R.H. Donnelley
Corporation
Lehman Brothers
Inc.
745 Seventh Avenue, 3rd Floor
New York, New York 10019
Certain selling
shareholders of R.H. Donnelley Corporation, a Delaware corporation
(the “ Company ”), named in
Schedule 1 hereto (the “ Selling
Stockholders ”) propose to sell to Lehman Brothers Inc.
(the “ Underwriter ”) 18,848,719 shares (the
“Stock” ) of the Common Stock, par value $1 per
share (the “ Common Stock ”) of the Company.
This is to confirm the agreement concerning the purchase of the
Stock from the Selling Stockholders by the Underwriter.
1.
Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees as follows:
(a) An
automatic shelf registration statement on Form S-3 with respect to
the Stock has (i) been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the
“ Securities Act ”), and the rules and
regulations (the “ Rules and Regulations ”) of
the Securities and Exchange Commission (the “
Commission ”) thereunder, (ii) been filed with
the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration
statement and any amendment thereto have been delivered by the
Company to you. As used in this Agreement:
(i) “
Applicable Time ” means 7:15 a.m. (New York City time)
on the date of this Agreement;
(ii) “
Effective Date ” means any date as of which any part
of such registration statement relating to the Stock became, or is
deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations;
(iii) “
Issuer Free Writing Prospectus ” means each
“free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection with
the offering of the Stock and listed on Schedule 2
hereto;
(iv) “
Preliminary Prospectus ” means the prospectus relating
to the Stock included in such registration statement or filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(v) “
Pricing Disclosure Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with (a) the price of Stock and the number of shares listed on
the cover page of the Prospectus and (b) each Issuer Free
Writing Prospectus filed or used by the Company on or before the
Applicable Time, other than a road show that is an Issuer Free
Writing Prospectus under Rule 433 of the Rules and
Regulations;
(vi) “
Prospectus ” means the final prospectus relating to
the Stock, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations;
(vii) “
Registration Statement ” means, collectively, the
various parts of such registration statement, each as amended as of
the Effective Date for such part, including any Preliminary
Prospectus or the Prospectus and all exhibits to such registration
statement; and
(viii) “
Selling Stockholders Information ” means information
relating to the Selling Stockholders furnished to the Company in
writing by or on behalf of the Selling Stockholders expressly for
use in the Registration Statement, any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus or any amendment or
supplement thereto, or in any Permitted Issuer Information or any
Non-Prospectus Road Show, it being understood and agreed that the
only Selling Stockholders Information furnished to the Company by
each of the Selling Stockholders for use in the Registration
Statement, any Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus or any amendment or supplement thereto, or
in any Permitted Issuer Information or any Non-Prospectus Road Show
consists of the name of such selling stockholder (as such term is
used in the Prospectus), the number of shares of Common Stock to be
offered by such selling stockholder and the address and other
information with respect to the selling stockholder (excluding any
percentages), in each case that appear under the caption
“Selling Stockholders” in the Prospectus.
Any
reference to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by
reference therein pursuant to Form S-3 under the Securities Act as
of the date of such Preliminary Prospectus or the Prospectus. Any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), after
the date of such Preliminary Prospectus or the Prospectus, as the
case may be, and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference
to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company on Form 10-K filed with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Date that is incorporated by reference in
the Registration Statement. The Commission
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has not issued
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding or examination for such
purpose has been instituted or threatened by the Commission. The
Commission has not notified the Company of any objection to the use
of the form of the Registration Statement.
(b) The
Company has been since the time of initial filing of the
Registration Statement and continues to be a “well-known
seasoned issuer” (as defined in Rule 405) eligible to
use Form S-3 for the offering of the Stock, including not having
been an “ineligible issuer” (as defined in Rule 405) at
any such time or date. The Registration Statement is an
“automatic shelf registration statement” (as defined in
Rule 405) and was filed not earlier than the date that is
three years prior to the Delivery Date (as defined in
Section 5).
(c) The
Registration Statement conformed and will conform in all material
respects on the Effective Date and on the Delivery Date, and any
amendment to the Registration Statement filed after the date hereof
will conform in all material respects when filed, to the
requirements of the Securities Act and the Rules and Regulations.
