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Exhibit 1.1
DRESSER-RAND GROUP INC.
20,000,000 Shares
Common Stock, par value $0.01 per Share
Underwriting Agreement
_________, 2006
Morgan Stanley & Co. Incorporated
Citigroup Global Markets Inc.
UBS Securities LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
D-R Interholding, LLC, a Delaware limited liability company
(the
"SELLING STOCKHOLDER"), proposes to sell to the several
Underwriters named in
Schedule I hereto (the "UNDERWRITERS"), 20,000,000 shares of the
common stock,
par value $0.01 per share, of the Dresser-Rand Group Inc., a
corporation
organized under the laws of Delaware (the "COMPANY"), (the "FIRM
SHARES").
The Selling Stockholder also proposes to sell to the several
Underwriters not more than an additional 3,000,000 shares of common
stock, par
value $0.01 per share, of the Company (the "ADDITIONAL SHARES") if
and to the
extent that Morgan Stanley & Co. Incorporated ("MORGAN
STANLEY"), Citigroup
Global Markets Inc. ("CGMI") and UBS Securities LLC ("UBS" and
together with
Morgan Stanley and CGMI, the "MANAGERS"), as Managers of the
offering, shall
have determined to exercise, on behalf of the Underwriters, the
right to
purchase such shares of common stock granted to the Underwriters in
Section 2
hereof. The Firm Shares and the Additional Shares are hereinafter
collectively
referred to as the "SHARES." The shares of common stock, par value
$0.01 per
share, of the Company are hereinafter referred to as the "COMMON
STOCK."
The Company has filed with the Securities and Exchange Commission
(the
"COMMISSION") a registration statement, including a prospectus,
relating to the
Shares. The registration statement as amended at the time it
becomes effective,
including the information (if any) deemed to be part of the
registration
statement at the time of effectiveness pursuant to Rule 430A under
the
Securities Act of 1933, as amended (the "SECURITIES ACT"), is
hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the
form first
used to confirm sales of Shares (or in the form first made
available to the
Underwriters by the Company to meet requests of purchasers pursuant
to Rule 173
under the Securities Act) is hereinafter referred to as the
"PROSPECTUS." If the
Company has filed an abbreviated registration statement to register
additional
shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the
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"RULE 462 REGISTRATION STATEMENT"), then any reference herein to
the term
"Registration Statement" shall be deemed to include such Rule 462
Registration
Statement.
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 preliminary prospectus included in the
Registration
Statement at the time it became effective, together with the free
writing
prospectuses, if any, each identified in Schedule II hereto; and
"BROADLY
AVAILABLE ROAD SHOW" means a "bona fide electronic road show", if
any, as
defined in Rule 433(h)(5) under the Securities Act that has been
made available
without restriction to any person. As used herein, the terms
"REGISTRATION
STATEMENT," "PRELIMINARY PROSPECTUS," "TIME OF SALE PROSPECTUS" and
"PROSPECTUS"
shall include the documents, if any, incorporated by reference
therein. 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
Securities Exchange Act of 1934 (the "EXCHANGE ACT"), that are
incorporated by
reference therein.
1. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter as set forth below in
this Section
1:
(a) The Registration Statement has become effective; 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.
(b) (i) 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, (ii) 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, (iii) 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,
(iv)
each broadly available road show, if any, when considered
together
with
the Time of Sale Prospectus, does 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 and (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 Underwriters through the Managers specifically for
inclusion
therein.
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(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 regulations of the Commission thereunder.
Except
for
the free writing prospectuses, if any, identified in Schedule
II
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.
(d) The Company is not, and after giving effect to the offering
and
sale
of the Shares and the application of the proceeds thereof as
described
in
the Prospectus 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
III
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
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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).
(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.
(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); the selected financial data
set forth
under the captions "Summary Historical and Pro Forma
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Financial Information" and "Selected Historical Financial
Information" in
the
Time of Sale Prospectus, the Prospectus and the Registration
Statement
fairly present, on the basis stated in the Time of Sale Prospectus,
the
Prospectus and the Registration Statement, the information
included
therein; the pro forma financial statements included in the Time of
Sale
Prospectus, the Prospectus and the Registration Statement
include
assumptions that provide a reasonable basis for presenting the
significant
effects directly attributable to the offering of the Shares; the
related
pro
forma adjustments give appropriate effect to those assumptions; and
the
pro
forma financial information reflect the proper application of
those
adjustments to the historical financial statement amounts in the
pro forma
financial statements included in the Time of Sale Prospectus,
the
Prospectus and the Registration Statement. The pro forma
financial
statements included in the Time of Sale Prospectus, the Prospectus
and the
Registration Statement comply as to form in all material respects
with the
applicable accounting requirements of Regulation S-X under the
Securities
Act.
