11,596,981 Shares
Common Stock, par value $0.01 per Share
Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036
D-R
Interholding, LLC, a Delaware limited liability company (the
“ Selling Stockholder ”), proposes to sell to
Morgan Stanley & Co. Incorporated ( the “
Underwriter ”), 11,596,981 shares (the “
Shares ”) of the common stock, par value $0.01 per
share (the “ Common Stock ”), of Dresser-Rand
Group Inc., a corporation organized under the laws of Delaware (the
“ Company ”).
The
Company has prepared and filed with the Securities and Exchange
Commission (the “ Commission ”) an automatic
registration statement on Form S-3 (File No. 333-138520),
which contains a base prospectus (the “ Base
Prospectus ”), to be used in connection with the public
offering and sale of the Shares. Such automatic registration
statement, as amended, to the date of this agreement, including the
financial statements, exhibits and schedules thereto and including
any required information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430A or 430B under the
Securities Act, as amended, and the rules and regulations
promulgated thereunder (the “ Securities Act ”)
or the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder (collectively, the “
Exchange Act ”), is called the “ Registration
Statement .” The term “ Prospectus ”
shall mean, collectively the final prospectus supplement relating
to the Shares that is first filed pursuant to Rule 424(b) after the
date and time that this Agreement is executed and delivered by the
parties hereto and the Base Prospectus. As used herein, the terms
“Registration Statement,” “Time of Sale
Prospectus” and “Prospectus” shall include the
documents (if any) incorporated by reference therein.
For
purposes of this Agreement, “ free writing prospectus
” has the meaning set forth in Rule 405 under the Securities
Act; “ Time of Sale Prospectus ” means the Base
Prospectus together with the free writing prospectuses, if any, or
any other pricing information identified or included in
Schedule I hereto. The terms “ supplement
,” “ amendment ’” and “
amend ” as used herein with respect to the Time of
Sale Prospectus or any free writing prospectus shall include all
documents subsequently filed by the Company with the Commission
pursuant to the Exchange Act, that are incorporated by reference
therein. “ Applicable Time ” means 5:45 p.m.
(New York City time) on March 8, 2007.
1.
Representations and Warranties of the Company . The Company
represents and warrants to the Underwriter as set forth below in
this Section 1:
(a) The
Registration Statement became effective upon filing, no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission. The Registration Statement is an
automatic shelf registration statement as defined in Rule 405
under the Securities Act and the Company is a “well known
seasoned issuer” (as defined in Rule 405 Under the
Securities Act) eligible to use the Registration Statement as an
automatic shelf registration statement. The Company has not
received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (iv) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with
the offering and at the Closing Date (as defined in Section 5
of this Agreement), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(v) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representation or
warranty as to the information contained in or omitted from the
Registration Statement, the Time of Sale Prospectus or the
Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of the Underwriter specifically for
inclusion therein.
(c) The Company is
not an “ineligible issuer” in connection with the
offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules
and
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regulations of
the Commission thereunder. Except for the free writing prospectuses
or other pricing information, if any, identified or included in
Schedule I hereto, and broadly available road shows, if any,
furnished to you before first use, the Company has not prepared,
used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus or
Rule 134 Notice.
(d) The Company is
not, and after giving effect to the offering and sale of the Shares
will not be, an “investment company” as defined in the
Investment Company Act, without taking account of any exemption
arising out of the number of holders of the Company’s
securities.
(e) The Company
has not paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company
(except as contemplated in this Agreement).
(f) Neither the
Company nor any of its subsidiaries has taken or will take,
directly or indirectly, any action designed to or that has
constituted or that would reasonably be expected to cause or
result, under the Exchange Act or otherwise, in unlawful
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(g) The Company
and each of its “significant subsidiaries” (as defined
in Regulation S-X under the Securities Act) has been duly
incorporated or formed and is validly existing as an entity in good
standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate or other organizational
power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Time of Sale Prospectus and the Prospectus, and is duly qualified
to do business as a foreign corporation or other entity and is in
good standing under the laws of each jurisdiction where the
ownership or leasing of its properties or the conduct of its
business requires such qualification except where the failure to be
so incorporated or formed or qualified, have such power or
authority or be in good standing would not reasonably be expected
to 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 (a “
Material Adverse Effect ”). The Company’s
“significant subsidiaries” are listed on Schedule II
hereto.
(h) All the
outstanding shares of capital stock of each significant subsidiary
of the Company have been duly authorized and validly issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Time of Sale Prospectus and the Prospectus, all outstanding
shares of capital stock of each significant subsidiary of the
Company are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any security interest, claim,
lien or encumbrance (other than liens, encumbrances and
restrictions imposed in favor of the lenders under the
Company’s existing senior secured credit agreement described
in the Time of Sale Prospectus and the Prospectus or permitted
thereunder).
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(i) (a) This
Agreement has been duly authorized, executed and delivered by the
Company; and (b) the shares of Common Stock (including the
Shares to be sold by the Selling Stockholder) have been duly
authorized, are validly issued, fully paid and non-assessable, and
are not subject to any preemptive or similar rights.
