Exhibit 1.1
BE AEROSPACE, INC.
(a Delaware corporation)
13,000,000 Shares
Common Stock
(par value $0.01)
UNDERWRITING AGREEMENT
December 6, 2005
Credit Suisse First Boston LLC
UBS Securities LLC
Friedman, Billings, Ramsey & Co., Inc.
Stephens Inc.
SG Cowen & Co., LLC
CIBC World Markets Corp.
D.A. Davidson & Co. Inc.
Jefferies & Company, Inc.
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010
Ladies and Gentlemen:
BE Aerospace, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to each of Credit Suisse First Boston LLC ("CSFB"), UBS
Securities LLC ("UBS"), Friedman, Billings, Ramsey & Co., Inc., Stephens Inc.,
SG Cowen & Co., LLC, CIBC World Markets Corp., D.A. Davidson & Co. Inc. and
Jefferies & Company, Inc. (each an "Underwriter" and together the
"Underwriters"), 13,000,000 shares of its common stock, par value $0.01 per
share (the "Common Stock") and, at the option of the Underwriters, an aggregate
of not more than 1,950,000 additional shares of Common Stock (the "Optional
Securities"). The aforesaid 13,000,000 shares of Common Stock (the "Initial
Securities") and the Optional Securities are herein collectively called the
"Securities". Capitalized terms used herein and not otherwise defined herein
have the respective meanings specified in the Prospectus.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with the Underwriters as of the Applicable
Time and as of the Closing Time and as of each Date of Delivery, if any, as
follows:
(i) A registration statement on Form S-3 (No. 333-112493) related to
the Securities, as amended by Amendment No. 1 thereto, has been filed with
the Securities and Exchange Commission (the "Commission"), under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement, as amended, has been declared effective by the Commission on
February 13, 2004 and true and complete copies of which have heretofore
been delivered to you. Such registration statement, in the form in which it
was declared effective, as amended through the Applicable Time, including
all documents incorporated or deemed to be incorporated by reference
therein through the Applicable Time, is hereinafter referred to as the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The
Company has prepared and filed with the Commission a preliminary prospectus
supplement dated November 28, 2005 relating to the Securities. Such
preliminary prospectus, together with the prospectus included in the
Registration Statement at the time it was declared effective and all
documents incorporated or deemed incorporated therein by reference, is
herein called the "Preliminary Prospectus." Promptly after execution and
delivery of this underwriting agreement (the "Agreement"), the Company will
prepare and file a final prospectus supplement relating to the Securities
in accordance with the provisions of Rule 424(b) under the 1933 Act
Regulations. Such final prospectus supplement in the form first furnished
to the Underwriters to confirm sales of the Securities, together with the
prospectus included in the Registration Statement at the time it was
declared effective and all documents incorporated therein by reference, is
herein called the "Prospectus." "Issuer Free Writing Prospectus" means any
"issuer free writing prospectus," as defined in Rule 433 of the 1933 Act.
"Applicable Time" means the time of sale with respect to each applicable
investor at or prior to the Closing Time. For purposes of this Agreement,
all references to the Registration Statement, the Preliminary Prospectus,
the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
(ii) At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective, at the Applicable Time and at the Closing Time (and, if
any Optional Securities are purchased, at the Date of Delivery), the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not 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. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendment thereto has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement, any Rule 462(b)
Registration Statement or any post-effective amendment thereto has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional
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information has been complied with. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any
Optional Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. As of the Applicable Time, the Preliminary Prospectus and any
Issuer Free Writing Prospectus listed on Schedule A-1, taken together with
the information contained in Schedule A-2, only to the extent such
information is provided to an investor (collectively, the "General
Disclosure Package"), 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; except that each representation and warranty made in
this clause (ii) does not apply in all respects to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters through CSFB expressly for use
in the preliminary prospectus, the Prospectus or any amendment or
supplement thereto.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
and with the other information in the Prospectus, at the respective times
the Registration Statement and any amendments thereto became effective, at
the Applicable Time, at the time the Prospectus was issued and at the
Closing Time (and, if any Optional Securities are purchased, at the Date of
Delivery), did not, do not 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 in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iv) Deloitte & Touche LLP, which is reporting upon the audited
financial statements and related notes included or incorporated in the
Registration Statement and Prospectus, is an independent public accountant
with respect to the Company in accordance with the provisions of the 1933
Act and the 1933 Act Regulations.
(v) The financial statements of the Company included in or
incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus present fairly (a) the financial
position of the Company and its subsidiaries on a consolidated basis as of
the dates indicated and (b) the results of operations and cash flows of the
Company and its subsidiaries on a consolidated basis for the periods
specified, subject, in the case of unaudited financial statements, to
normal year-end adjustments which shall not be materially adverse to the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The financial statement schedules, if any,
included or incorporated by reference in the Registration Statement, the
General Disclosure Package
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and the Prospectus present fairly the information required to be stated
therein. The selected financial data included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus. The assumptions used in preparing
the pro forma financial information included in the Registration Statement,
the General Disclosure Package and the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein. All financial statements and pro
forma financial statements required by Regulation S-X to be included or
incorporated by reference in the Registration Statement have been included
or incorporated by reference.
(vi) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the General Disclosure
Package and the Prospectus; and the Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(vii) The Company's only subsidiaries (either direct or indirect) are
as listed in Exhibit A attached hereto (each individually, a "Subsidiary"
and collectively, the "Subsidiaries"). The Company has no significant
subsidiaries (as defined in Rule 1.02 of the Commission's Regulation S-X).
