52,083,334 Shares SPIRIT AEROSYSTEMS HOLDINGS, INC. Class A Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
52,083,334 Shares
Class A Common Stock
November [ ], 2006
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
As Representatives of the Several Underwriters,
Dear Sirs:
1. Introductory. Spirit AeroSystems Holdings, Inc., a Delaware corporation (“Company”),
proposes to issue and sell 10,416,667 shares of its Class A Common Stock, par value $0.01 per share
(“Securities”) and the Stockholders listed in Schedule A hereto (“Selling Stockholders”) propose
severally to sell an aggregate of 41,666,667 outstanding shares of the Securities (such shares of
Securities being hereinafter referred to as the “Firm Securities”). The Selling Stockholders also
propose to issue and sell to the Underwriters, at the option of the Underwriters, an aggregate of
not more than 7,812,500 additional shares (“Optional Securities”) of their Securities as set forth
below. The Firm Securities and the Optional Securities are herein collectively called the “Offered
Securities”. As part of the offering contemplated by this Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated (the “Designated Underwriter”) has agreed to reserve out of the Firm Securities
purchased by it under this Agreement, up to 2,604,167 shares, for sale to the Company’s directors,
officers and employees in the United States and other parties associated with the Company
(collectively, “Participants”), as set forth in the Prospectus (as defined herein) under the
heading “Underwriting” (the “Directed Share Program”). The Firm Securities to be sold by the
Designated Underwriter pursuant to the Directed Share Program (the “Directed Shares”) will be sold
by the Designated Underwriter pursuant to this Agreement at the public offering price. Any Directed
Shares not subscribed for by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the Prospectus. The Company and
the Selling Stockholders hereby agree with the several Underwriters named in Schedule B hereto
(“Underwriters”) as follows:
2. Representations and Warranties of the Company and the Selling Stockholders. (a) The
Company represents and warrants to, and agrees with, the several Underwriters that:
(i) A registration statement (No. 333-135486) (“initial registration statement”)
relating to the Offered Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission (“Commission”) and an additional registration statement
(“additional registration statement”) relating to the Offered Securities may have been or
may be filed with the Commission pursuant to Rule 462(b) (“Rule 462(b)”) under the
Securities Act of 1933 (“Act”). “Initial Registration Statement” as of any time means the
initial registration statement, in the form then filed with the Commission, including all
information contained in the additional registration statement (if any) and then deemed to
be a part of the initial registration statement pursuant to the General Instructions of the
Form on which it is filed and all information (if any) included in a prospectus then deemed
to be a part of the initial registration statement pursuant to Rule 430C (“Rule 430C”)
under the Act or retroactively deemed to be a part of the initial registration statement
pursuant to Rule 430A(b) (“Rule 430A(b)”) under the Act and that in any case has not then
been superseded or modified. “Additional Registration Statement” as of any time means the
additional registration statement, in the form then filed with the Commission, including
the contents of the Initial Registration Statement incorporated by reference therein and
including all information (if any) included in a prospectus then deemed to be a part of the
additional registration statement pursuant to Rule 430C or retroactively deemed to be a
part of the additional registration statement pursuant to Rule 430A(b) and that in any case
has not then been superseded or modified. The Initial Registration Statement and the
Additional Registration Statement are herein referred to collectively as the “Registration
Statements” and individually as a “Registration Statement”. “Registration Statement” as of
any time means the Initial Registration Statement and any Additional Registration Statement
as of such time. For purposes of the foregoing definitions, information contained in a
form of prospectus that is deemed retroactively to be a part of a Registration Statement
pursuant to Rule 430A shall be considered to be included in such Registration Statement as
of the time specified in Rule 430A. As of the time of execution and delivery of this
Agreement, the Initial Registration Statement has been declared effective under the Act and
is not proposed to be amended. Any Additional Registration Statement has or will become
effective upon filing with the Commission pursuant to Rule 462(b) and is not proposed to be
amended. The Offered Securities all have been or will be duly registered under the Act
pursuant to the Initial Registration Statement and, if applicable, the Additional
Registration Statement. For purposes of this Agreement, “Effective Time” with respect to
the
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Initial Registration Statement or, if filed prior to the execution and delivery of
this Agreement, the Additional Registration Statement means the date and time as of which
such Registration Statement was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) (“Rule 462(c)”) under the Act. If an
Additional Registration Statement has not been filed prior to the execution and delivery of
this Agreement but the Company has advised the Representatives that it proposes to file
one, “Effective Time” with respect to such Additional Registration Statement means the date
and time as of which such Registration Statement is filed and becomes effective pursuant to
Rule 462(b). “Effective Date” with respect to the Initial Registration Statement or the
Additional Registration Statement (if any) means the date of the Effective Time thereof. A
“Registration Statement” without reference to a time means such Registration Statement as
of its Effective Time. “Statutory Prospectus” as of any time means the prospectus included
in a Registration Statement immediately prior to that time, including any information in a
prospectus deemed to be a part thereof pursuant to Rule 430A or 430C that has not been
superseded or modified. For purposes of the preceding sentence, information contained in a
