Pursuant to 17 §C.F.R. 240.24b-2, confidential information (indicated as [***]) has been omitted and has been filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Application filed with the Commission.
Exhibit 10.5
EXECUTION VERSION
SUPPLEMENTAL CONFIRMATION
To: | Dresser-Rand Group Inc. | |
| West8 Tower, Suite 1000 | ||
| 10205 Westheimer Rd. | ||
| Houston, Texas 77042 | ||
From: | Goldman, Sachs & Co. | |
Subject: | Accelerated Stock Buyback | |
Ref. No: | SDB4164884030 | |
Date: | March 22, 2011 |
The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Goldman, Sachs & Co. (“GS&Co.”) and Dresser-Rand Group Inc. (“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between GS&Co. and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of March 22, 2011 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows:
| Trade Date: | March 22, 2011 | |
| Forward Price Adjustment Amount: | USD [***] | |
| Calculation Period Start Date: | March 23, 2011 | |
| Scheduled Termination Date: | November 22, 2011 | |
| First Acceleration Date: | [***] | |
| Prepayment Amount: | USD 80,000,000 | |
| Prepayment Date: | March 25, 2011 |
| Initial Shares: | 1,143,293 Shares;providedthat if, in connection with the Transaction, GS&Co. is unable, after using its good faith commercially reasonable efforts, to borrow or otherwise acquire a number of Shares equal to the Initial Shares for delivery to Counterparty on the Initial Share Delivery Date, the Initial Shares delivered on the Initial Share Delivery Date shall be reduced to such number of Shares that GS&Co. is able to so borrow or otherwise acquire, and GS&Co. shall use reasonable good faith efforts to borrow or otherwise acquire a number of Shares equal to the shortfall in the Initial Share Delivery and to deliver such additional Shares as soon as reasonably practicable. The aggregate of all Shares delivered to Counterparty in respect of the Transaction pursuant to this paragraph shall be the “Initial Shares” for purposes of “Number of Shares to be Delivered” in the Master Confirmation. | |
| Initial Share Delivery Date: | March 25, 2011 | |
| Termination Price: | USD 26.24 per Share | |
| Additional Relevant Days: | The 5 Exchange Business Days immediately following the Calculation Period. |
3. Counterparty represents and warrants to GS&Co. that neither it nor any “affiliated purchaser” (as defined in Rule 10b-18 under the Exchange Act) has made any purchases of blocks pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act during either (i) the four full calendar weeks immediately preceding the Trade Date or (ii) during the calendar week in which the Trade Date occurs.
4. This Supplemental Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Supplemental Confirmation by signing and delivering one or more counterparts.
2
Counterparty hereby agrees (a) to check this Supplemental Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by GS&Co.) correctly sets forth the terms of the agreement between GS&Co. and Counterparty with respect to the Transaction to which this Supplemental Confirmation relates, by manually signing this Supplemental Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Equity Derivatives Documentation Department, facsimile No. 212-428-1980/83.
| Yours sincerely, GOLDMAN, SACHS & CO. | ||||
| By: | /s/ Jonathan Lipnick | |||
| Authorized Signatory | ||||
Agreed and Accepted By:
DRESSER-RAND GROUP INC.
| By: | /s/ Mark E. Baldwin | |||
| Title: Executive Vice President and Chief Financial Officer |