(j) The authorized
capital stock of the Company conforms as to legal matters to the
description thereof contained in the Time of Sale Prospectus and
the Prospectus.
(k) No consent,
approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the
execution, delivery and performance of this Agreement, except such
(i) as may be required under the blue sky laws of any
jurisdiction in which the Shares are offered and sold or
(ii) as shall have been obtained or made prior to the Closing
Date (as defined in Section 5 of this agreement).
(l) None of the
execution and delivery of this Agreement by the Company, the sale
of the Shares or the consummation of any of the transactions herein
contemplated will conflict with or result in a breach or violation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to
(i) the charter or bylaws or other organizational document of
the Company or any of its significant subsidiaries; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its significant subsidiaries is a party or bound or to which its or
their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
significant subsidiaries or any of its or their properties other
than in the case of clauses (ii) and (iii), such breaches,
violations, liens, charges or encumbrances that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(m) The
consolidated historical financial statements of the Company and the
combined historical financial statements of Dresser-Rand Company
included in the Time of Sale Prospectus, the Prospectus and the
Registration Statement present fairly the financial condition,
results of operations and cash flows of the Company and
Dresser-Rand Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of
the Securities Act and have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis throughout the periods involved
(except as otherwise noted therein).
(n) 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 or its or their property is pending or, to the
best knowledge of the Company, threatened that (i) would reasonably
be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) would reasonably be expected to
have a Material Adverse Effect, except as set forth in or
contemplated in the Time of Sale Prospectus and the Prospectus
(exclusive of any amendment or supplement thereto).
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(o) Each of the
Company and its subsidiaries owns or leases all such properties as
are necessary to the conduct of its respective operations as
presently conducted, except as would not reasonably be expected to
have a Material Adverse Effect.
(p) Neither the
Company nor any of its subsidiaries is in violation or default of
(i) any provision of its charter or bylaws or any equivalent
organizational document; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property
is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries 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, other than in the cases of clauses
(ii) and (iii), such violations and defaults that would not
reasonably be expected to have a Material Adverse
Effect.
(q)
PricewaterhouseCoopers LLP, who have audited certain financial
statements of each of the Company and Dresser-Rand Company and
delivered their reports with respect to the audited consolidated
financial statements and audited combined financial statements
included in the Time of Sale Prospectus and the Prospectus, is an
independent registered public accounting firm with respect to the
Company and Dresser-Rand Company within the meaning of the
Securities Act.
(r) The Company
has 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 in any case in which the failure to file would not
reasonably be expected to have a Material Adverse Effect and except
as set forth in or contemplated in the Time of Sale Prospectus and
the Prospectus (exclusive of any amendment or supplement thereto))
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 or as would not reasonably be expected to have a
Material Adverse Effect and except as set forth in or contemplated
in the Time of Sale Prospectus and the Prospectus (exclusive of any
amendment or supplement thereto).
(s) No labor
problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the Company’s knowledge, is
threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by its employees or any of
its or its subsidiaries’ employees, except as would not
reasonably be expected to have a Material Adverse Effect and except
as set forth in or contemplated in the Time of Sale Prospectus and
the Prospectus (exclusive of any amendment or supplement
thereto).
(t) The Company
and each of its subsidiaries are insured against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged or as required by law, except
as would not reasonably be expected to have a Material Adverse
Effect.
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(u) No subsidiary
of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company or any other subsidiary,
from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company or any other subsidiary
any loans or advances to such subsidiary from the Company or any
other subsidiary or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
in the Time of Sale Prospectus and the Prospectus (exclusive of any
amendment or supplement thereto) and except for any prohibitions
imposed under the Company’s existing senior secured credit
agreement and the indenture governing the Company’s
outstanding 7 3/8% senior subordinated notes due 2014.
(v) 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, except where the failure to possess such
licenses, certificates, permits and other authorizations would not
reasonably be expected to have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as set forth
in or contemplated in the Time of Sale Prospectus and the
Prospectus (exclusive of any amendment or supplement
thereto).
(w) Except as
described in the Time of Sale Prospectus and the Prospectus
(exclusive of any amendment or supplement thereto), the Company and
each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(x) Except as set
forth in or contemplated in the Time of Sale Prospectus and the
Prospectus (exclusive of any amendment or supplement thereto), the
Company and its subsidiaries are (i) in compliance with any
and all applicable non-U.S., U.S. federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”); (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses; (iii) have not received notice of any actual or
potential liability under any Environmental Law; and (iv) have
not been named as a “potentially responsible party”
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, except where such non-compliance
with Environmental Laws, failure to receive required permits,
licenses or other approvals, liability or naming as a
“potentially responsible party” would not,
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individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(y) Each pension
plan and welfare plan established or maintained by the Company
and/or one or more of its subsidiaries is in compliance with the
currently applicable provisions of ERISA and the Code, except where
noncompliance would not reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries
has incurred or could reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any
liability under Section 4062, 4063 or 4064 of ERISA or any
other liability under Title IV of ERISA that would reasonably be
expected to have a Material Adverse Effect.
(z) No
forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) or
presentation of market-related or statistical data contained in the
Time of Sale Prospectus, the Prospectus or Registration Statement
has been made or reaffirmed without a reasonable basis or has been
disclosed in other than good faith.