The Prospectus will conform in all material respects when filed
with the Commission pursuant to Rule 424(b) and on the Delivery
Date to the requirements of the Securities Act and the Rules and
Regulations. The documents incorporated by reference in any
Preliminary Prospectus or the Prospectus conformed, and any further
documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the
Exchange Act or the Securities Act, as applicable, and the rules
and regulations of the Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no
representation or warranty is made as to (i) information
contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for
inclusion therein, which information is specified in
Section 11(f), and (ii) Selling Stockholders
Information.
(e) The
Prospectus will not, as of its date and on the Delivery Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that no
representation or warranty is made as to (i) information
contained in or omitted from the Prospectus in reliance upon and in
conformity with written information furnished to the Company by or
on behalf of the Underwriter specifically for inclusion therein,
which information is specified in Section 11(f), and
(ii) Selling Stockholders Information.
(f) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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(g) The
Pricing Disclosure Package did not, as of the Applicable Time,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the price of the
Stock and disclosures directly relating thereto will be included on
the cover page of the Prospectus; provided that no
representation or warranty is made as to (i) information
contained in or omitted from the Pricing Disclosure Package in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Underwriter specifically for
inclusion therein, which information is specified in Section 11(f),
and (ii) Selling Stockholders Information.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Package as of
the Applicable Time, 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, except that the price of the Stock and disclosures
directly relating thereto will be included on the cover page of the
Prospectus.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Company has
complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The
Company has not made any offer relating to the Stock that would
constitute an Issuer Free Writing Prospectus without the prior
written consent of the Underwriter. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
(j) The
Company is not an “investment company” within the
meaning of the Investment Company Act.
(k) Each of
the Company and its subsidiaries has been duly organized and is
validly existing in good standing under the laws of the
jurisdiction in which it is incorporated or organized with the
requisite power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in each of the Pricing Disclosure Package and the Prospectus, and
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to be so qualified or
in good standing could not reasonably be expected to adversely
affect the condition, (financial or otherwise), earnings, business
or prospects of the Company and its subsidiaries, taken as a whole
(a “ Material Adverse Effect ”).
(l) All the
outstanding shares of capital stock of the Company and its
subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable; all outstanding shares of capital
stock of the subsidiaries of the Company are owned by the Company
either directly or through wholly owned subsidiaries free and clear
of any perfected security interest or any other security interests,
claims, liens or encumbrances, except for liens securing the
obligations of the Company and its subsidiaries under its and their
revolving credit
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and term loan
credit facilities, in each case to the extent described in each of
the Pricing Disclosure Package and the Prospectus.
(m) The
Company’s authorized equity capitalization is as set forth in
the Pricing Disclosure Package and the Prospectus.
(n) This
Agreement has been duly authorized, executed and delivered by the
Company.
(o) No
consent, approval, authorization, filing with or order of any court
or governmental or regulatory authority or body is required for the
execution, delivery, compliance and performance by the Company of
this Agreement, except such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Stock by the Underwriter in the manner
contemplated herein and in the Prospectus.
(p) None of
the execution, delivery, compliance and performance by the Company
of this Agreement or the consummation of the transactions
contemplated by this Agreement will conflict with, 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 by-laws or
other organizational or governing documents of the Company or any
of its 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 subsidiaries is a
party or bound or to which any property of the Company or any of
its subsidiaries 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 any of its
subsidiaries or any of their properties, except, in the case of
clause (iii) only, for any such conflict with, breach or
violation of or imposition of any encumbrance of any property or
assets of the Company or any of its subsidiaries that could not
reasonably be expected to result in a Material Adverse
Effect.
(q) The
consolidated historical financial statements and schedules of the
Company and its consolidated subsidiaries and the consolidated
historical financial statements of Dex Media and its consolidated
subsidiaries incorporated by reference into the Pricing Disclosure
Package and the Prospectus present fairly in all material respects
the financial condition, results of operations and cash flows of
the Company and Dex Media, respectively, as of the dates and for
the periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as
otherwise noted therein); the pro forma financial statements
(including the related notes) incorporated by reference into each
of the Pricing Disclosure Package and the Prospectus are based upon
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions,
events and application of purchase accounting described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial
statement amounts in the pro forma financial statements in each of
the Pricing Disclosure Package and the Prospectus; the
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other
historical financial information and data incorporated by reference
into each of the Pricing Disclosure Package and the Prospectus are,
in all material respects, fairly presented.