form of prospectus that is deemed retroactively to be a part of a Registration Statement
pursuant to Rule 430A shall be considered to be included in the Statutory Prospectus as of
the actual time that form of prospectus is filed with the Commission pursuant to Rule
424(b) (“Rule 424(b)”) under the Act. “Prospectus” means the Statutory Prospectus that
discloses the public offering price and other final terms of the Offered Securities and
otherwise satisfies Section 10(a) of the Act. “Issuer Free Writing Prospectus” means any
“issuer free writing prospectus,” as defined in Rule 433 under the Act, relating to the
Offered Securities in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g)
under the Act. “General Use Issuer Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors, as evidenced
by its being specified in a schedule to this Agreement. “Limited Use Issuer
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use
Issuer Free Writing Prospectus. “Applicable Time” means :00 [a/p]m
(Eastern time) on the date of this Agreement.
(ii) (A) On the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission (“Rules and Regulations”) and did not
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not misleading
and (C) on the date of this Agreement, the Initial Registration
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Statement and, if the Effective Time of the Additional Registration Statement is prior
to the execution and delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional Registration Statement in
which the Prospectus is included, each Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein (with respect to the Prospectus, in the
light of the circumstances under which they are made) not misleading. The preceding
sentence does not apply to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section 8(c) hereof.
(iii) (A) At the time of initial filing of the Initial Registration Statement and (B)
at the date of this Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, including (1) the Company or any other subsidiary in the
preceding three years not having been convicted of a felony or misdemeanor or having been
made the subject of a judicial or administrative decree or order as described in Rule 405
and (2) the Company in the preceding three years not having been the subject of a
bankruptcy petition or insolvency or similar proceeding, not having had a registration
statement be the subject of a proceeding under Section 8 of the Act and not being the
subject of a proceeding under Section 8A of the Act in connection with the offering of the
Offered Securities, all as described in Rule 405.
(iv) As of the Applicable Time, neither (A) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, the preliminary prospectus, dated
___, 2006 (which is the most recent Statutory Prospectus distributed to
investors generally) [and the documents attached to this Agreement], all considered
together (collectively, the “General Disclosure Package”), nor (B) any individual Limited
Use Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted 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. The preceding sentence does not apply to
statements in or omissions from any prospectus included in the Registration Statement or
any Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 8(c)
hereof.
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(v) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Securities or
until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus but no later than the latest of (i) the Closing Date, (ii) the completion of the
distribution of the Offered Securities or (iii) the termination of the Representatives’
prospectus delivery obligation pursuant to Section 4(3) of the Act, there occurred or
occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information then contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time, not misleading, (i) the
Company has promptly notified or will promptly notify the Representatives and (ii) the
Company has promptly amended or supplemented or will promptly amend or supplement such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission. The foregoing two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8(c) hereof.
(vi) The Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the General Disclosure Package; and
the Company is duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except for any jurisdiction where the failure to be
so qualified would not, individually or in the aggregate, have a material adverse effect on
the condition (financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
(vii) Each subsidiary of the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its incorporation, with
corporate or other entity power and authority to own its properties and conduct its
business as described in the General Disclosure Package; and each subsidiary of the Company
is duly qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification, except for any such jurisdiction where the failure to be so
qualified would not have a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized and
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validly issued and is fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects (other than transfer restrictions imposed under applicable
securities laws).
(viii) The Offered Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital stock of the Company
are, and, when the Offered Securities have been delivered and paid for in accordance with
this Agreement on each Closing Date (as defined below), such Offered Securities will have
been, validly issued, fully paid and nonassessable, will be consistent in all material
respects with the information in the General Disclosure Package and will conform in all
material respects to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the Securities.
(ix) Except as disclosed in the General Disclosure Package, 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 this offering.
(x) Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person or to require the Company
to include such securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other registration
statement filed by the Company under the Act that have not been complied with or waived in
writing.
(xi) The Offered Securities have been approved for listing on The New York Stock
Exchange.
