Common
Stock, par value $0.01 per share
Goldman,
Sachs & Co.,
As representative of the several
Underwriters
named in Schedule I hereto (the
“Representative”),
85 Broad Street,
New York, New York 10004.
Dana
Holding Corporation, a Delaware corporation (the
“Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the “Underwriters”) an
aggregate of 34,000,000 shares (the “Firm Shares”) and,
at the election of the Underwriters, up to 5,100,000 additional
shares (the “Optional Shares”) of Common Stock, par
value $0.01 per share (“Stock”) of the Company (the
Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof being collectively
called the “Shares”).
1. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a)
A registration statement on Form S-3 (File No. 333-161676)
(the “Initial Registration Statement”) in respect of
the Shares has been filed with the Securities and Exchange
Commission (the “Commission”); the Initial Registration
Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you and, excluding exhibits to the
Initial Registration Statement, but including all documents
incorporated by reference in the prospectus included therein, to
you for each of the other Underwriters have been declared effective
by the Commission in such form; no other document with respect to
the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed, or transmitted for
filing, with the Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the Commission under
the Securities Act of 1933, as amended (the “Act”),
each in the form heretofore delivered to you); and no stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or any part thereof, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (the base prospectus filed as part of
the Initial Registration Statement, in the form in which it has
most
recently
been filed with the Commission on or prior to the date of this
Agreement relating to the Shares, is hereinafter called the
“Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Act is hereinafter called a “Preliminary Prospectus”;
the various parts of the Initial Registration Statement, including
all exhibits thereto and including any prospectus supplement
relating to the Shares that is filed with the Commission and deemed
by virtue of Rule 430B under the Act to be part of the Initial
Registration Statement, each as amended at the time such part of
the Initial Registration Statement became effective, are
hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in Section
1(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the
Shares filed with Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Act and any documents filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and incorporated
therein, in each case after the date of the Basic Prospectus, such
Preliminary Prospectus or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Shares is hereinafter
called an “Issuer Free Writing Prospectus”);
(b)
No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs
& Co. expressly for use therein;
(c)
For the purposes of this Agreement, the “Applicable
Time” is 5:00 p.m. (Eastern time) on the date of this
Agreement. The Pricing Prospectus, as of the
2
Applicable
Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule II(a) hereto does not conflict
with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the
Pricing Prospectus as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(d)
The documents incorporated by reference in the Pricing Prospectus
and Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein; and no such
documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule II(b)
hereto;
(e)
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or
3
omissions
made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through Goldman, Sachs
& Co. expressly for use therein;
(f)
Neither the Company nor any of its “significant
subsidiaries” (as such term is defined in Rule 1-02(w)
of Regulation S-X under the Act) has sustained since the date
of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Pricing Prospectus and except as
would not, individually or in the aggregate, have a material
adverse effect on the current or future consolidated financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”); and, since the respective
dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any change
in the capital stock (except for changes pursuant to the
Company’s equity plans described in its filings under the
Exchange Act and incorporated by reference into the Pricing
Prospectus and changes due to the exercise of options outstanding
prior to the date of this Agreement) or long term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Pricing Prospectus;
(g)
The Company and its significant subsidiaries have good and valid
title in fee simple to all real property and good and valid title
to all personal property owned by them, in each case free and clear
of all liens, encumbrances and defects except such as are described
in the Pricing Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under
lease by the Company and its significant subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such property and buildings
by the Company and such subsidiaries;
(h)
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except to the extent that the failure to be so
qualified or in good standing in any such jurisdiction would not
have a Material Adverse Effect; and each significant subsidiary of
the Company has been duly
4
incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation;
(i)
The Company has an authorized capitalization as set forth in the
Pricing Prospectus and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable and conform to the description of
the Stock contained in the Pricing Prospectus and Prospectus; and
all of the issued shares of capital stock of each significant
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for
directors’ qualifying shares and other minority interests
disclosed to you) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or
claims;
(j)
The Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform
to the description thereof in the Pricing Prospectus;
(k)
The issue and sale of the Shares and the compliance by the Company
with this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Restated Certificate of Incorporation or By-laws of the Company or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement except such as
have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the
Underwriters;
(l)
Other than as set forth in the Pricing Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, which, if
determined adversely to the Company or any of its subsidiaries,
would have a Material Adverse Effect; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(m)
Neither the Company nor any of its significant subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in
default in the performance or
5
observance
of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except such as would not have a
Material Adverse Effect;
(n)
The statements set forth in the Pricing Prospectus and Prospectus
under the caption “Description of Capital Stock”,
insofar as they purport to constitute a summary of the terms of the
Stock, and under the caption “Certain United States Federal
Income Tax Consequences to Non-U.S. Holders”, insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all
material respects;
(o)
The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof,
will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(p)
At the earliest time after the filing of the Initial Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)
under the Act) of the Shares, the Company was not an
“ineligible issuer” as defined in Rule 405 under
the Act;
(q)
PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, and have audited
the Company’s internal control over financial reporting and
reviewed management’s assessment thereof, is an independent
registered public accounting firm as required by the Act and the
rules and regulations of the Commission thereunder;
(r)
The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over
financial reporting;
(s)
Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, there has been no
change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting;
(t)
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that
comply with the
6
requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and
procedures are effective;
(u)
Except as disclosed in the Pricing Prospectus, neither the Company
nor any of its subsidiaries (i) is in violation of any law,
statute, or any rule, regulation, decision or order of any
governmental agency or body or any court relating to the use,
disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively,
“Environmental Laws”), (ii) owns or operates any
real property which, to its knowledge, is contaminated with any
substance that is regulated under any Environmental Laws,
(iii) is, to its knowledge, liable for any off-site disposal
or contamination pursuant to any Environmental Laws, or
(iv) has received any written notice of any claim under any
Environmental Laws, and the Company is not aware of any pending
investigation which could reasonably be expected to lead to such a
claim, in the case of clauses (i), (ii), (iii) and (iv), which
could have, individually or in the aggregate, a Material Adverse
Effect;
(v)
To the Company’s knowledge, the Company and each of its
subsidiaries own, possess or have the right to employ sufficient
patents, patent rights, licenses, inventions, copyrights, know how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, software, systems or
procedures), trademarks, service marks and trade names, inventions,
computer programs, technical data and information (collectively,
the “Intellectual Property Rights”) reasonably
necessary to conduct their businesses as now conducted, except
where the failure to own, possess or have the right would not,
individually or in the aggregate, have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any
notice of infringement or conflict with asserted rights of others
with respect to any of the Intellectual Property Rights, whether or
not arising from transactions in the ordinary course of business,
except for such infringements or conflicts that would not,
individually or in the aggregate, have a Material Adverse Effect.
