus, there are no pending
actions, suits or legal proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate reasonably
be expected to have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material
in the context of the sale of the Shares; and to the
Company’s knowledge, no such actions, suits or legal
proceedings are threatened or contemplated.
(x) KPMG LLP, whose report on the
consolidated financial statements of the Company and its
subsidiaries is included or incorporated by reference in the
Registration Statement, any Preliminary Prospectuses, any Issuer
Free Writing Prospectuses and the Prospectus, are independent
registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board.
(y) The financial statements
included or incorporated by reference in the Registration
Statement, any Preliminary Prospectuses, any Issuer Free Writing
Prospectuses, the Pricing Disclosure Package and the Prospectus,
together with the related notes and schedules, present fairly the
consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of
operations, cash flows and changes in stockholders’ equity of
the Company for the periods specified and have been prepared in
compliance with the requirements of the Securities Act and the
Exchange Act and in conformity with U.S. generally accepted
accounting principles applied on a consistent basis during the
periods involved (except as set forth or incorporated by reference
in the Registration Statement, the Pricing Disclosure Package or
the Prospectus). The other financial and statistical data contained
or incorporated by reference in the Registration Statement, any
Preliminary Prospectuses, any Issuer Free Writing Prospectus, the
Pricing Disclosure Package and the Prospectus and the Permitted
Free Writing Prospectuses, if any, are accurately and fairly
presented and prepared on a basis consistent with the financial
statements and books and records of the Company. There are no
financial statements (historical or pro forma) that are
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required to be included or
incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus that are not included or
incorporated by reference as required. The Company and its
subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, and all disclosures contained or
incorporated by reference in the Registration Statement, any
Preliminary Prospectuses, any Issuer Free Writing Prospectus, the
Pricing Disclosure Package and the Prospectus regarding
“non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable.
(z) Subsequent to the respective
dates as of which information is given in the Pricing Disclosure
Package, excluding any amendments or supplements to the foregoing
made after the execution of this Agreement, 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 and its subsidiaries taken as a whole, (ii) any
transaction which is material to the Company and its subsidiaries
taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred
by the Company or any of its subsidiaries, which is material to the
Company and its subsidiaries taken as a whole, (iv) any change
in the capital stock or outstanding indebtedness of the Company or
any of its subsidiaries or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company
or any of its subsidiaries.
(aa) The Company is subject to the
reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and files reports with the
Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system.
(bb) The principal executive
officers (or their equivalents) and principal financial officers
(or their equivalents) of the Company have made all certifications
required by the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act ”) and any related rules and
regulations promulgated by the Commission, and the statements
contained in each such certification are complete and correct. The
Company, and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective
provisions of the Sarbanes-Oxley Act (including the Company’s
obligations arising from Section 404 thereof) and the rules
and regulations of the Commission and the NASDAQ promulgated
thereunder.
(cc) The Company is not and, after
giving effect to the offering and sale of the Shares and the
application of the net proceeds thereof as described in the Pricing
Disclosure Package and the Prospectus, will not be required to
register as an “investment company” under the
Investment Company Act of 1940, as amended.
(dd) The rights associated with the
Shares under the Company’s shareholder rights plan have been
duly authorized, and one such right will be represented by and
trade with each of the Shares issued and sold to the
Underwriter.
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(ee) Neither the Company nor any of
its subsidiaries is engaged in any unfair labor practice. Except
for matters which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect,
(i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against
the Company or any of its subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising
out of or under collective bargaining agreements is pending or, to
the Company’s knowledge, threatened, (B) no strike,
labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or any of
its subsidiaries and (C) no union representation dispute
currently existing concerning the employees of the Company or any
of its subsidiaries, (ii) to the Company’s knowledge, no
union organizing activities are currently taking place concerning
the employees of the Company or any of its subsidiaries and
(iii) there has been no violation of any federal, state, local
or foreign 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 or
the rules and regulations promulgated thereunder concerning the
employees of the Company or any of its subsidiaries.
(ff) The Company and its
subsidiaries and their respective properties, assets and operations
are in compliance with, and the Company and each of its
subsidiaries hold 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, reasonably be expected to 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 material
costs or liabilities to the Company or any subsidiary under, or to
interfere materially with or prevent compliance by the Company or
any subsidiary with, Environmental Laws (as defined below). Except
as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, neither the Company nor
any of its subsidiaries (i) is the subject of any
investigation, (ii) has received any notice or claim,
(iii) is a party to or affected by any pending or, to the
Company’s knowledge, threatened action, suit or proceeding,
(iv) is bound by any judgment, decree or order or (v) has
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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(gg) All tax returns required to be
filed by the Company or any of its subsidiaries have been timely
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 timely paid, other
than those being contested in good faith and for which adequate
reserves have been provided and except for the filing of returns or
the payment of taxes or other assessments which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(hh) The Company and each of its
subsidiaries maintain insurance covering their respective
properties, operations, personnel and businesses as the Company
reasonably deems adequate. 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
subsidiaries and their respective businesses. All such insurance is
fully in force on the date hereof and will be fully in force at the
time of purchase and each additional time of purchase, if any.
Neither the Company nor any of its subsidiaries has reason to
believe that it will not be able to renew any such insurance as and
when such insurance expires.
(ii) Neither the Company nor any of
its subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended (“
FCPA ”), and the rules and regulations thereunder; and
to the knowledge of the Company, no director, officer, agent or
employee has taken any action, directly or indirectly, that would
result in a violation by such persons of the FCPA and the rules and
regulations thereunder. The Company and its subsidiaries have
instituted and maintain policies and procedures designed to ensure
continued compliance therewith.
(jj) The operations of the Company
and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “
Money Laundering Laws ”); and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator or non-governmental authority involving
the Company or any of the subsidiaries with respect to the Money
Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(kk) Neither the Company nor any of
its subsidiaries, nor to the knowledge of the Company, any
director, officer, agent, employee or affiliate, is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“ OFAC
”); to the knowledge of the Company, no director, officer,
agent, employee or affiliate is currently subject to any U.S.
sanctions administered by OFAC; and the Company will not directly
or indirectly use the proceeds of the offering of the Shares
contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
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(ll) To the best of Company’s
knowledge, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or a