(xii) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required to be obtained or made by the Company
for the consummation of the transactions contemplated by this Agreement in connection with
the issuance and sale of the Offered Securities by the Company, except such as have been
obtained and made under the Act and the Securities Exchange Act of 1934 (the “Exchange
Act”) and such as may be required under state securities laws.
(xiii) The execution, delivery and performance of this Agreement, and the issuance and
sale of the Offered Securities as herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under, (a) any
statute, any rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the
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Company or any subsidiary of the Company, (b) any of their properties, or any
agreement or instrument to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or (c) the charter or by-laws of the Company or
any such subsidiary, except, in the case of clauses (a) and (b) above, as would not have a
Material Adverse Effect, and the Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by this Agreement.
(xiv) This Agreement has been duly authorized, executed and delivered by the Company.
(xv) Except as disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all real properties and all other properties
and assets owned by them, in each case free from liens, encumbrances and defects that would
affect the value thereof or interfere with the use made or to be made thereof by them,
except in each case as would not, individually or in the aggregate, have a Material Adverse
Effect; and except as disclosed in the General Disclosure Package, the Company and its
subsidiaries hold any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to be made thereof
by them, except in each case as would not, individually or in the aggregate, have a
Material Adverse Effect.
(xvi) The Company and its subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(xvii) No labor dispute with the employees of the Company or any subsidiary exists or,
to the knowledge of the Company, is imminent that would have a Material Adverse Effect.
(xviii) The Company and its subsidiaries own, possess or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property or licenses to use the
same (collectively, “intellectual property rights”) necessary to conduct the business now
operated by them, or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
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(xix) Except as disclosed in the General Disclosure Package, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and the Company is
not aware of any pending investigation which might lead to such a claim.
(xx) Except as disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or affecting the Company, any of its subsidiaries or
any of their respective properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of the sale of the
Offered Securities; and, to the Company’s knowledge, no such actions, suits or proceedings
are threatened or contemplated.
(xxi) The financial statements of the Company and its consolidated subsidiaries,
together with the related notes, included in each Registration Statement and the General
Disclosure Package present fairly, in all material respects, the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in the United
States applied on a consistent basis; the schedule included in each Registration Statement
presents fairly, in all material respects, the information required to be stated therein;
and the assumptions used in preparing the pro forma financial statements included in each
Registration Statement and the General Disclosure Package provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(xxii) The financial statements of the Wichita division (the “Division”) of the Boeing
Commercial Airplanes Operating Segment of The Boeing Company, together with the related
notes, included in each Registration Statement and the General Disclosure Package present
fairly, in all material respects, the assets and liabilities of the Division as of the
dates shown and its cost center activity for the periods shown, and such financial
statements have been prepared in conformity
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with the generally accepted accounting principles in the United States applied on a
consistent basis.
(xxiii) Except as disclosed in the General Disclosure Package, since the date of the
latest audited financial statements included in the General Disclosure Package there has
been no material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the General Disclosure Package, there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class of its
capital stock.
(xxiv) The Company and each of its subsidiaries makes and keeps accurate books and
records and maintains a system of internal accounting controls sufficient to provide
reasonable assurance 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 the generally accepted accounting
principles in the United States and to maintain accountability for assets; (c) access to
assets is permitted only in accordance with management’s general or specific authorization;
and (d) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(xxv) The Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as described in the General
Disclosure Package, will not be an “investment company” as defined in the Investment
Company Act of 1940.
(xxvi) None of the Directed Shares have been or will be offered outside the United
States.
(xxvii) The Company has not offered, or caused the Underwriters to offer, any Offered
Securities to any person pursuant to the Directed Share Program with the specific intent to
unlawfully influence (a) a customer or supplier of the Company to alter the customer’s or
supplier’s level or type of business with the Company or (b) a trade journalist or
publication to write or publish favorable information about the Company or its products or
services.
(b) Each Selling Stockholder severally represents and warrants to, and agrees with, the
several Underwriters that:
(i) Such Selling Stockholder, if it is not a natural person, is validly existing and,
to the extent such concept exists in the relevant jurisdiction, in good standing under the
laws of the jurisdiction of its organization.