The selected historical combined financial data as of and for the
one
month ended January 31, 2000 and the eleven months ended December
31, 2000
included in the Time of Sale Prospectus, the Prospectus and the
Registration Statement is correct and accurate in all material
respects.
(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).
(o) Each of the Company and its subsidiaries owns or leases all
such
properties as are necessary to the conduct of its 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 Prospectus,
is an
independent registered
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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 so 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.
(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
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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, 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.
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(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 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
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"
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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 Underwriters or counsel for the Underwriters in connection with
the sale of
the Shares by the Selling Stockholder shall be deemed a
representation and
warranty by the Company, as to matters covered thereby, to each
Underwriter.
2. Representations and Warranties of the Selling Stockholder.
The
Selling Stockholder represents and warrants to and agrees with each
of the
Underwriters 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
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performance by the Selling Stockholder of its obligations under
this
Agreement, except for the registration of the Shares under the 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 Underwriters.
(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
Underwriters, 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
Underwriters
(assuming that neither DTC nor any such 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 Underwriters 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 Underwriters 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 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 several Underwriters 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) 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), 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, (iii)
each
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<PAGE>
broadly available road show, if any, when considered together with
the Time
of
Sale Prospectus, does 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 and (iv) 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 a material fact necessary to make
the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that each of the representations
and
warranties set forth in clauses (i) to (iv) of this Paragraph 2(f)
is
limited solely to statements or omissions made in reliance upon
information
relating to the Selling Stockholder furnished to the Company in
writing by
the
Selling Stockholder expressly for use in the Registration
Statement,
the
Time of Sale Prospectus, the Prospectus or any amendments or
supplements thereto.
Any
certificate signed by any officer of the Selling Stockholder
and
delivered to the Underwriters or counsel for the Underwriters in
connection with
the offering of the Shares shall be deemed a representation and
warranty by the
Selling Stockholder, as to matters covered thereby, to each
Underwriter.
3. Agreements to Sell and Purchase. The Selling Stockholder
hereby
agrees to sell to the several Underwriters, and each Underwriter,
upon the basis
of the representations and warranties herein contained, but subject
to the
conditions hereinafter stated, agrees, severally and not jointly,
to purchase
from the Selling Stockholder at $[____________] a share (the
"PURCHASE PRICE")
the respective numbers of Firm Shares set forth in Schedule I
hereto opposite
its name.
On the basis of the representations and warranties contained in
this
Agreement, and subject to its terms and conditions, the Selling
Stockholder
agrees to sell to the Underwriters the Additional Shares, and the
Underwriters
shall have the right to purchase, severally and not jointly, up to
3,000,000
Additional Shares at the Purchase Price. You may exercise this
right on behalf
of the Underwriters in whole or from time to time in part by giving
written
notice of each election to exercise the option not later than 30
days after the
date of this Agreement. Any exercise notice shall specify the
number of
Additional Shares to be purchased by the Underwriters and the date
on which such
shares are to be purchased. Each purchase date must be at least one
business day
after the written notice is given and may not be earlier than the
closing date
for the Firm Shares nor later than ten business days after the date
of such
notice. Additional Shares may be purchased as provided in Section 4
hereof
solely for the purpose of covering over-allotments made in
connection with the
offering of the Firm Shares. On each day, if any, that Additional
Shares are to
be purchased (an "OPTION CLOSING DATE"), each Underwriter agrees,
severally and
not jointly, to purchase the number of Additional Shares (subject
to such
adjustments to eliminate fractional shares as you may determine)
that bears the
same proportion to the total number of Additional Shares to be
purchased on such
Option Closing Date as the number of Firm Shares set forth in
Schedule I hereto
opposite the name of such Underwriter bears to the total number of
Firm Shares.
4. Terms of Public Offering. The Company and the Selling
Stockholder
are advised by you that the Underwriters propose to make a public
offering of
their respective portions of the Shares as soon after the
Registration Statement
and this Agreement have become effective as in your judgment is
advisable. The
Company and the Selling Stockholder are further
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<PAGE>
advised by you that the Shares are to be offered to the public
initially at
$[_____________] a share (the "PUBLIC OFFERING PRICE") and to
certain dealers
selected by you at a price that represents a concession not in
excess of
$[_____________] a share under the Public Offering Price.