BE Aerospace Services, LLC, Bomhoff Acquisition, Inc., Denton Jet
Interiors, LLC, Nelson Aerospace, LLC, Maynard Precision, LLC, BEA
Aerospace (U.S.A.), LLC, Flight Structures, Inc., DMGI, LLC, T.L. Windust
Machine, LLC, Acurex, LLC, Modern Metals, LLC, Nordskog Industries, Inc.,
M&M Aerospace Hardware, Inc., B/E Aerospace Development Corporation, and
B/E Aerospace Machined Products, Inc. are inactive subsidiaries with no
significant assets and are not engaged in any active trade or business. All
of the outstanding shares of capital stock of each Subsidiary have been
duly authorized and validly issued or created and are fully paid and
non-assessable and (other than in the case of BE Aerospace (France)
S.A.R.L., of which five shares are owned by Marc Leveille, a French
national and director of BEA France, and five shares are owned by The
K.A.D. Companies, Inc., an investment, venture capital and consulting firm
owned by Amin J. Khoury, the Chairman of the Company, and Advanced Thermal
Sciences Corporation, of which approximately 6% of the outstanding shares
are owned by officers and employees of the Company) are owned by the
Company, directly or through one or more Subsidiaries, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind, except that (1) 65% of the issued and outstanding Ordinary
Shares of BEAH(UK) are pledged to the Agent under the Bank Credit Facility,
(2) 65% of the issued and outstanding capital stock of BEA Aerospace
Netherlands B.V. is pledged to the Agent under the Bank Credit Facility,
and (3) the outstanding capital stock of each of BEA Aerospace USA, LLC,
Acurex LLC, and BE Aerospace Services, LLC is pledged to the Agent under
the Bank Credit Facility.
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The Company does not, directly or indirectly, own any equity or long-term
debt securities of any corporation, firm, partnership, joint venture or
other entity, other than the stock of its Subsidiaries.
(viii) The Company had, at the date indicated in the Preliminary
Prospectus, a duly authorized, issued and outstanding capitalization as set
forth in the Preliminary Prospectus under the caption "Capitalization".
(ix) The Securities and all other outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive rights of
any stockholder of the Company. There are no outstanding options to
purchase, or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or
sell, any shares of Common Stock of the Company, any shares of capital
stock of any subsidiary, or any such warrants, convertible securities or
obligations, except as set forth in General Disclosure Package and the
Prospectus, as described in the Company's most recent proxy statement
incorporated by reference in General Disclosure Package and the Prospectus,
or issuances pursuant to plans referred to in the General Disclosure
Package and the Prospectus or the Company's most recent proxy statement
incorporated by reference in the Prospectus.
(x) The Common Stock of the Company, including the Securities,
conforms in all material respects to the description thereof contained in
the Preliminary Prospectus under the caption "Description of Common Stock".
(xi) Except as disclosed in the General Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the transaction contemplated hereby.
(xii) The Common Stock is listed on the Nasdaq National Market and we
have filed notice with the Nasdaq National Market to list the Securities.
(xiii) This Agreement has been duly authorized, executed and delivered
by the Company.
(xiv) Since the respective dates as of which information is given in
the Registration Statement, the General Disclosure Package and the
Prospectus, except as otherwise stated therein or contemplated thereby,
there has not been (A) any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business, (B) any transaction
entered into by the Company or any subsidiary, other than in the ordinary
course of business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any
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dividend or distribution of any kind declared, paid or made by the Company
on its capital stock.
(xv) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise. The execution and delivery by the Company of this Agreement,
the issuance, sale and delivery of the Securities by the Company, the
consummation by the Company of the transactions contemplated in this
Agreement, the General Disclosure Package and the Prospectus, including,
but not limited to, the use of proceeds for the redemption of the
outstanding 8% Senior Subordinated Notes due 2008 as described in the
General Disclosure Package, and compliance by the Company with the terms of
this Agreement have been duly authorized by all necessary corporate action
on the part of the Company and do not and will not result in any violation
of the charter or by-laws of the Company or any Subsidiary, and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any Subsidiary under, (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company or any Subsidiary is a party or by which they may be
bound or to which any of their respective properties may be subject except
as such would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise or (B) any
existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Subsidiary or any of their
respective properties.
(xvi) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the 1933 Act Regulations with respect to
this Agreement and the transactions contemplated thereunder and the
securities or "blue sky" laws of the various states) is required for the
valid authorization, issuance, sale and delivery of the Securities, for the
execution, delivery or performance by the Company of this Agreement or for
the consummation by the Company of the transactions contemplated in this
Agreement, General Disclosure Package and the Prospectus, except such of
the foregoing as will be obtained prior to the Closing Time.