(ii) Such Selling Stockholder has, and on any Closing Date will have, full legal
right, power and authority, and all authorization and approval required by
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law, to enter into (a) this Agreement and (b) the Custody Agreement (the “Custody
Agreement”) signed by such Selling Stockholder and the Company, as Custodian (the
“Custodian”), relating to the deposit of the Offered Securities to be sold by such Selling
Stockholder and the Power of Attorney (“Power of Attorney”) appointing certain individuals
as such Selling Stockholders’ attorneys-in-fact (“Attorneys-in-Fact”) to the extent set
forth therein and relating to the transactions contemplated hereby; provided that clause
(b) shall not apply to any Selling Stockholder that is a partnership, company or other
entity directly or indirectly controlled or owned by Onex Corporation (each such entity, an
“Onex Entity” and each such Selling Stockholder an “Onex Selling Stockholder”); and to
sell, assign, transfer and deliver the Offered Securities to be sold by such Selling
Stockholder in the manner provided herein and therein.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf
of such Selling Stockholder.
(iv) The Custody Agreement and the Power of Attorney of such Selling Stockholder,
other than any Onex Selling Stockholder, have been duly authorized, executed and delivered
by such Selling Stockholder and are valid and binding agreements of such Selling
Stockholder, enforceable in accordance with their terms.
(v) The execution and delivery by such Selling Stockholder, and the performance by
such Selling Stockholder of its obligations under, this Agreement will not contravene any
provision of applicable law or the organizational documents of such Selling Stockholder or
any agreement or other instrument binding upon such Selling Stockholder or any of its
assets or any judgment, order or decree of any governmental body, agency or court having
jurisdiction over such Selling Stockholder or any of its assets, except where such
contravention would not individually or in the aggregate materially adversely affect the
ability of such Selling Stockholder to consummate the transactions contemplated hereby, and
no consent, approval, authorization, or order of, or filing with, any governmental agency
or body or any court is required to be obtained or made by such Selling Stockholder for the
performance by such Selling Stockholder of its obligations under this Agreement, except (A)
such as have been obtained or made, (B) such as may be required under state securities laws
or the rules of the National Association of Securities Dealers, Inc. (the “NASD”) and (C)
such as may be required by the securities laws of any jurisdiction outside the United
States of America.
(vi) Such Selling Stockholder has and on each Closing Date hereinafter mentioned will
have valid and unencumbered title to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered Securities to be delivered
by such Selling Stockholder on such Closing Date hereunder; and upon the delivery of and
payment for the Offered Securities on each Closing Date hereunder the several Underwriters
will acquire
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valid and unencumbered title to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date, free and clear of all liens, encumbrances, equities or
adverse claims.
(vii) (A) On the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the requirements of the Act
and the Rules and Regulations and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will conform, in all material
respects to the requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional Registration Statement
is prior to the execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each Registration Statement and
the Prospectus will conform, in all material respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein (with respect to
the Prospectus, in the light of the circumstances under which they are made) not
misleading. As of the Applicable Time, neither the General Disclosure Package nor any
individual Limited Use Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement or a material fact or omitted 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. The two preceding sentences
apply only to the extent that any statements in or omissions from a Registration Statement,
the Prospectus, the General Disclosure Package or any Limited Use Free Writing Prospectus
are based on written information furnished to the Company by such Selling Stockholder
specifically for use therein. For all purposes in this Agreement such information is
limited to the information set forth under the captions “Summary,” “Principal and Selling
Stockholders” (consisting of the name and address, number of shares and related footnotes
to the table contained in such section) and “Certain Relationships and Related Party
Transactions” insofar as such information relates to such Selling Stockholder and is based
on written information furnished to the Company by such Selling Stockholder specifically
for use in the Registration Statement, the Prospectus, the General Disclosure or any
Limited Use Free Writing Prospectus (such Selling Stockholder’s “Selling Stockholder
Information”).
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(viii) All of such Selling Stockholder’s Selling Stockholder Information contained in
any Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Offered Securities or until any
earlier date that the Selling Stockholders notified or notify the Company and the
Representatives as described in the next sentence, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information then
contained in the Registration Statement. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Selling Stockholder Information conflicted or would conflict with the
information then contained in the Registration Statement or included or would include an
untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, such Selling Stockholder has promptly
notified or will promptly notify the Company and the Representatives and will provide the
Company with all necessary information so as to correct such untrue statement or omission.
(ix) If such Selling Stockholder is an officer or director of the Company named under
the caption “Management–Executive Officers and Directors” in the Prospectus, such Selling
Stockholder is not prompted by any information concerning the Company or its subsidiaries
which is not set forth in the Prospectus to sell its Securities pursuant to this Agreement.