5. Payment and Delivery. Payment for the Firm Shares shall be made
to
the Selling Stockholder in Federal or other funds immediately
available in New
York City against delivery of such Firm Shares for the respective
accounts of
the several Underwriters at 10:00 a.m., New York City time, on
[_____________],
2006, or at such other time or such other date, not later than [5
BUSINESS DAYS
AFTER CLOSING DATE], as shall be designated in writing by you. The
time and date
of such payment are hereinafter referred to as the "CLOSING
DATE."
Payment for any Additional Shares shall be made to the Selling
Stockholder in Federal or other funds immediately available in New
York City
against delivery of such Additional Shares for the respective
accounts of the
several Underwriters at 10:00 a.m., New York City time, on the date
specified in
the corresponding notice described in Section 3 or at such other
time on the
same or on such other date, in any event not later than [10
BUSINESS DAYS AFTER
EXPIRATION OF OPTION], as shall be designated in writing by you.
The time and
date of such payment are hereinafter referred to as the "OPTION
CLOSING DATE."
The Firm Shares and Additional Shares shall be registered in
such
names and in such denominations as you shall request in writing not
later than
one full business day prior to the Closing Date or the applicable
Option Closing
Date, as the case may be. The Firm Shares and Additional Shares
shall be
delivered to you on the Closing Date or an Option Closing Date, as
the case may
be, for the respective accounts of the several Underwriters, with
any transfer
taxes payable in connection with the transfer of the Shares to the
Underwriters
duly paid, against payment of the Purchase Price therefor.
6. Company Agreements. The Company agrees with each Underwriter
that:
(a) The Company will furnish to each Underwriter and to counsel
for
the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and will furnish to the
Underwriters
during the period referred to in paragraph (c) below, as many
copies of the
Time
of Sale Prospectus, the Prospectus and any amendments and
supplements
thereto as they may reasonably request no later than 5:00 p.m., New
York
City
time, on the day immediately following the date hereof.
(b) The Company will not make any amendment or supplement to the
Time
of
Sale Prospectus or the Prospectus without the prior written consent
of
the
Managers (not to be unreasonably withheld or delayed).
(c) The Company will furnish each Underwriter a copy of each
proposed
free
writing prospectus to be prepared by or on behalf of, used by,
or
referred to by the Company and not to use or refer to any proposed
free
writing prospectus to which the Underwriters reasonably object.
(d) The Company will not take any action that would result in
an
Underwriter or the Company being required to file with the
Commission
pursuant to Rule 433(d)
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<PAGE>
under the Securities Act a free writing prospectus or Company
information
prepared by or on behalf of the Underwriter that the Underwriter
otherwise
would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers
to
buy
the Shares at a time when the Prospectus is not yet available
to
prospective purchasers and any event shall occur or condition exist
as a
result of which, in the opinion of counsel for the Underwriters or
counsel
for
the Company, it is necessary to amend or supplement the Time of
Sale
Prospectus in order to make the statements therein, in the light of
the
circumstances, not misleading, or if any event shall occur or
condition
exist as a result of which, in the opinion of counsel for the
Underwriters
or
counsel for the Company, the Time of Sale Prospectus conflicts with
the
information contained in the Registration Statement then on file,
or if, in
the
opinion of counsel for the Underwriters or counsel for the Company,
it
is
necessary to amend or supplement the Time of Sale Prospectus to
comply
with
applicable law, the Company will promptly prepare, file with
the
Commission and furnish, at its own expense, to the Underwriters and
to any
dealer upon request, either amendments or supplements to the Time
of Sale
Prospectus so that the statements in the Time of Sale Prospectus as
so
amended or supplemented will not, in the light of the circumstances
when
delivered to a prospective purchaser, be misleading or so that the
Time of
Sale
Prospectus, as amended or supplemented, will no longer conflict
with
the
Registration Statement, or so that the Time of Sale Prospectus,
as
amended or supplemented, will comply with applicable law.
