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Exhibit 1.1
DreamWorks Animation SKG,
Inc.
Class A Common Stock, par
value $0.01 per share
Underwriting
Agreement
August 6,
2007
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” and, in
the event that there is only one stockholder listed on Schedule II
hereto, the term “Selling Stockholders” shall mean such
Selling Stockholder) 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 10,186,137 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. 333-145158) 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
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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;
(iv) For the purposes of this
Agreement, the “Applicable Time” is 4:15 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 awards issued under the Company’s 2004 Omnibus
Incentive Compensation Plan (the “2004 Plan”) and
described in the Prospectus or resulting from the deferral of
compensation under the Company’s Special Deferral Election
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
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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 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;
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(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 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, 2006 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”, the
statements set forth in the Prospectus under
“Underwriting”, and the statements set forth under the
heading “Certain Relationships and Related Party
Transactions” in the Company’s Definitive Proxy
Statement filed with the Commission on March 30, 2007 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;
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(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 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, 2004, 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;
7
(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
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 or 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
8
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) 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;
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(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 June 30, 2007, the Company is not aware
of (i) except as disclosed in the Pricing Prospectus and the
Prospectus, any material 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 June 30, 2007, 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, 2006, 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.
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(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 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 has, and immediately prior to the Time of Delivery (as
defined in Section 4(a) hereof), such Selling Stockholder 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
11
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
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
amendme
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