(x) There are no material agreements or arrangements relating to the Company or its
subsidiaries to which such Selling Stockholder, or, to such Selling Stockholder’s
knowledge, any direct or indirect stockholder that is an affiliate of such Selling
Stockholder, is a party, which are required to be described in the Registration Statements
or the Prospectus or to be filed as exhibits thereto that are not so described or filed.
(xi) Except as disclosed in the Prospectus, there are no contracts, agreements or
understandings between such Selling Stockholder and any person that would give rise to a
valid claim against such Selling Stockholder or any Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with this offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company and
each Selling Stockholder agree, severally and not jointly, to sell to the several Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the Company and each
Selling Stockholder, at a purchase price of $ per share, that number of Firm Securities
(rounded up or down, as determined by the Representatives in their discretion, in order to avoid
fractions) obtained by multiplying 10,416,667 Firm Securities in the case of the Company and the
number of Firm Securities set forth opposite the name of such Selling Stockholder in Schedule A
hereto, in the case of a Selling Stockholder, in each case by a fraction the
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numerator of which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total number of Firm
Securities.
Certificates in negotiable form for the Offered Securities to be sold by the Selling
Stockholders hereunder have been placed in custody, for delivery under this Agreement, under the
Custody Agreements. Each Selling Stockholder agrees that the shares represented by the
certificates held in custody for the Selling Stockholders under such Custody Agreements are subject
to the interests of the Underwriters hereunder, that the arrangements made by the Selling
Stockholders for such custody are to that extent irrevocable, and that the obligations of the
Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in the case of a trust,
by the death of any trustee or trustees or the termination of such trust. If any individual
Selling Stockholder or any such trustee or trustees should die, or if any other such event should
occur, or if any of such trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the Custodian shall have received notice
of such death or other event or termination. This paragraph shall not apply to the Onex Selling
Stockholders or to Offered Securities owned by any Onex Selling Stockholders.
The Company, the Onex Selling Stockholders and the Custodian will deliver the Firm Securities
to or as instructed by the Representatives for the accounts of the several Underwriters in a form
reasonably acceptable to the Representatives against payment of the purchase price by the
Underwriters in Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Representatives drawn to the order of
in the case of shares of Firm Securities and in the case of shares of
Firm Securities, at the office of Cravath, Swaine & ▇▇▇▇▇ LLP, at 9:00 A.M., New York time, on
, 2006, or at such other time not later than seven full business days thereafter as
the Representatives and the Company determine, such time being herein referred to as the “First
Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act , the First Closing Date (if
later than the otherwise applicable settlement date) shall be the settlement date for payment of
funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The
Firm Securities so to be delivered or evidence of their issuance will be made available for
checking at the office of Cravath, Swaine & ▇▇▇▇▇ LLP at least 24 hours prior to the First Closing
Date.
In addition, upon written notice from the Representatives given to the Company and the Selling
Stockholders 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 Firm Securities. The Selling Stockholders agree, severally and not
jointly, to sell to the Underwriters the respective numbers of Optional Securities obtained by
multiplying the number of Optional Securities specified in such notice by a fraction the numerator
of which is the
13
number of shares set forth opposite the names of such Selling Stockholders in Schedule A
hereto under the caption “Number of Optional Securities to be Sold” and the denominator of which is
the total number of Optional Securities (subject to adjustment by the Representatives to eliminate
fractions) and the Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased from each Selling Stockholder for the
account of each Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter’s name bears to the total number of Firm Securities (subject to
adjustment by the Representatives to eliminate fractions) and may be purchased by the Underwriters
only for the purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice by the
Representatives to the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not later than five full business days and not
sooner than one full business day after written notice of election to purchase Optional Securities
is given. The Onex Selling Stockholders and the Custodian will deliver the Optional Securities
being purchased on each Optional Closing Date to or as instructed by the Representatives for the
accounts of the several Underwriters in a form reasonably acceptable to the Representatives against
payment of the purchase price therefor in Federal (same day) funds by official bank check or checks
or wire transfer to an account at a bank acceptable to the Representatives drawn to the order of
in the case of Optional Securities and in the
case of Optional Securities, at the office of Cravath, Swaine & ▇▇▇▇▇ LLP. The Optional
Securities being purchased on each Optional Closing Date or evidence of their issuance will be made
available for checking at the office of Cravath, Swaine & ▇▇▇▇▇ LLP at a reasonable time in advance
of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The Company agrees with
the several Underwriters and the Selling Stockholders that:
(a) The Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to by the
Representatives, subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement or (B) the
fifteenth business day after the Effective Date of the Initial Registration Statement. The
Company will advise the Representatives promptly of any such filing pursuant to Rule
424(b). If an additional registration statement
14
is necessary to register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of the execution and delivery of this Agreement,
the Company will file the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have been consented to by
the Representatives.