(f) If at any time when a prospectus (or in lieu thereof the
notice
referred to in Rule 173(a) under the Securities Act) relating to
the Shares
is
required to be delivered under the Securities Act, any event occurs
as a
result of which, in the opinion of counsel for the Underwriters and
counsel
for
the Company, it is necessary to amend or supplement the Prospectus,
as
then
amended or supplemented, (i) in order that the Prospectus would
not
include any untrue statement of a material fact or omit to state
any
material fact necessary to make the statements therein, in the
light of the
circumstances under which they were made, not misleading, or (ii)
comply
with
applicable law, the Company will promptly (A) notify the
Underwriters
of
any such event; (B) subject to the requirements of paragraph (b) of
this
Section 6, prepare an amendment or supplement that will correct
such
statement or omission or effect such compliance; and (C) supply
any
supplemented or amended Prospectus to the several Underwriters and
counsel
for
the Underwriters without charge in such quantities as they may
reasonably request.
(g) The Company will arrange, if necessary, for the qualification
of
the
Shares for sale by the Underwriters under the laws of such
jurisdictions as the Underwriters may designate and will maintain
such
qualifications in effect so long as required for the sale of the
Shares;
provided that in no event shall the Company be obligated to qualify
to do
business in any jurisdiction where it is not now so qualified or to
take
any
action that would subject it to service of process in suits, other
than
those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject or to subject itself
to
taxation in excess of a nominal amount in respect of doing business
in any
jurisdiction. The Company will promptly advise the Underwriters of
the
receipt by the Company of
-13-
<PAGE>
any
notification with respect to the suspension of the qualification of
the
Shares for sale in any jurisdiction or the initiation or
threatening of any
proceeding for such purpose.
(h) The Company agrees that it will not take, directly or
indirectly,
any
action designed to or which has constituted or which might
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.
(i) The Company agrees to pay the costs and expenses relating to
the
following matters: (i) the preparation, printing (or
reproduction),
delivery (including postage, air freight charges and charges for
counting
and
packaging) and filing of copies of any preliminary prospectus, the
Time
of
Sale Prospectus, the Prospectus, any free writing prospectus
prepared by
or
on behalf of, used by or referred to by the Company and the
Registration
Statement, and all amendments or supplements to any of the
foregoing, as
may,
in each case, be reasonably requested for use in connection with
the
offering and sale of the Shares; (ii) any stamp or transfer taxes
in
connection with the sale and delivery of the Shares; (iii) the
printing (or
reproduction) and delivery of this Agreement and any blue sky
memorandum
delivered to investors in connection with the offering of the
Shares; (iv)
any
registration or qualification of the Shares for offer and sale
under
the
securities or blue sky laws of the several states and any other
jurisdictions specified pursuant to Section 5(d) (including filing
fees and
the
reasonable fees and expenses of counsel for the Underwriters
relating
to
such registration and qualification); (v) all filing fees and
the
reasonable fees and disbursements of counsel to the Underwriters
incurred
in
connection with the review and qualification, by the NASD, of
the
offering of the Shares (vi) all costs and expenses incident to
listing the
Shares on the NYSE; (vii) the cost of printing certificates
representing
the
Shares; (viii) the costs and charges of any transfer agent,
registrar
or
depositary; (ix) the transportation and other expenses
(collectively,
the
"ROAD SHOW EXPENSES") incurred by or on behalf of the
representatives
of
the Company and the Selling Stockholder in connection with
presentations
to
prospective purchasers of the Shares; (x) the fees and expenses of
the
Company's accountants and the fees and expenses of counsel
(including local
and
special counsel) for the Company and the Selling Stockholder; and
(xi)
all
other costs and expenses incident to the performance by the
Company
and/or the Selling Stockholder of their respective obligations
hereunder;
provided, however, that the Underwriters will pay one-half of the
cost of
any
chartered aircraft used in connection with presentations to
prospective
purchasers of the Shares.
(j) The Company will use its best efforts to cause the
Registration
Statement, if not effective at the Execution Time, and any
amendment
thereof, to become effective. Prior to the termination of the
offering of
the
Shares, the Company will not file any amendment of the
Registration
Statement or supplement to the Prospectus or any Rule 462(b)
Registration
Statement unless the Company has furnished you a copy for your
review prior
to
filing and will not file any such proposed amendment or supplement
to
which you reasonably object. Subject to the foregoing sentence, if
the
Registration Statement has become or becomes effective pursuant to
Rule
430A, or filing of the
Prospectus is otherwise required under Rule 424(b),
the
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form
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<PAGE>
approved by the Managers with the Commission pursuant to the
applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide
evidence satisfactory to the Managers of such timely filing. The
Company
will
promptly advise the Managers (1) when the Registration Statement,
if
not
effective at the Execution Time, shall have become effective, (2)
when
the
Prospectus, and any supplement thereto, shall have been filed
(if
required) with the Commission pursuant to Rule 424(b) or when any
Rule
462(b) Registration Statement shall have been filed with the
Commission,
(3)
when, prior to termination of the offering of the Shares, any
amendment
to
the Registration Statement shall have been filed or become
effective,
(4)
of any request by the Commission or its staff for any amendment of
the
Registration Statement, or any Rule 462(b) Registration Statement,
or for
any
supplement to the Prospectus or for any additional information, (5)
of
the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution
or
threatening of any proceeding for that purpose and (6) of the
receipt by
the
Company of any notification with respect to the suspension of
the
qualification of the Shares for sale in any jurisdiction or the
institution
or
threatening of any proceeding for such purpose. The Company will
use its
best
efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as
soon as
possible the withdrawal thereof.