(xvii) Except as disclosed in the General Disclosure Package and the
Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary or any of their respective
officers, in their capacity as such, that could reasonably be expected to
result in any material adverse change in the condition
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(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise, or that
could reasonably be expected to materially and adversely affect the
properties or assets of the Company and its subsidiaries, considered as one
enterprise, or that could adversely affect the consummation of the
transactions contemplated in this Agreement, the General Disclosure Package
and the Prospectus; the aggregate of all pending legal or governmental
proceedings that are not described in the General Disclosure Package and
the Prospectus to which the Company or any Subsidiary is a party or which
affect any of their respective properties, including ordinary routine
litigation incidental to the business of the Company or any Subsidiary,
could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xviii) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the General Disclosure
Package and the Prospectus as owned by it, free and clear of all liens,
charges, encumbrances or restrictions, except such as (A) are described in
the General Disclosure Package and the Prospectus or (B) are neither
material in amount nor materially significant in relation to the business
of the Company and its subsidiaries, considered as one enterprise; all of
the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any Subsidiary holds properties described in the General Disclosure Package
and the Prospectus, are in full force and effect, and neither the Company
nor any Subsidiary has received any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such corporation to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xix) The Company and the Subsidiaries each owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations, including, without
limitation, any licenses, permits, certificates, consents, orders,
approvals and other authorizations required to be obtained from the Federal
Aviation Administration, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as presently
conducted, and neither the Company nor any Subsidiary has received any
notice of proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations except as such would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xx) The Company and the Subsidiaries each owns or possesses adequate
patents, patent licenses, trademarks, service marks and trade names
necessary to carry on its business as presently conducted, and neither the
Company nor any Subsidiary has received any notice of infringement of or
conflict with asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names that in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
materially adversely affect the condition (financial or otherwise),
earnings, business
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affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxi) To the best knowledge of the Company, no labor problem exists
with its employees or with the employees of any Subsidiary or is imminent
that could materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or any
Subsidiary's principal suppliers, contractors or customers that could be
expected to materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise.
(xxii) Neither the Company nor any Subsidiary has taken or will take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price
of the Securities.
(xxiii) All United States federal income tax returns of the Company
and the Subsidiaries required by law to be filed have been filed and all
United States federal income taxes which are due and payable have been
paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided. The
Company and the Subsidiaries each has filed all other tax returns that are
required to have been filed by it pursuant to applicable foreign, state,
local or other law except insofar as the failure to file such returns would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, and has paid all taxes
due pursuant to such returns or pursuant to any assessment received by the
Company and the Subsidiaries, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the Company in
respect of any income and corporation tax liability for any years not
finally determined are adequate to meet any assessments or re-assessments
for additional income tax for any years not finally determined, except to
the extent of any inadequacy that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xxiv) The Company and the Subsidiaries each maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (E) any
significant deficiencies or material weaknesses in the design or operation
of internal accounting controls which could adversely affect the Company's
ability to record, process, summarize and report financial information
data, and any fraud whether or not material that involves management or
other employees who have a
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significant role in the Company's internal accounting controls, are
adequately and promptly disclosed to the Company's independent auditors and
the audit committee of the Company's board of directors. The Company and
the Subsidiaries have not made, and, to the knowledge of the Company, no
employee or agent of the Company or any Subsidiary has made, any payment of
the Company's funds or any Subsidiary's funds or received or retained any
funds in violation of any applicable law, regulation or rule or that would
be required to be disclosed in the General Disclosure Package and the
Prospectus.
(xxv) Except as disclosed in the General Disclosure Package and the
Prospectus, there are no holders of securities of the Company who have the
right to require the Company to register securities held by them under the
1933 Act on any registration statement that will be used to register the
Securities or the Exchange Securities.
(xxvi) The Company is not an "investment company," and will not be as
a result of the sale of the Securities pursuant to this Agreement, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(xxvii) Except as disclosed in the General Disclosure Package and the
Prospectus and except as would not individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, (A) the Company and the
Subsidiaries are each in compliance with all applicable Environmental Laws,
(B) the Company and the Subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or threatened
Environmental Claims against the Company or any of the Subsidiaries, and
(D) there are no circumstances with respect to any property or operations
of the Company or any Subsidiary that could reasonably be anticipated to
form the basis of an Environmental Claim against the Company or any
Subsidiary.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to the
environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority. Environmental Claims means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Law.
(xxviii) The Company and its consolidated subsidiaries employ
disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company and its subsidiary in
the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods
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specified in the Commission's rules and forms, and is accumulated and
communicated to the Company's management and its subsidiaries management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate to allow timely decisions
regarding disclosure.
Any certificate signed by any officer of the Company or any Subsidiary and
delivered to the Underwriters or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
(b) The Underwriters represent and warrant to, and agrees with, the
Company as of the date hereof, the Applicable Time and as of the Closing Time
and as of each Date of Delivery that the Underwriters have not prepared or used,
authorized the use of, referred to, or participated in the planning for the use
of, any "free writing prospectus", as defined in Rule 405 under the 1933 Act
other than (i) any Issuer Free Writing Prospectus identified on Schedule A or
(ii) any free writing prospectus prepared by such underwriter and approved by
the Company in advance in writing (an "Underwriter Free Writing Prospectus").
Section 2. Purchase, Sale and Delivery of the Securities; Closing.
(a) On the basis of the representations and warranties herein contained, and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each of you, and each of you severally and not jointly agrees to purchase
from the Company, at a purchase price of $18.05 per share, the number of Initial
Securities set forth opposite your name on Schedule B.
(b) In addition, upon written notice from CSFB to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Initial Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased from the Company for the account of each Underwriter in the same
proportion as the number of Initial Securities set forth in Schedule B opposite
the name of such Underwriter bears to the total number of Initial Securities,
subject in each case to such adjustments as the Underwriters in their discretion
shall make to eliminate any sales or purchases of fractional shares and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Initial Securities. No Optional
Securities shall be sold or delivered unless the Initial Securities previously
have been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may to the extent not previously
exercised be surrendered and terminated at any time upon notice by CSFB to the
Company. Each time for the delivery of and payment for the Optional Securities,
being herein referred to as a "Date of Delivery", which may be the Closing Time,
shall be determined by CSFB but shall be not later than five full business days
after written notice of election to purchase Optional Securities is given.