(b) The Company will advise the Representatives promptly of any proposal to amend or
supplement at any time the Initial Registration Statement, any Additional Registration
Statement or any Statutory Prospectus and will not effect such amendment or supplementation
without the consent of the Representatives; and the Company will also advise the
Representatives promptly of the effectiveness of any Additional Registration Statement (if
its Effective Time is subsequent to the execution and delivery of this Agreement) and of
any amendment or supplementation of a Registration Statement or any Statutory Prospectus
and of the institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its reasonable best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but
for the exemption in Rule 172 would be required to be) delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the Company will
promptly notify the Representatives of such event and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7.
(d) As soon as practicable, but not later than the Availability Date (as defined
below), the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, “Availability Date” means the 45th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the Company’s
fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal
quarter.
15
(e) The Company will furnish to the Representatives copies of each Registration
Statement (four of which will be signed and will include all exhibits), each related
preliminary prospectus, and, so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such documents, in each case
in such quantities as the Representatives reasonably request. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day following the
execution and delivery of this Agreement. All other documents shall be so furnished as soon
as available. The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives may reasonably designate and
will continue such qualifications in effect so long as required for the distribution;
provided, however, that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the Offered Securities)
or to subject itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject.
(g) The Company and each Selling Stockholder agree with the several Underwriters that
the Company and such Selling Stockholder will pay all expenses incident to the performance
of the obligations of the Company and such Selling Stockholder, as the case may be, under
this Agreement and for any transfer taxes on the sale by such Selling Stockholder of the
Offered Securities to the Underwriters; the Company will pay for any travel expenses of the
Company’s or any Selling Stockholder’s officers and employees and any other expenses of the
Company or any Selling Stockholder in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, including the cost of any aircraft
chartered in connection with attending or hosting such meetings, for any filing fees and
other expenses (including reasonable fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Representatives reasonably designate and the printing of memoranda
relating thereto, for the filing fee incident to the review by the NASD of the Offered
Securities, for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the Underwriters and for
expenses incurred for preparing, printing and distributing any Issuer Free Writing
Prospectuses to investors or prospective investors. Nothing in this paragraph 5(g) amends
or otherwise alters any existing agreement between the Company and the Selling Stockholders
with respect to responsibilities for expenses in connection with the Offered Securities.
16
(h) For the period specified below (the “Lock-Up Period”), the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or
file with the Commission a registration statement under the Act relating to, any additional
shares of its Securities or securities convertible into or exchangeable or exercisable for
any shares of its Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of the
Representatives, except issuances of Securities pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or options, in each case
outstanding on the date hereof, grants of stock pursuant to the terms of a plan on file as
an exhibit to the Registration Statement on the date hereof or issuances of up to
shares of Securities pursuant to the Company’s Union Equity Participation Program in March
2007. The initial Lock-Up Period will commence on the date hereof and will continue and
include the date 180 days after the date hereof or such earlier date that the
Representatives consent to in writing; provided, however, that if (1) during the last 17
days of the initial Lock-Up Period, the Company releases earnings results 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 during
the 16-day period beginning on the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the occurrence of the material
news or material event, as applicable, unless the Representatives waive, in writing, such
extension. The Company will provide the Representatives with notice of any announcement
described in clause (2) of the preceding sentence that gives rise to an extension of the
Lock-Up Period.
(i) Each Selling Stockholder agrees during the Lock-Up Period not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or securities convertible into or exchangeable or
exercisable for any shares of Securities, 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 Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any such
offer, sale, pledge or disposition, or enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent of the Representatives.
The initial Lock-Up Period will commence on the date hereof and will continue and include
the date 180 days after the date hereof or such earlier date that the Representatives
consent to in writing; provided, however, that if (1) during the last 17 days of the
initial Lock-Up Period, the Company releases earnings results 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 during the
16-day period beginning on the last day of the initial Lock-Up Period, then in each case
the Lock-Up Period will be extended until the expiration of the 18-day period
17
beginning on the date of release of the earnings results or the occurrence of the
material news or material event, as applicable, unless the Representatives waive, in
writing, such extension.