(r) 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 their properties, is pending or, to
the knowledge of the Company or any of its subsidiaries, threatened
that (i) would reasonably be expected to have a material
adverse effect on the consummation of the transactions contemplated
by this Agreement; or (ii) would reasonably be expected to
have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus (exclusive of any amendment or
supplement thereto).
(s) The
Company and its subsidiaries, own or lease all such properties as
are necessary to the conduct of their respective operations as
presently conducted.
(t) None of
the Company or any of its subsidiaries, is in violation or default
of (i) any provision of its charter or by-laws or other
organizational or governing documents; (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 any of its
subsidiaries or any of their respective properties, except, in the
case of clause (iii) only, for any such violation or default
that could not reasonably be expected to result in a Material
Adverse Effect.
(u) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements
incorporated by reference in each of the Pricing Disclosure Package
and the Prospectus, are an independent registered public accounting
firm with respect to the Company as required by the Act and the
applicable rules and regulations adopted by the Commission and the
Public Accounting Oversight Board (United States).
(v) KPMG LLP,
who have certified certain financial statements of Dex Media and
its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements
incorporated by reference into each of the Pricing Disclosure
Package and the Prospectus, are an independent registered public
accounting firm with respect to Dex Media as required by the Act
and the applicable rules and regulations adopted by the Commission
and the Public Accounting Oversight Board (United
States).
(w) Each of
the Company and its subsidiaries has filed all foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof (except (i) in any case in which
the failure so to file could not reasonably be expected to result
in a Material Adverse Effect, (ii) for those filings being
contested in good faith and for which appropriate reserves have
been made in accordance with U.S. generally accepted accounting
principles or (iii) as set forth in each of the Pricing Disclosure
Package and the Prospectus), whether or not arising from
transactions in the ordinary course of business, 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
6
foregoing is
due and payable, except for any such assessment, fine or penalty
that is being contested in good faith or could not reasonably be
expected to result in a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of
business.
(x) Except as
described in the Pricing Disclosure Package and the Prospectus no
labor dispute with the employees of either of the Company or any of
its subsidiaries, exists, or, to the knowledge of the Company and
its subsidiaries, is threatened, and the Company is not aware of
any existing labor disturbance by the employees of the Company or
any of its subsidiaries or by the principal suppliers, contractors
or customers of the Company or any of its subsidiaries that could
reasonably be expected to result in a Material Adverse
Effect.
(y) The
Company and its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which it
is engaged; all policies of insurance and fidelity or surety bonds
insuring the Company and its subsidiaries or its respective
businesses, assets, employees, officers and directors are in full
force and effect, except for any such policy or bond, the failure
of which to be in full force and effect could not reasonably be
expected to result in a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms of such policies
and instruments in all material respects; there are no claims by
the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause, except for such
claims which individually or in the aggregate could not reasonably
be expected to result in a Material Adverse Effect; none of the
Company or any of its subsidiaries has been refused any insurance
coverage sought or applied for except for insurance coverage which
if not obtained could not reasonably be expected to result in a
Material Adverse Effect; and none of the Company or any of its
subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that could
reasonably be expected to result in a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of
business.
(z) The
Company and its subsidiaries, own or possess adequate licenses or
other rights to use all patents, trademarks, service marks, trade
names, copyrights and know-how that are necessary to conduct their
respective businesses as described in each of the Pricing
Disclosure Package and the Prospectus, except for the failure to
own or possess any such license or other right that could not
reasonably be expected to result in a Material Adverse Effect. None
of the Company or its subsidiaries has received any notice of
infringement of or conflict with (or knows of any such infringement
or conflict with) asserted rights of others with respect to any
patents, trademarks, service marks, trade names, copyrights or
know-how that, if such assertion of infringement or conflict were
sustained, could reasonably be expected to result in a Material
Adverse Effect, whether or not arising from transactions in the
ordinary course of business.