(c) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of Fried, Frank,
Harris, Shriver & Jacobson LLP, 1 New York Plaza, New York, New York 10004, or
at such other place as shall be agreed upon by the Underwriters and the Company,
at 9:00 A.M., New York time, on December 12, 2005 or at such other time not more
than ten full business days thereafter as the Underwriters and the Company
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shall determine (such date and time of payment and delivery being herein called
the "Closing Time"). Certificates for the Initial Securities and the Optional
Securities, if any, shall be in such denominations and registered in such names
as CSFB, representing the Underwriters, may request in writing at least two
business days before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Optional
Securities, if any, will be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the last business day prior to the
Closing Time. In addition, in the event that any or all of the Optional
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Optional Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Underwriters and the Company, on each Date of Delivery as specified in the
notice from CSFB, representing the Underwriters, to the Company.
(d) At the Closing Time, in connection with payment for the Initial
Securities, payment shall be made to an account, or accounts, designated by the
Company in the aggregate amount of $234,650,000 in immediately available funds
payable to the order of the Company against delivery to CSFB, representing the
Underwriters, for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized CSFB, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial Securities and the
Optional Securities, if any, which it has agreed to purchase. Each of CSFB and
UBS, individually and not as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Initial
Securities or the Optional Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
Section 3. Certain Covenants of the Company. The Company covenants
with you as follows:
(a) The Company will promptly notify CSFB, representing the
Underwriters, (i) of the effectiveness of any post-effective amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of the Prospectus or any amendment to the Registration Statement or
amendment or supplement to the Prospectus or any document to be filed pursuant
to the 1934 Act during any period when the Prospectus is required to be
delivered under the 1933 Act, (iii) of the receipt of any comments or inquiries
from the Commission relating to the Registration Statement or Prospectus, (iv)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceeding
for that purpose, and (vi) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or the
exemption from qualification of the Securities under state securities or Blue
Sky laws or the initiation of any proceedings for that purpose. The Company will
use its best effort to prevent the issuance by the Commission of any stop order
and, if any such stop order is issued, to obtain the lifting thereof at the
earliest possible moment. The Company will provide the Underwriters with copies
of the form of Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission such Prospectus in
accordance with Rule 424(b) of the 1933 Act Regulations by the
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close of business in New York on the second business day immediately succeeding
the date hereof.
(b) At any time when a Prospectus is required to be delivered under
the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations
in connection with sales of the Securities, the Company will give CSFB,
representing the Underwriters, notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b))
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective, to the Prospectus,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations), will furnish the Underwriters with copies
of any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such amendment
or supplement or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall reasonably object, unless in the judgment of the
Company and its counsel, and after notification to you, such amendment or
supplement is required by law.
(c) The Company has furnished or will deliver to you, without
charge, a signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith and documents
incorporated or deemed to be incorporated by reference therein) and as many
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including documents incorporated or deemed to be incorporated
by reference therein but without exhibits filed therewith), as you may
reasonably request.
(d) The Company will furnish to you, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or supplemented)
as you may reasonably request.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If, at any time when a Prospectus is required
to be delivered under the 1933 Act in connection with sales of the Securities,
any event shall occur or condition exist as a result of which it is necessary,
in the opinion of your counsel or counsel for the Company, to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading or if, in
the opinion of your counsel or counsel for the Company, it is necessary to amend
or supplement the Prospectus to comply with applicable law, the Company, at its
own expense, will promptly prepare such amendment or supplement as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances existing at the time it is delivered
to a purchaser, be misleading or so that such Prospectus as so amended or
supplemented will comply with applicable law, as the case may be, and furnish
you such number of copies as you may reasonably request. The Company will not
file any amendment or supplement without first providing the Underwriters with
such amendment or supplement and having obtained the Underwriters' consent to
the filing, which consent shall not be unreasonably withheld unless in the
judgment of the Company and its counsel, and after notification to you, such
amendment or supplement is required by law. Neither the Underwriters consent to,
nor the
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delivery of such amendment or supplement, shall constitute a waiver of any of
the conditions in Section 6 hereof.
(f) The Company will endeavor, in cooperation with you, to qualify
the Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate and to maintain such
qualifications in effect for a period of not less than a year from the date of
the Prospectus; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. The Company will file
such statements and reports as may be required by the laws of each jurisdiction
in which the Securities have been qualified as above provided. The Company will
also supply you with such information as is necessary for the determination of
the legality of the Securities for investment under the laws of such
jurisdictions as you may request.
(g) The Company will make generally available to its security
holders no later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering the twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use its best efforts in cooperation with you
to permit the Securities offered and sold in transactions by you to be eligible
for clearance and settlement through The Depository Trust Company.
(i) The Company will apply the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under the
heading "Use of Proceeds."
(j) Prior to the Closing Time, the Company will not issue any press
release or other communications directly or indirectly or hold any press
conference with respect to the Company, the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company, without
your prior consent, which shall not be unreasonably withheld, unless in the
judgment of the Company and its counsel, and after notification to you, such
press release or communication is required by law.
(k) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(l) Except as contemplated by this Agreement with respect to the
sale of the Securities, for a period of 90 days from the date of the Prospectus,
the Company will not, without the prior written consent of CSFB and UBS,
directly or indirectly, offer, pledge, sell, grant any option, right or warrant
for the sale of or otherwise dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the
foregoing or Common Stock of the Company.
