Exhibit 1.2
2,947,132 Shares
SUNPOWER
CORPORATION
Class A Common
Stock
UNDERWRITING AGREEMENT
February 2, 2007
L EHMAN B ROTHERS I NC
.
745 Seventh Avenue
New York, NY 10019-6801
Dear Sirs:
1.
Introductory . SunPower Corporation, a Delaware
corporation (“ Company ”), subject to the terms
and conditions stated herein and pursuant to the Share Lending
Agreement (the “ Share Lending Agreement ”)
dated February 2, 2007, between the Company and Lehman
Brothers International (Europe) Limited (“ LBIE
”) through Lehman Brothers Inc., as agent (in such capacity,
the “ Agent ”), an affiliate of the underwriter
named in Schedule A hereto (the “ Underwriter
”), proposes to issue and loan to LBIE as a share loan (the
“ Loan ”) pursuant to and upon the terms set
forth in the Share Lending Agreement, up to 2,947,132 shares of
class A common stock, $0.001 par value (the “ Common
Stock ”) of the Company (and shares to be issued and
loaned by the Company being hereinafter called the “
Offered Securities ”).
Concurrently with the issuance of
the Offered Securities, the Company is offering in an offering
registered under the Securities Act by means of a prospectus
supplement $175,000,000 aggregate principal amount of the
Company’s Convertible Senior Debentures due 2027 (the “
Debentures ”). Lehman Brothers Inc., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Cowen and
Company, LLC, First Albany Capital Inc. and ThinkEquity Partners
LLC are acting as the underwriters (collectively the “
Debenture Underwriters ”) in the concurrent offering
of Debentures. The Company has granted the Debenture Underwriters
an option to purchase up to an additional $25,000,000 aggregate
principal amount of Debentures. The Company and the Debenture
Underwriters will be entering into an underwriting agreement with
respect to such offering. The Company is currently a subsidiary (as
defined in Rule 405 of the Act (as defined herein)) of Cypress
Semiconductor Corporation, a Delaware corporation (“
Parent ”). The Company hereby agrees with the
Underwriter as follows:
2.
Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter
that:
(a) The
Company has filed with the Commission a registration statement on
Form S-3 (No. 333-140272), including a related prospectus or
prospectuses, covering the registration of the Offered Securities
under the Act, which has become effective. “ Registration
Statement ” at any particular time means such
registration statement in the form then filed with the Commission,
including any amendment thereto, any document incorporated by
reference therein and all 430B Information and all 430C Information
with respect to such registration statement, that in any case has
not been superseded or modified. “ Registration
Statement ” without reference to a time means the
Registration Statement as of the Effective Time.
For purposes of this
Agreement:
“ 430B Information
” means information included in a prospectus and deemed to be
a part of the Registration Statement pursuant to , and at the time
specified in, Rule 430B(e) or Rule 430B(f),
respectively.
“ 430C Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule
430C.
“ Act ” means the
Securities Act of 1933, as amended.
“ Applicable Time
” means 8:30 a.m. (New York City time) on February 2,
2007;
“ Closing Date ”
has the meaning defined in Section 3 hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Effective Time
” of the Registration Statement relating to the Offered
Securities means the time of the first contract of sale for the
Offered Securities.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Final Prospectus
” means the Statutory Prospectus that discloses the public
offering price, other 430B Information and other final terms of the
Offered Securities and otherwise satisfies Section 10(a) of
the Act.
“ General Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule B to
this Agreement.
“ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the Offered
Securities in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in
the Company’s records pursuant to Rule 433(g).
“ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“ Securities Laws
” means, collectively, the Sarbanes-Oxley Act of 2002
(“ Sarbanes-Oxley ”), the Act, the Exchange Act,
the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of
“issuers” (as defined in Sarbanes-Oxley) promulgated or
approved by the Public Company Accounting Oversight Board and, as
applicable to the Company at a specific time, the rules of the New
York Stock Exchange and the NASDAQ Stock Market (“
Exchange Rules ”).
“ Statutory Prospectus
” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the
Registration Statement immediately prior to that time, including
all 430B Information and all 430C Information with respect to the
Registration Statement and all information incorporated by
reference into such prospectus. For purposes of the foregoing
definition, 430B Information shall be considered to be included in
the Statutory Prospectus only as of the actual time that form of
prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) and not
retroactively.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) (A) At
the time the Registration Statement initially became effective,
(B) at the time of each amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether by
post-effective amendment, incorporated report or form of
prospectus), (C) at the Effective Time relating to the Offered
Securities and (D) on the Closing Date, the
Registration
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Statement conformed and will conform
in all respects to the requirements of the Act and the Rules and
Regulations and did not and will not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and (ii) (A) on its date, (B) at the time of
filing the Final Prospectus pursuant to Rule 424(b) and
(C) on the Closing Date, the Final Prospectus will conform in
all respects to the requirements of the Act and the Rules and
Regulations, and will not include any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from any such document
based upon written information furnished to the Company by the
Underwriter, if any, specifically for use therein, it being
understood and agreed that the only such information is that
described as such in Section 8(b) hereof.