(aa) The
Company and its subsidiaries have good and marketable title to the
real property material to their respective businesses described in
each of the Pricing Disclosure Package and the Prospectus as being
owned by it, good and marketable title to the leasehold estates in
the real property leased by it and good title to the personal
property material to their respective business described in each of
the Pricing Disclosure Package and the Prospectus as being owned by
it, in each case, free and clear of all liens, charges,
encumbrances or restrictions,
7
except, in each
case, as would be permitted by the Indentures or as otherwise
described in each of the Pricing Disclosure Package and the
Prospectus.
(bb) The
Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither of 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, could reasonably be
expected to result in a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by each of the Pricing
Disclosure Package and the Prospectus (exclusive of any amendment
or supplement thereto).
(cc) The
Company and each of its subsidiaries maintain systems of
“internal control over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) that comply with the
requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and
principal financial officers, or persons performing similar
functions, 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, including, but not limited to
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.
(dd) The
Company and each of its subsidiaries maintain an effective system
of “disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that is designed to ensure
that information required to be disclosed by the Company in reports
that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods
specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is
accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required
disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange
Act.
(ee) The
Company and its subsidiaries (i) are in material compliance
with any and all applicable foreign, federal, state and local laws
and regulations, and codes, orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder,
relating to the protection of the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental Laws ”); (ii) have received and are
in material compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses; (iii) to the knowledge of
the Company, the Company and its subsidiaries have had no lien,
charge, encumbrance or restriction recorded under any Environmental
Law with respect to any asset, facility or property owned,
operated, leased or controlled by any of them; and (iv) have
not received written notice, or to knowledge of the
8
Company, oral
notice, of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, recordation of a lien,
charge, encumbrance or restriction or liability would not,
individually or in the aggregate have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by each of the
Pricing Disclosure Package and the Prospectus (exclusive of any
amendment or supplement thereto).
(ff) In the
ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of
which they identify and evaluate associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated by each of the Pricing Disclosure Package and the
Prospectus (exclusive of any amendment or supplement
thereto).
(gg) The
statistical and market-related data incorporated by reference into
each of the Pricing Disclosure Package and Prospectus are based on
or derived from sources which the Company believes to be reliable
and accurate.
(hh) Each of
the Company and its subsidiaries has fulfilled its obligations, if
any, under the minimum funding standards of Section 302 of the
United States Employee Retirement Income Security Act of 1974, as
amended (“ ERISA ”), and the regulations and
published interpretations thereunder with respect to each
“plan” (as defined in Section 3(3) of ERISA and
such regulations and published interpretations) in which employees
of the Company and its subsidiaries are eligible to participate and
each such plan is in compliance in all material respects with the
presently applicable provisions of ERISA and such regulations and
published interpretations; the Company and its subsidiaries have
not incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA.
(ii) No
forward-looking statements (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act)
contained in any of the Pricing Disclosure Package or the
Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(jj) The
Company and, to the knowledge of the Company, the Company’s
directors and officers, in their capacities as such, are in
compliance with the provisions of the Sarbanes-Oxley Act of 2002
currently applicable to the Company.
(kk) Except
as set forth in the Prospectus, there are no affiliations or
associations between any member of the National Association of
Securities Dealers, Inc. (“ NASD ”) and
any
9
of the
Company’s officers or directors or shareholders that own at
least five percent of the aggregate number of outstanding shares of
Common Stock.
(ll) The
Company has not distributed and, prior to the later to occur of the
Delivery Date and completion of the distribution of the Stock, will
not distribute any offering material in connection with the
offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to
which the Underwriter has consented in accordance with Section 1(i)
or 6(g).
(mm) The sale
of the Common Stock by the Selling Stockholders does not violate
any of the Company’s internal policies regarding the sale of
stock by its affiliates.
(nn) The
Issuer Free Writing Prospectuses listed on Schedule 2
hereto are the only “free writing prospectuses” (as
defined in Rule 405 of the Rules and Regulations) prepared by
or on behalf of the Company or used or referred to by the Company
in connection with the offering of the Stock.