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(m) The Company represents and agrees that it has not made and will
not make any offer relating to the Securities that would constitute an issuer
free writing prospectus, as defined in Rule 433 of the 1933 Act, other than as
listed on Schedule A, without the prior consent of CSFB. Any such free writing
prospectus consented to by CSFB is hereinafter referred to as a "Permitted Free
Writing Prospectus." The Company represents that it will treat each Permitted
Free Writing Prospectus as an "issuer free writing prospectus," as defined in
Rule 433, and has complied and will comply with the applicable requirements of
Rule 433 of the 1933 Act, including timely Commission filing where required,
legending and record keeping.
Section 4. Certain Covenants of the Underwriters. Each of the
Underwriters covenants severally and not jointly with the Company as follows:
(a) The Underwriters covenant with the Company that the
Underwriters will not use, authorize the use of, refer to, or participate in the
planning for the use of, an "free writing prospectus", as defined in Rule 405
under the 1933 Act which term includes use of any written information furnished
to the Commission by the Company and not incorporated by reference into the
Registration Statement other than (i) any Issuer Free Writing Prospectus
identified on Schedule A or (ii) any Underwriter Free Writing Prospectus
approved by the Company in advance in writing.
Section 5. Payment of Expenses. Whether or not any sale of the
Securities is consummated, the Company will pay and bear all costs and expenses
incident to the performance of its obligations under this Agreement, including
(a) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (b) the preparation, reproduction and distribution of the
Securities and this Agreement, (c) the delivery of the certificates for the
Securities to the Underwriters, (d) the fees and disbursements of the Company's
counsel and accountants, (e) the qualification of the Securities under the
applicable securities laws in accordance with Section 3(f) and any filing for
review of the offering with NASD, including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any "blue sky" or legal investment memoranda,
(f) the delivery to the Underwriters of copies of the Registration Statement as
originally filed and the printing and delivery of each amendment thereto, of
each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto, (g) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (h)
the fees and expenses of any transfer agent or registrar for the Securities, (i)
the fees and expenses incurred in connection with the listing of the Securities
on Nasdaq and (j) one-half of the plane or private jet expenses of the
Underwriters and the Company's officers and employees in connection with
attending or hosting meetings with prospective purchasers of the offered
Securities.
If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 6, the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the fees and disbursements of
counsel for the Underwriters.
Section 6. Conditions of Underwriters' Obligations. The obligations
of each Underwriter to purchase and pay for the Securities that it has severally
agreed to purchase hereunder are subject to the accuracy of the representations
and warranties of the Company
- 14 -
contained herein and in certificates of any officer of the Company and any
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder, and to the following further
conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, shall remain effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, each of you shall have received a signed
opinion of each of Shearman & Sterling LLP, counsel for the Company, and Edmund
Moriarty, General Counsel of the Company, in each case dated as of the Closing
Time, in a form reasonably acceptable to the Underwriters. Such opinions shall
be to such further effect with respect to other legal matters relating to this
Agreement and the sale of the Securities pursuant to this Agreement as counsel
for the Underwriters may reasonably request. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon opinions of other
counsel, who shall be counsel satisfactory to counsel for the Underwriters, in
which case the opinion shall state that they believe you are entitled to so
rely. Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and the Subsidiaries and certificates of public
officials; provided that such certificates have been delivered to the
Underwriters.
(c) At the Closing Time, each of you shall have received the
favorable opinion of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for
the Underwriters, dated as of the Closing Time, to the effect that the opinions
delivered pursuant to Sections 6(a) and 6(b) appear on their face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company, the Securities, this
Agreement, the Prospectus and such other related matters as you may require. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to you. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Subsidiaries and certificates of public officials; provided that
such certificates have been delivered to the Underwriters.
(d) At the Closing Time, (i) the Registration Statement, as it may
then be amended or supplemented, shall 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 and the Prospectus, and
any amendments and supplements thereto, shall not include
- 15 -
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (ii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) except as disclosed in the Prospectus, no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, shall be pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary that could reasonably be expected to result in any material adverse
change in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, (iv) the Company shall have in all material respects complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, (v) neither the Company nor any
Subsidiary shall be in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to which any of
its properties may be subject, except for such defaults that would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as enterprise, (vi) with the exception of the representations and
warranties in Section 1(a) covered by (i), (ii) (iii) and (v) above, the other
representations and warranties of the Company set forth herein shall be accurate
in all material respects as though expressly made at and as of the Closing Time
and (vii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or, to the knowledge of such officer, threatened by the Commission. At
the Closing Time, each of you shall have received a certificate of the Chief
Executive Officer and the Chief Financial Officer of the Company, dated as of
the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the Company,
each of you shall have received from Deloitte & Touche LLP, independent auditors
for the Company, a letter, dated such a date, in form and substance satisfactory
to you.
(f) At the Closing Time, each of you shall have received from
Deloitte & Touche LLP a letter, in form and substance satisfactory to you and
dated as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to Section 6(e), except that the specified
date referred to shall be a date not more than three days prior to the Closing
Time.
(g) On or prior to the date of this Agreement, the Underwriters
shall have received lock-up agreements substantially in the form attached hereto
as Exhibit B (with other carve-outs agreed to prior to the date hereof) from
each of the executive officers and directors of the Company listed on Schedule B
hereto.