(c) (i) (x) At
the time of initial filing of the Registration Statement,
(y) at the time of the most recent amendment thereto for the
purposes of complying with 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 (z) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c)) made any offer relating
to the Offered Securities in reliance on the exemption of
Rule 163, the Company was a “well known seasoned
issuer” as defined in Rule 405, and was not an
“ineligible issuer” as defined in
Rule 405.
(ii) The
Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, that initially
became effective within three years of the Closing Date (as defined
in Section 3) If immediately prior to the Renewal Deadline (as
hereinafter defined), any of the Offered Securities remain unsold
by the Underwriter, the Company will prior to the Renewal Deadline
file, if it has not already done so and is eligible to do so, a new
automatic shelf registration statement relating to the Offered
Securities, in a form satisfactory to the Underwriter. If the
Company is no longer eligible to file an automatic shelf
registration statement, the Company will prior to the Renewal
Deadline, if it has not already done so, file a new shelf
registration statement relating to the Offered Securities, in a
form satisfactory to the Underwriter, and will use its reasonable
best efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company
will take all other action necessary or appropriate to permit the
public offering and sale of the Offered Securities to continue as
contemplated in the expired registration statement relating to the
Offered Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or
such new shelf registration statement, as the case may be. “
Renewal Deadline ” means the third anniversary of the
initial effective time of the Registration Statement.
(d) The
Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) objecting to use of the automatic shelf
registration statement form. If at any time when Offered Securities
remain unsold by the Underwriter the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise
ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the
Underwriter, (ii) promptly file a new registration statement
or post-effective amendment on the proper form relating to the
Offered Securities, in a form satisfactory to the Underwriter,
(iii) use its reasonable best efforts to cause such
registration statement or post-effective amendment to be declared
effective as soon as practicable, and (iv) promptly notify the
Underwriter of such effectiveness. The Company will take all other
action necessary or appropriate to permit the public offering and
sale of the Offered Securities to continue as contemplated in the
registration statement that was the subject of the
Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement
shall include such new registration statement or post-effective
amendment, as the case may be.
(e) The
Company has paid or shall pay the required Commission filing fees
relating to the Offered Securities within the time required by
Rule 456(b)(1) without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and
457(r).
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(f) As of the
Applicable Time and of the Closing Date (as defined below), neither
(A) the General Use Issuer Free Writing Prospectus(es) issued
at or prior to the Applicable Time, the last Statutory Prospectus
filed before the Applicable Time and the information set forth in
Schedule B to this Agreement, all considered together
(collectively, the “ General Disclosure Package
”), nor (B) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted 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. The preceding sentence
does not apply to statements in or omissions from any prospectus
included in the Registration Statement or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists of
the information described as such in Section 8(b)
hereof.
(g) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Offered Securities or until any earlier date that the
Company notified or notifies the Underwriter as described in the
next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement. If at any
time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading,
(i) the Company has promptly notified or will promptly notify
the Underwriter and (ii) the Company has promptly amended or
supplemented or will promptly amend or supplement such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use
therein, it being understood and agreed that the only such
information furnished by the Underwriter consists of the
information described as such in Section 8(b)
hereof.
(h) The
documents incorporated by reference in any Statutory Prospectus or
the Final Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(i) The
Company is duly incorporated and is an existing 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 General Disclosure Package; 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 for any jurisdiction where the
failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole (“
Material Adverse Effect ”).
(j) Each
subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership
4
or lease of property or the conduct
of its business requires such qualification; except for any such
jurisdiction where the failure to be so qualified would not have a
Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and non-assessable; and the
capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
(k) The
Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized and; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and
nonassessable and will conform in all material respects to the
description thereof contained in the Prospectus; and the
securityholders of the Company have no preemptive rights with
respect to the Securities; and except as disclosed in the General
Disclosure Package, there are no outstanding options, warrants or
other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, shares of the Company’s capital stock or any
such options, warrants, rights, convertible securities or
obligations.
(l) The Share
Lending Agreement has been duly authorized by the Company and
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(m) Except as
disclosed in the General Disclosure Package, 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.
(n) Except as
disclosed in the General Disclosure Package, 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 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 a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(o) The
Company is subject to and in compliance in all material respects
with the reporting requirements of Section 13 of the Exchange
Act. The Common Stock is registered pursuant to Section 12(b)
of the Exchange Act and is listed on The Nasdaq Global Market, and
the Company has taken no action designed to, or reasonably likely
to have the effect of, terminating the registration of the Common
Stock under the Exchange Act or delisting the Common Stock from The
Nasdaq Global Market, nor has the Company received any notification
that the Commission or the National Association of Securities
Dealers, Inc. is contemplating terminating such registration or
listing. No consent, approval, authorization or order of, or
filing, notification or registration with, The Nasdaq Global Market
is required for the listing and trading of the Offered Securities
on The Nasdaq Global Market.