(aa) No holders of
the Company’s Common Stock, other than the Selling
Stockholder, have rights to include such Common Stock with the
Shares in the Registration Statement.
(bb) Except as
described in the Time of Sale Prospectus and the Prospectus
(exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement), the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period
preceding the date hereof, including any sales pursuant to
Rule 144A under, or Regulation D or Regulation S of,
the Securities Act, other than shares issued pursuant to stock
incentive plans, employee benefit plans, qualified stock option
plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(cc) Other than
the failure to appoint a second independent member (as such term is
defined in Section 10A(m)(3) of the Exchange Act) to the audit
committee of its board of directors by November 4, 2005, which
failure has since been remedied, 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 any
provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “
Sarbanes Oxley Act ”), including Section 402
related to loans and Sections 302 and 906 related to
certifications, solely to the extent that the Sarbanes Oxley Act
has been applicable to the Company.
(dd) The Company
and its subsidiaries own or possess, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice of
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infringement of
or conflict with asserted rights of others with respect to any of
the foregoing which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
reasonably be expected to have a Material Adverse
Effect.
(ee) 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 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. “ FCPA ” means Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations
thereunder.
(ff) 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
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened, except, in each case, as would not
reasonably be expected to have a Material Adverse
Effect.
(gg) Except as
specifically described in the Time of Sale Prospectus and the
Prospectus (exclusive of any amendment or supplement thereto),
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 currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“ OFAC
”); and the Company will not directly or indirectly use the
proceeds of the offering, 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.
Any
certificate signed by any officer of the Company and delivered to
the Underwriter or counsel for the Underwriter in connection with
the sale of the Shares by the
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Selling
Stockholder shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to the
Underwriter.
2.
Representations and Warranties of the Selling Stockholder .
The Selling Stockholder represents and warrants to and agrees with
the Underwriter that:
(a) This Agreement
has been duly authorized, executed and delivered by or on behalf of
the Selling Stockholder.
(b) The execution
and delivery by the Selling Stockholder of, and the performance by
the Selling Stockholder of its obligations under, this Agreement,
will not contravene (i) any provision of applicable law,
(ii) the certificate of formation or operating agreement of
the Selling Stockholder, (iii) any agreement or other
instrument binding upon the Selling Stockholder or (iv) any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Selling Stockholder, except in the
case of clauses (i) and (iii) as would not individually
or in the aggregate have a material adverse effect on the ability
of such Selling Stockholder to consummate the transactions
contemplated by this Agreement, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Selling
Stockholder of its obligations under this Agreement, except for the
registration of the Shares under the Securities Act and such as may
be required to be obtained or made under state securities or
“blue sky” laws or by the rules and regulations of the
NASD in connection with the purchase and sale of the Shares by the
Underwriter.
(c) The Selling
Stockholder has, and on the Closing Date will have, valid title to,
or a valid “security entitlement” within the meaning of
Section 8-501 of the New York Uniform Commercial Code in
respect of, the Shares to be sold by the Selling Stockholder free
and clear of all security interests, claims, liens, equities or
other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares to be sold
by the Selling Stockholder or a security entitlement in respect of
the Shares.
(d) Upon payment
for the Shares to be sold by the Selling Stockholder pursuant to
this Agreement, delivery of the Shares, as directed by the
Underwriter, to Cede & Co. (“ Cede ”) or
such other nominee as may be designated by The Depository Trust
Company (“ DTC ”), registration of the Shares in
the name of Cede or such other nominee and the crediting of the
Shares on the books of DTC to securities accounts of the
Underwriter (assuming that neither DTC nor the Underwriter has
notice of any adverse claim (within the meaning of
Section 8-105 of the New York Uniform Commercial Code (the
“ UCC ”)) to the Shares), (A) DTC shall be
a “protected purchaser” of the Shares within the
meaning of Section 8-303 of the UCC, (B) under
Section 8-501 of the UCC, the Underwriter will acquire a valid
security entitlement in respect of the Shares and (C) no
action based on any “adverse claim”, within the meaning
of Section 8-102 of the UCC, to the Shares may be asserted
against the Underwriter with respect to such security entitlement;
for purposes of this representation, the Selling Stockholder may
assume that when such payment, delivery and crediting occur, (x)
the Shares will have been
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registered in
the name of Cede or another nominee designated by DTC, in each case
on the Company’s share registry in accordance with its
certificate of incorporation, bylaws and applicable law,
(y) DTC will be registered as a “clearing
corporation” within the meaning of Section 8-102 of the
UCC and (z) appropriate entries to the accounts of the
Underwriter on the records of DTC will have been made pursuant to
the UCC.
(e) The Selling
Stockholder is not prompted to sell its Shares pursuant to this
Agreement by any material information concerning the Company or its
subsidiaries that has not been publicly disclosed.
(f) (i) Each
part of the Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Time of
Sale Prospectus does not, and at the time of each sale of the
Shares in connection with the offering and at the Closing Date (as
defined in Section 5 of this agreement), the Time of Sale
Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were
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