(h) At the Closing Time, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Securities as contemplated
- 16 -
in this Agreement and the matters referred to in Section 6(e) and in order to
evidence the accuracy and completeness of any of the representations, warranties
or statements of the Company, the performance of any of the covenants of the
Company, or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company at or prior to the Closing Time in connection
with the authorization, issuance and sale of the Securities as contemplated in
this Agreement shall be reasonably satisfactory in form and substance to the
Underwriters and to counsel for the Underwriters.
(i) In the event the Underwriters exercise the option granted to
them in Section 2 hereof to purchase all or any portion of the Optional
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company hereunder shall
be true and correct as of each Date of Delivery, and subject to the following
further conditions:
(i) On each Date of Delivery, each of you shall have
received the signed opinion of each of Shearman &
Sterling LLP, counsel for the Company, and Edmund
Moriarty, General Counsel of the Company, in
substantially the form delivered at the Closing Time, in
each case dated such Date of Delivery, relating to the
Optional Securities and otherwise to the same effect as
the opinion required by Section 6(b) hereof.
(ii) On each Date of Delivery, each of you shall have
received the favorable opinion of Fried, Frank, Harris,
Shriver & Jacobson LLP, dated such Date of Delivery,
relating to the Optional Securities and otherwise to the
same effect as the opinion required by Section 6(d)
hereof.
(iii) On each Date of Delivery, each of you shall have
received a certificate of the Chief Executive Officer
and the Chief Financial Officer of the Company, dated
such Date of Delivery, confirming that the certificate
delivered at Closing Time pursuant to Section 6(e)
hereof remains true and correct as of such Date of
Delivery.
(iv) On each Date of Delivery, each of you shall have
received a letter from Deloitte & Touche LLP, in form
and substance satisfactory to the Underwriters, dated
such Date of Delivery, substantially the same in scope
and substance as the letter furnished to the
Underwriters pursuant to Section 6(g) hereof, except
that the specified date in the letter furnished pursuant
to this subsection shall be a date not more than three
business days prior to such Date of Delivery.
(j) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and the Subsidiaries taken as
one enterprise which, in the judgment of a majority in interest of the
Underwriters, is material and adverse and makes it impractical or inadvisable to
proceed with completion of the offering or the sale of and payment for the
Securities; (ii) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating
- 17 -
organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any announcement that
the Company has been placed on negative outlook; (iii) any change in U.S. or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the judgment of a majority in interest
of the Underwriters, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on the
Nasdaq National Market or any setting of minimum prices for trading on such
exchange; (v) or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (vi) any banking moratorium
declared by U.S. Federal or New York authorities; (vii) any major disruption of
settlements of securities or clearance services in the United States or (viii)
any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or
sale of and payment for the Securities.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 5. Notwithstanding any such
termination, the provisions of Sections 1 (insofar as Section 8 provides for the
survival of such representations or warranties), 7 and 8 shall remain in effect.
Section 7. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, its affiliates, partners,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter, its
affiliate, partner, director and officer and any person controlling such
Underwriter may become subject, under the 1933 Act or the 1934 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package or the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus supplement, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, including any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 3(a) of this
Agreement, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from
- 18 -
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through CSFB
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the 1933 Act or the 1934 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package
and the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through CSFB specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by the any Underwriter consists of the following information in the
Preliminary Prospectus furnished on behalf of each Underwriter: under the
caption "Underwriting," the fourth paragraph, the twelfth paragraph and the last
paragraph; provided however, that the Underwriters shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 3(a) of this
Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a) or (b) above
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any indemnified party
shall
- 19 -
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed in
writing to the contrary; (ii) the indemnifying party has failed within a
reasonable time after receiving notice of the commencement of the action to
retain counsel reasonably satisfactory to the indemnified party; (iii) the
indemnified party shall have reasonably concluded (based upon advice of counsel
to the indemnified party) that there may be legal defenses available to it that
are different from or in addition to those available to the indemnifying party;
or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would (based upon advice of
counsel to the indemnified party) be inappropriate due to a conflict or
potential conflict between them. It is understood and agreed that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for any Underwriter, its affiliates, directors
and officers and any control persons of such Underwriter shall be designated in
writing by CSFB and any such separate firm for the Company, its directors and
officers and any control persons of the Company shall be designated in writing
by the Company. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault, culpability
or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total discounts and commissions received by the
Underwriters from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
- 20 -
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities purchased by it were resold exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of the Company under this section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act or the 1934 Act; and the
obligations of the Underwriters under this section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act.
Section 8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 9 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
3 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 or the occurrence of any
event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(k),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
Section 9. Default. If one or more of the Underwriters shall fail
at the Closing Time to purchase the Securities that it or they are obligated to
purchase (the "Defaulted Securities"), the non-defaulting Underwriters shall
have the right, within 24 hours thereafter, to make arrangements to purchase
all, but not less than all, of the Defaulted Securities upon the terms herein
set forth; if, however, such non-defaulting Underwriters have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased, the non-defaulting Underwriters shall be obligated to purchase the
full amount thereof, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be purchased,
this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters.
- 21 -
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Prospectus or in any other documents or
arrangements. As used herein, the term "Initial Purchaser" includes any person
substituted for an Underwriter under this Section 8.