This paragraph (i) shall not apply to (i) in the case of an Onex Selling Stockholder,
Securities acquired in the open market or in the Directed Share Program, any Securities
sold in the Offering pursuant to this Agreement and transfers or distributions of
Securities between or among an Onex Entity and another Onex Entity, provided the transferee
agrees to be bound in writing by the terms of this Section 5(i) prior to such transfer and
no filing by any party (transferor or transferee) under the Exchange Act shall be required
or shall be voluntarily made in connection with such transfer (other than a filing
(including amendments) pursuant to Section 13(d) or 13(g) of the Exchange Act or a filing
on Form 3, 4 or 5 under the Exchange Act); and (ii) in the case of a Selling Stockholder
that is not an Onex Selling Stockholder, Securities acquired in the open market or in the
Directed Share Program, any Securities sold in the Offering pursuant to this Section 5(i),
and transfers of Securities to a family member or a trust or any affiliate or to the
Company by a Selling Stockholder upon termination of employment with the Company, provided
the transferee agrees to be bound in writing by the terms of this Agreement prior to such
transfer and no filing by any party (donor, donee, transferor or transferee) under the
Exchange Act shall be required or shall be voluntarily made in connection with such
transfer (other than a filing (including amendments) pursuant to Section 13(d) or 13(g) of
the Exchange Act or a filing on Form 3, 4 or 5 under the Exchange Act).
(j) In connection with the Directed Share Program, the Company will ensure that the
Directed Shares will be restricted to the extent required by the NASD or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of 90 days following
the date of the effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Participants will need to be so restricted. The Company
will direct the transfer agent to place stop transfer restrictions upon such securities for
such period of time.
(k) The Company will pay all reasonable fees and disbursements of counsel incurred by
the Underwriters in connection with the Directed Share Program and stamp duties, similar
taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the
prior consent of the Representatives, and each Underwriter and Selling Stockholder represents and
agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Offered Securities that would constitute an Issuer
Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,”
as defined in Rule 405, required to be filed with the Commission. Any such free
writing prospectus consented to by the Company and the Representatives is hereinafter referred to
as a “Permitted Free
18
Writing Prospectus.” The Company represents that it has treated and agrees 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 requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission filing where
required, legending and record keeping. The Company represents that it has satisfied and agrees
that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission
any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their obligations hereunder and to the
following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date of delivery
thereof (which shall be on or prior to the date of this Agreement), of
PricewaterhouseCoopers LLC confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) in their opinion the financial statements and schedules examined by them
and included in the Registration Statements and the General Disclosure Package
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in Statement of Auditing Standards No. 100, Interim Financial
Information, on the unaudited financial statements as of and for the nine-month
period ended September 28, 2006 included in the Registration Statements and the
General Disclosure Package;
(iii) on the basis of the review referred to in clause (ii) above, a reading
of the latest available interim financial statements of the Company, inquiries of
officials of the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements as of and for the nine-month
period ended September 28, 2006 included in the Registration Statements or
the General Disclosure Package do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published
19
Rules and Regulations or any material modifications should be made to
such unaudited financial statements for them to be in conformity with the
generally accepted accounting principles in the United States;
(B) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than three
business days prior to the date of this Agreement, there was any change in
the capital stock or any increase in short-term indebtedness or long-term
debt of the Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants, there was any
decrease in consolidated net current assets or net assets, as compared
with amounts shown on the latest balance sheet included in the General
Disclosure Package; or
(C) for the period from the closing date of the latest income
statement included in the General Disclosure Package to the closing date
of the latest available income statement read by such accountants there
were any decreases, as compared with the period of corresponding length
ended the date of the latest income statement included in the Prospectus,
in consolidated net sales, net operating income, or in the total or per
share amounts of consolidated net income ,
except in all cases set forth in clauses (B) and (C) above for changes, increases
or decreases which are described in such letter;
(iv) they have compared specified dollar amounts (or percentages derived from
such dollar amounts) and other financial information contained in the Registration
Statements, each Issuer Free Writing Prospectus (other than any Issuer Free Writing
Prospectus that is an “electronic road show,” as defined in Rule 433(h)) and the
General Disclosure Package (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal controls of the
Company’s accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to be in agreement
with such results, except as otherwise specified in such letter.
(v) they have read the unaudited pro forma consolidated balance sheet as of
September 28, 2006, and the unaudited pro forma condensed statements of operations
for the period from January 1, 2005 through June 16, 2005, the period from June 17,
2005 through December 29, 2005
20
and the nine-month period ended September 28, 2006, all included in the
General Disclosure Package and in connection therewith:
(A) they have inquired of certain officials of the Company who have
responsibility for financial and accounting matters as to:
(I) the basis for their determination of the pro forma
adjustments; and
(II) whether the unaudited pro forma condensed consolidated
financial statements comply as to form in all material respects
with the applicable requirements of Rule 11-02 of Regulation S-X;
and
(B) they have proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the unaudited pro
forma condensed financial statements; and
(vi) On the basis of the review referred to in clause (v) above, nothing came
to their attention that caused them to believe that the unaudited pro forma
financial statements referred to therein included in the General Disclosure Package
do not comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of those
statements.