Any certificate
signed by an officer of the Company and delivered to the
Underwriter or counsel for the Underwriter in connection with the
offering of the Stock shall be deemed a representation and warranty
by the Company, as to matters covered thereby, to the
Underwriter.
2.
Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder, severally and not
jointly, represents and warrants to, and agrees with, the
Underwriter as follows:
(a) Neither
the Selling Stockholder nor any person acting on behalf of the
Selling Stockholder (other than, if applicable, the Company and the
Underwriter) has used or referred to any “free writing
prospectus” (as defined in Rule 405) relating to the
Stock.
(b) The
Selling Stockholder has, and immediately prior to the Delivery Date
on which the Selling Stockholder is selling shares of Stock the
Selling Stockholder will have, good and marketable title to the
shares of Stock to be sold by such Selling Stockholder hereunder on
the Delivery Date.
(d) Upon
payment by the Underwriter for the Stock to be sold by such Selling
Stockholder pursuant hereto, delivery (within the meaning of the
UCC (as hereinafter defined)) of such Stock, 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 such Stock in
the name of Cede or such other nominee and the crediting of such
Stock on the books of DTC to a securities account (within the
meaning of the UCC) of the Underwriter maintained at DTC (assuming
that neither DTC nor the Underwriter has notice of any adverse
claim (within the meaning of Section 8-105 of the Uniform
Commercial Code as in effect on the date hereof in the State of New
York (“ UCC ”)) to such Stock), (i) DTC
shall be a “protected purchaser” of such Stock within
the meaning of Section 8-303 of the UCC, (ii) under
Section 8-501 of the UCC, the Underwriter will have acquired a
security entitlement in respect of such Stock and (iii) no
action
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based on any
“adverse claim,” within the meaning of
Section 8-102 of the UCC, 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, (A) such
shares will have been 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, (B) DTC will be registered as a
“clearing corporation” within the meaning of
Section 8-102 of the UCC and (C) appropriate entries to
the account of the Underwriter on the records of DTC will have been
made pursuant to the UCC.
(f) The
Selling Stockholder has full limited partnership or limited
liability company, as applicable, right, power and authority to
enter into this Agreement.
(g) This
Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
(i) The
execution, delivery and performance of this Agreement by the
Selling Stockholder do not and will not (i) 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, license or other agreement or instrument to
which the Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property or assets of
such Selling Stockholder is subject, (ii) result in any
violation of the provisions of the charter or by-laws (or similar
organizational documents) of the Selling Stockholder or
(iii) result in any violation of any applicable statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder, except in each case
for any conflicts, violations or defaults which could not,
individually or in the aggregate, reasonably be expected to
materially and adversely affect such Selling Stockholder’s
ability to fulfill its obligations under and consummate the
transactions contemplated by this Agreement or result in the
creation or imposition of any security interest, lien or other
encumbrance on any of the Stock being sold by such Selling
Stockholder under this Agreement.
(j) No
consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets
of the Selling Stockholder is required for the execution, delivery
and performance of this Agreement by the Selling Stockholder and
the consummation by the Selling Stockholder of the transactions
contemplated hereby, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
orders, filings, registrations or qualifications as have been
obtained or made or may be required under the Exchange Act and
applicable state or foreign securities laws (including Blue Sky
laws) in connection with the offer and sale of the Stock by the
Company, the Selling Stockholders and the Underwriter.
11
(k) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the
representations or warranties set forth in this Section 2(k) are
limited to statements or omissions made in reliance upon and in
conformity with the Selling Stockholders Information provided by
such Selling Stockholder.
(l) The
Prospectus will not, as of its date and on the Delivery Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
representations or warranties set forth in this Section 2(l) are
limited to statements or omissions made in reliance upon and in
conformity with the Selling Stockholders Information provided by
such Selling Stockholder.
(m) The
Pricing Disclosure Package did not, as of the Applicable Time,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the price of the
Stock and disclosures directly relating thereto will be included on
the cover page of the Prospectus; provided that the
representations or warranties set forth in this Section 2(m) are
limited to statements or omissions made in reliance upon and in
conformity with the Selling Stockholders Information provided by
such Selling Stockholder.
(o) The
Selling Stockholder is not prompted to sell shares of Common
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