Section 10. Acknowledgment. The Company also acknowledges and agrees
that (i) the purchase and sale of any Securities pursuant to this Agreement,
including the determination of the public offering price of the Securities and
any related discounts and commissions, is an arm's-length commercial transaction
between the Company, on the one hand, and the several Underwriters of such
Securities, on the other hand, (ii) in connection with the public offering of
the Securities contemplated hereby and the process leading thereto each
Underwriter will act solely as a principal and not as agent or fiduciary of the
Company or its stockholders, creditors, employees or any other party, (iii) no
Underwriter will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offering of Securities contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or
is currently advising the Company on other matters) and no Underwriter will have
any obligation to the Company with respect to the offering of the Securities
except the obligations expressly set forth herein, (iv) any Underwriters and
their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and (v) the Underwriters
have not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to the offering of the Securities and the Company has
consulted and will consult its own legal, accounting, regulatory and tax
advisors to the extent it deems appropriate.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered,
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters at Credit Suisse First Boston
LLC, Eleven Madison Avenue, New York, NY 10010, Attention: Craig Oxman with
copies to Fried, Frank, Harris, Shriver & Jacobson LLP at 1 New York Plaza, New
York, New York 10004, Attention: Valerie Ford Jacob; and notices to the Company
shall be directed to it at 1400 Corporate Center Way, Wellington, Florida 33414,
Attention: Mr. Thomas P. McCaffrey, Corporate Senior Vice President of
Administration and Chief Financial Officer with copies to Shearman & Sterling
LLP at 599 Lexington Avenue, New York, New York 10022, Attention: Mr. Rohan S.
Weerasinghe.
Section 12. Parties. This Agreement is made solely for the benefit
of the Underwriters, the Company and, to the extent expressed, any person who
controls the Company or any Underwriter within the meaning of Section 15 of the
1933 Act, and the directors of the Company, its officers and their respective
executors, administrators, successors and assigns and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
successors and assigns shall not include any purchaser, as such purchaser, from
the Underwriters of the Securities.
- 22 -
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New York. Specified times of the day refer
to New York City time.
Section 14. Waiver of Jury Trial. Each of the Underwriters and the
Company (on its behalf and, to the extent permitted by applicable law, on behalf
of its stockholders and affiliates) waives all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement.
Section 15. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
- 23 -
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
BE AEROSPACE, INC.
By: /s/ Thomas P. McCaffrey
-----------------------
Name: Thomas P. McCaffrey
Title: Senior Vice President of
Administration and Chief
Financial Officer
- 24 -
Confirmed and accepted as of
the date first above written:
Credit Suisse First Boston LLC
UBS Securities LLC
Friedman, Billings, Ramsey & Co., Inc.
Stephens Inc.
SG Cowen & Co., LLC
CIBC World Markets Corp.
D.A. Davidson & Co. Inc.
Jefferies & Company, Inc.
By: Credit Suisse First Boston LLC
By /s/ Joseph D. Fashano
---------------------
Name: Joseph D. Fashano
Title: Director
- 25 -
- --------------------------------------------------------------------------------
BE AEROSPACE, INC.
(a Delaware corporation)
13,000,000 Shares
Common Stock
(par value $0.01)
UNDERWRITING AGREEMENT
----------------------
Dated: December 6, 2005
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SCHEDULE A-1
Issuer Free Writing Prospectus
- ------------------------------
Electronic Net Roadshow
SCHEDULE A-2
Information
- -----------
Offering Price: $19.00 per share
Underwriting Discount and Commissions: $0.95 per share
Settlement Date: December 12, 2005
SCHEDULE B
- ---------------------------------------------------------------------------------------------------------------------
Number of Number of
Underwriters Initial Securities to be Optional Securities to
Purchased be Purchased(1)
- ---------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston LLC................................. 5,431,400 814,710
UBS Securities LLC............................................. 5,431,400 814,710
Friedman, Billings, Ramsey & Co., Inc.......................... 624,000 93,600
Stephens Inc................................................... 624,000 93,600
SG Cowen & Co., LLC.......................................... 499,200 74,880
CIBC World Markets Corp...................................... 130,000 19,500
D.A. Davidson & Co. Inc...................................... 130,000 19,500
Jefferies & Company, Inc...................................... 130,000 19,500
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Total......................................................... 13,000,000 1,950,000
- ---------------------------------------------------------------------------------------------------------------------
_________________________________
(1) If maximum option is exercised
SCHEDULE C
Amin J. Khoury
Robert J. Khoury
Thomas P. McCaffrey
Jim C. Cowart
Richard G. Hamermesh
David C. Hurley
Wesley W. Marple, Jr.