(k) The Company will comply with all applicable securities and
other
applicable laws, rules and regulations, including, without
limitation, the
Sarbanes Oxley Act, and use its best efforts to cause the
Company's
directors and officers, in their capacities as such, to comply with
such
laws, rules and regulations, including, without limitation, the
provisions
of
the Sarbanes Oxley Act.
(l) As soon as practicable, the Company will make generally
available
to
its security holders and to the Managers an earnings statement
or
statements of the Company and its subsidiaries which will satisfy
the
provisions of Section 11(a) of the Securities Act and Rule 158
under the
Securities Act.
7. Selling Stockholder Agreements. The Selling Stockholder agrees
with
each Underwriter that:
(a) The Selling Stockholder will not take any action that would
result
in
an Underwriter or the Company being required to file with the
Commission
pursuant to Rule 433(d) under the Securities Act a free writing
prospectus
or
Company information prepared by or on behalf of the Underwriter
that the
Underwriter otherwise would not have been required to file
thereunder.
(b) Other than as contemplated under this Agreement, the
Selling
Stockholder agrees that it will not take, directly or indirectly,
any
action designed to or which has constituted or which might
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.
-15-
<PAGE>
8. Lock-Up Agreement.
(a) (i) The Company will not, and the Selling Stockholder agrees
that
it
will not, without the prior written consent of the Managers on
behalf of
the
Underwriters, during the period ending 90 days after the date of
the
Prospectus, (A) offer, pledge, sell, contract to sell, sell any
option or
contract to purchase, purchase any option or contract to sell,
grant any
option, right or warrant to purchase, lend, or otherwise transfer
or
dispose of, directly or indirectly, any shares of Common Stock or
any
securities convertible into or exercisable or exchangeable for
Common Stock
or
(B) enter into any swap or other arrangement that transfers to
another,
in
whole or in part, any of the economic consequences of ownership of
the
Common Stock, whether any such transaction described in clause (A)
or (B)
above is to be settled by delivery of Common Stock or such
other
securities, in cash or otherwise or (C) in the case of the Company,
file
any
registration statement with the Securities and Exchange
Commission
relating to the offering of any shares of Common Stock or any
securities
convertible into or exercisable or exchangeable for Common
Stock.
(ii) The restrictions contained in the preceding paragraph
shall
not
apply to (A) the Shares to be sold hereunder, (B) the issuance by
the
Company of shares of Common Stock upon the exercise of an option or
warrant
or
the conversion of a security outstanding on the date hereof of
which the
Underwriters have been advised in writing, (C) grants, issuances
or
exercises under any existing stock incentive plans or employee
benefits
plans or (D) the issuance of Common Stock in connection with
the
acquisition of, or joint venture with, another company; provided
that in
the
case of any transfer, distribution or issuance pursuant to clause
(D),
(1)
each distributee or recipient shall sign and deliver a lock-up
letter
substantially in the form of Exhibit A hereto and (2) the
undersigned and
the
recipient shall not be required to, and shall not voluntarily, file
a
report under the Exchange Act, reporting a reduction in
beneficial
ownership of shares of Common Stock during the restricted period
referred
to
in the preceding paragraph. In addition, the Selling Stockholder
agrees
and
consents that, without the prior written consent of Morgan Stanley
and
CGMI
on behalf of the Underwriters, it will not, during the period
ending
90
days after the date of the Prospectus, make any demand for, or
exercise
any
right with respect to, the registration of any shares of Common
Stock
or
any security convertible into or exercisable or exchangeable for
Common
Stock, provided that the Selling Stockholder may make a demand for,
or
exercise rights with respect
