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:
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(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
- 10 -
<PAGE>
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