Brian H. Rowe
Jonathan M. Schoefield
EXHIBIT A
LIST OF SUBSIDIARIES
BE Aerospace International Ltd., a company incorporated under the laws of
Barbados
BE Aerospace (UK) Holdings Limited, a company incorporated under the Companies
Act (England and Wales)
BE Aerospace (UK) Limited, a company incorporated under the laws of Northern
Ireland
BE Aerospace (Services) Limited, a company incorporated under the Companies Act
(England and Wales)
BE Aerospace (USA), LLC., a Delaware limited liability company
BE Aerospace Netherlands B.V., a company incorporated under the laws of the
Netherlands
Royal Inventum, B.V., a company incorporated under the laws of
the Netherlands
Nordskog Industries, Inc., a California Corporation
Acurex LLC, a Delaware limited liability company
BE Aerospace (France) S.A.R.L., a company incorporated under the laws of France
Burns Aerospace (France) S.A.R.L., a company incorporated under the laws of
France
Aerospace Lighting Corporation, a New York corporation
Flight Structures, Inc., a Washington corporation
BE Intellectual Property, Inc., a Delaware corporation
BE Aerospace Services, LLC, a Delaware limited liability company
BE Aerospace Australia, Inc., a Delaware corporation
BE Aerospace Canada, Inc., a Delaware corporation
B/E Aerospace (Canada) Company, a Canadian corporation
BE Aerospace El Salvador, Inc., a Delaware corporation
BE Aerospace El Salvador, Sociedad Anonima de Capital Variable, an El
Salvadorian corporation
B/E Aerospace Machined Products, Inc., a Delaware corporation
T.L. Windust Machine, LLC, a California limited liability company
DMGI, LLC, a California limited liability company
Maynard Precision, LLC, a California limited liability company
Modoc Engineering Corporation, a California corporation
Advanced Thermal Sciences Corporation, a Delaware corporation
ATS Japan Corporation, a Japanese Kabushiki Kaisha
Advanced Thermal Sciences Taiwan Corporation, a Taiwanese Corporation
Denton Jet Interiors, LLC, a Texas limited liability company
Modern Metals, LLC, a California limited liability company
Nelson Aero Space, LLC, a California limited liability company
M&M Aerospace Hardware, Inc., a Florida corporation
M&M Aerospace Hardware SARL, a French SARL
M&M Aerospace Hardware GmbH, a German company
M&M Aerospace Hardware LTD, a UK company
Bomhoff Acquisition, Inc., a Delaware corporation
B/E Aerospace Development Corporation, a Delaware corporation
IFE Sales, LLC, a Delaware limited liability corporation
Composite Specialities, Inc., a California corporation
C. M. P. SAS, a French societe par actions simplifiee
Advanced Thermal Sciences Shanghai Corporation, a Chinese corporation.
Advanced Thermal Sciences Korea, a Korean company
M&M Aerospace Hardware Ptc Ltd., a Singapore company
BE Aerospace (Germany) GmbH, a German company
EXHIBIT B
FORM OF LOCK-UP AGREEMENT
December __, 2005
Credit Suisse First Boston LLC
UBS Securities LLC
Friedman, Billings, Ramsey & Co., Inc.
Stephens Inc.
SG Cowen & Co., LLC
CIBC World Markets Corp.
D.A. Davidson & Co. Inc.
Jefferies & Company, Inc.
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010
Ladies and Gentlemen:
The undersigned is a director or officer of BE Aerospace, Inc. (the
"Company"). The undersigned understands that the Company has filed a
registration statement on Form S-3 (Reg. No. 333-112493) with the Securities and
Exchange Commission covering, among other transactions, the sale of up to
14,950,000 shares (the "Securities") of the Company's Common Stock, par value
$0.01 per share (the "Common Stock"), including shares subject to over-allotment
options, to the Underwriters (the "Underwriters") named in the Underwriting
Agreement (the "Underwriting Agreement"). The Underwriters propose to offer such
Shares to the public (the "Offerings").
This letter is being delivered pursuant to Section 6(h) of the
Underwriting Agreement. All capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Underwriting Agreement.
To induce the Underwriters to participate in the Offerings, the
undersigned represents and warrants to, and agrees with, each of the
Underwriters and the Company that during the period beginning from the date
hereof and until 90 days after the date of the Prospectus, the undersigned will
not offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such aforementioned
transaction is to be settled by delivery of the Shares of Common Stock or such
other securities, in cash or otherwise, or publicly disclose the intention to
make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of CSFB and UBS.
In addition, the undersigned agrees that, without the prior written consent of
CSFB and UBS, it will not, during the same period, make any demand for or
exercise any right with respect to, the registration of the Securities or any
security convertible into or exercisable or exchangeable for the Securities.
If:
(1) during the last 17 days of the Initial Lock-Up Period,
the Company issues an earnings release or material news or a material
event relating to the Company occurs; or
(2) prior to the expiration of the Initial Lock-Up Period,
the Company announces that it will release earnings results or becomes
aware that material news or a material event will occur during the
16-day period beginning on the last day of the Initial Lock-Up Period,
the restrictions imposed by this letter shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event, as applicable,
unless CSFB and UBS waive, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of
any extension of the Initial Lock-Up Period pursuant to the previous paragraph
will be delivered by CSFB and UBS to the Company (in accordance with Section 10
of the Purchase Agreement) and that any such notice properly delivered will be
deemed to have been given to, and received by, the undersigned. The undersigned
further agrees that, prior to engaging in any transaction or taking any other
action that is subject to the terms of this lock-up agreement during the period
from the date of this lock-up agreement to and including the 34th day following
the expiration of the Initial Lock-Up Period, it will give notice thereof to the
Company and will not consummate such transaction or take any such action unless
it has received written confirmation from the Company that the lock-up period
(as may have been extended pursuant to the previous paragraph) has expired.
Any share of Common Stock received upon exercise of options granted
to the undersigned will also be subject to this lock-up agreement (the
"Agreement"). Any share of Common Stock acquired by the undersigned in the open
market will not be subject to this Agreement. A transfer of shares of Common
Stock to a family member or trust may be made, provided the transferee agrees to
be bound in writing by the terms of this Agreement prior to such transfer.
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer of shares of
Common Stock if such transfer would constitute a violation or breach of this
Agreement.
The undersigned has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
The undersigned understands that the Company and the Underwriters
are relying upon this Agreement in proceeding toward consummation of the
Offering. The undersigned further understands that this Agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors, and assigns.
Very truly yours,
_________________________
[Name]