To the Company’s knowledge, the use of the Intellectual
Property Rights in connection with the business and operations of
the Company and its subsidiaries does not infringe on the rights of
any person, except to the extent that any such infringement would
not reasonably be expected to result in a Material Adverse
Effect;
(w)
The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are, in management’s judgment, prudent
and customary in the businesses in which they are engaged; neither
the Company nor any such subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any
such subsidiary 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
7
from
similar insurers as may be necessary to continue its business at a
cost that would not, have a Material Adverse Effect, except, in
each case, as set forth in or contemplated in the Pricing
Prospectus; and
(x)
As of the date hereof, to the best of the Company’s
knowledge, none of the Company’s debt securities (for the
avoidance of doubt, excluding any debt under the Company’s
term loan facility or revolving credit facility) or preferred stock
has been rated by any “nationally recognized statistical
rating organization”, as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the
Act.
2. Subject
to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company, at a purchase price per share of $6.4092, the
number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and
to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a
fraction, the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and
the denominator of which is the maximum number of Optional Shares
that all of the Underwriters are entitled to purchase
hereunder.
The
Company hereby grants to the Underwriters the right to purchase at
their election up to 5,100,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole
purpose of covering sales of shares in excess of the number of Firm
Shares, provided that the purchase price per Optional Share shall
be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm
Shares but not payable on the Optional Shares. Any such election to
purchase Optional Shares may be exercised only by written notice
from you to the Company, given within a period of 30 calendar days
after the date of this Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon
the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) The
Shares to be purchased by each Underwriter hereunder, in definitive
global form, and in such authorized denominations and registered in
such names as Goldman, Sachs & Co. may request upon at least
forty-eight hours’ prior notice to the
8
Company
shall be delivered by or on behalf of the Company to Goldman, Sachs
& Co., through the facilities of the Depository Trust Company
(“DTC”), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to Goldman, Sachs & Co. at
least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for
checking and packaging at least twenty-four hours prior to the Time
of Delivery (as defined below) with respect thereto at the office
of DTC or its designated custodian (the “Designated
Office”). The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on September 29, 2009 or such other time and date as
Goldman, Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York time,
on the date specified by Goldman, Sachs & Co. in the written
notice given by Goldman, Sachs & Co. of the Underwriters’
election to purchase such Optional Shares, or such other time and
date as Goldman, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is
herein called the “First Time of Delivery”, such time
and date for delivery of the Optional Shares, if not the First Time
of Delivery, is herein called the “Second Time of
Delivery”, and each such time and date for delivery is herein
called a “Time of Delivery”.
(b) The
documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including
the cross receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 8(j) hereof, will
be delivered at the offices of Sullivan & Cromwell LLP, 125
Broad Street, New York, New York 10004 (the “Closing
Location”), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be
held at the Closing Location at 5:00 p.m., New York City time, on
the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4,
“New York Business Day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The
Company agrees with each of the Underwriters:
(a)
To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission’s close of business on the second
business day following the date of this Agreement or such earlier
time as may be required under the Act; to make no further amendment
or any supplement to the Registration Statement, the Basic
Prospectus or the Prospectus prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish you with copies
thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act;
within the time required by such Rule; to file promptly all reports
and any definitive proxy or
9
information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Shares; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or other prospectus in respect of the
Shares, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b)
Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale
under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to take any action that would
subject it to general service of process in any jurisdiction or
subject it to taxation as a foreign corporation;
(c)
Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with electronic copies of
the Prospectus in New York City (and with printed copies of the
Prospectus by 10:00 a.m. in the following New York Business
Day), and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any
time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the
Shares and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is delivered, not misleading, or,
if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospec
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