(p) No
consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required to be obtained
or made by the Company for the consummation of the transactions
contemplated by this Agreement or the Share Lending Agreement in
connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and such as may be required under state securities
laws.
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(q) The
execution, delivery and performance of this Agreement and the Share
Lending Agreement, and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under (a) any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties, (b) 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 such subsidiary is subject, or (c) the
charter or by-laws of the Company or any such subsidiary, except,
in the cases of clauses (a) and (b) above, as would not
have a Material Adverse Effect, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(r) This
Agreement has been duly authorized, executed and delivered by the
Company.
(s) Except as
disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them and material to
the Company’s business, 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 General Disclosure
Package, the Company and its subsidiaries hold any leased real or
personal property material to the Company’s business under
valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by
them.
(t) The
Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, except as the General Disclosure Package
discloses may occur.
(u) No labor
dispute with the employees of the Company or any subsidiary exists
or, to the knowledge of the Company, is imminent that is reasonably
likely to have a Material Adverse Effect.
(v) Except as
disclosed in the General Disclosure Package, 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 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 have a
Material Adverse Effect.
(w) Except as
disclosed in the General Disclosure Package, neither the Company
nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, “
Environmental Laws ”), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim or threatened action relating to any environmental laws,
which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect or
otherwise require disclosure in the General Disclosure Package; and
the Company is not aware of any pending or threatened investigation
which might lead to
6
such a claim. In the ordinary course
of business, the Company (1) conducts a periodic review of the
effect of Environmental Laws on its business, operations and
properties, and the Company has identified and evaluated associated
costs and liabilities, and any capital or operating expenditures,
required for cleanup or closure of properties under, or compliance
with, Environmental Laws or any permit, license or approval, any
related constraints on operating activities, and any potential
liabilities to third parties; and (2) has conducted
environmental investigations of, and has reviewed information
regarding, its business, properties and operations, and those of
other properties within the vicinity of its businesses, properties
and operations; on the basis of such review and investigations, the
Company has reasonably concluded that, except as disclosed in the
General Disclosure Package, any costs and liabilities associated
with such matters would not have a Material Adverse Effect or
otherwise require disclosure in the General Disclosure
Package.
(x) Except as
disclosed in the General Disclosure Package, there are no pending
actions, suits, charges (by any governmental entity),
investigations, requests for information (by any governmental
entity) or 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 have a Material Adverse
Effect or otherwise require disclosure in the General Disclosure
Package or the Final Prospectus, 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 Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company’s knowledge,
contemplated.
(y) The
financial statements included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Final Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
(“ U.S. GAAP ”) applied on a consistent basis
and the assumptions used in preparing the pro forma and as adjusted
financial information included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Final Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts. The pro forma
financial statements included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Final Prospectus comply as to form in all material respects with
the applicable requirements of Regulation S-X under the
Act.
(z) Except as
disclosed in the General Disclosure Package, since the date of the
Company’s latest audited financial statements included or
incorporated by reference in the General Disclosure Package there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole, and, except
as disclosed in or contemplated by the General Disclosure Package,
there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital
stock.
(aa) All
material Tax returns required to be filed by the Company or any of
its subsidiaries have been filed in all jurisdictions where such
returns are required to be filed, which returns are true, complete,
and correct in all material respects and all Taxes shown on such
returns have been paid. All material Taxes due or claimed to be due
from the Company and each of its subsidiaries have been paid, other
than those (1) currently payable without penalty or interest
or (2) being contested in good faith and by appropriate
proceedings and for which, in the case of both clauses (1) and
(2), adequate reserves have been established on the books and
records of the Company and its subsidiaries in accordance with U.S.
GAAP. No material deficiency or adjustment for any Taxes has been
threatened, proposed, asserted or assessed against the
Company
7
or any of its subsidiaries. To the
knowledge of the Company, the reserves on the books and records of
the Company and its subsidiaries in respect of any Tax liability
for any taxable period not finally determined are adequate to meet
any assessments of Tax for any such period. For purposes of this
Agreement, the term “ Tax ” and “
Taxes ” shall mean all Federal, state, local and
foreign taxes, and other assessments of a similar nature (whether
imposed directly or through withholding), including any interest,
additions to tax, or penalties applicable thereto.
(bb) The
Company is not and, after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds of the
Loan as described in the Share Lending Agreement and the General
Disclosure Package, will not be an “investment company”
as defined in the Investment Company Act of 1940.
(cc) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or 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, and the rules and regulations thereunder (the “
FCPA ”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, its subsidiaries and, to
the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance
therewith and neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries or
has otherwise made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(dd) The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
record keeping 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
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(ee) As of
the date of this Agreement, there is and has been no failure on the
part of the Company and any of the Company’s directors or
officers, in their capacities as such, to comply with the
provisions of the Sarbanes-Oxley Act of