For purposes of this subsection, if the Effective Time of the Additional Registration
Statement is subsequent to the execution and delivery of this Agreement, “Registration
Statements” shall mean the Initial Registration Statement and the Additional Registration
Statement as proposed to be filed shortly prior to its Effective Time, and “Prospectus”
shall mean the prospectus included in the Registration Statements.
(b) The Representatives shall have received a letter, dated the date of delivery
thereof (which shall be on or prior to the date of this Agreement), of Deloitte and Touche
LLP confirming that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements examined by them and included in
the Registration Statements and the General Disclosure Package comply as to form in
all material respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations; and
(ii) they have compared specified dollar amounts (or percentages derived from
such dollar amounts) and other financial information contained in the Registration
Statements, each Issuer Free Writing
21
Prospectus (other than any Issuer Free Writing Prospectus that is an
“electronic road show” as defined in Rule 433(h)) and the General Disclosure
Package (in each case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records of the
Division and its subsidiaries subject to the internal controls of the Division’s
accounting system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to be in agreement
with such results, except as otherwise specified in such letter.
For purposes of this subsection, if the Effective Time of the Additional Registration
Statement is subsequent to the execution and delivery of this Agreement, “Registration
Statements” shall mean the Initial Registration Statement and the Additional Registration
Statement as proposed to be filed shortly prior to its Effective Time, and “Prospectus”
shall mean the prospectus included in the Registration Statements.
(c) If the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall
have occurred at such later date as shall have been consented to by the Representatives.
The Prospectus shall have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Representatives, shall be contemplated by the Commission.
(d) 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 its subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the 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,
22
political or economic conditions or currency exchange rates or exchange controls as
would, in the judgment of a majority in interest of the Underwriters including the
Representatives, be likely to prejudice materially the success of the proposed issue, sale
or distribution of the Offered 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 New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; (v) 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 including the
Representatives, 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 the sale of and payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated such Closing Date, of
▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company and the Selling Stockholders substantially in the
form of Exhibit A hereto.
(f) The Representatives shall have received an opinion and letter, dated the Closing
Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company substantially in the form of
Exhibit B hereto.
(g) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel
for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to
the incorporation of the Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the Company shall have
furnished to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(h) The Representatives shall have received a certificate, dated such Closing Date, of
the President or any Vice President and a principal financial or accounting officer of the
Company in which such officers shall state that: to the best of their knowledge after
reasonable investigation, the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of
23
Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable
filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the Applicable
Time; and, subsequent to the dates of the most recent financial statements in the General
Disclosure Package, there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its subsidiaries taken as
a whole except as set forth in the General Disclosure Package or as described in such
certificate.
(i) The Representatives shall have received a letter, dated such Closing Date, of
PricewaterhouseCoopers LLC which meets the requirements of subsection (a) of this Section,
except that the specified date referred to in such subsection will be a date not more than
three days prior to such Closing Date for the purposes of this subsection.
(j) The Representatives shall have received a letter, dated such Closing Date, of
Deloitte and Touche LLP which meets the requirements of subsection (b) of this Section,
except that the specified date referred to in such Subsection will be a date not more than
three days prior to such Closing Date for the purposes of this subsection.
(k) On or prior to the date of this Agreement, the Representatives shall have received
lockup letters from each of the executive officers and directors of the Company who are not
Selling Stockholders.
(l) The Custodian will deliver to the Representatives a letter stating that they will
deliver to each Selling Stockholder, other than the Onex Selling Stockholders, a United
States Treasury Department Form 1099 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof) on or before January 31
of the year following the date of this Agreement.
(m) To avoid a 28% backup withholding tax each Selling Stockholder will deliver to the
Representatives a properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury Department regulations in
lieu thereof).
The Selling Stockholders and the Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
8. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers, affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities,
24
joint or several, to which such Underwriter may become subject, under the 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 any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the
Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, 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 not 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 any of such documents in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
subsection (c) below.
The Company agrees to indemnify and hold harmless the Designated Underwriter and its
affiliates and each person, if any, who controls the Designated Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act (the “Designated
Entities”), from and against any losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the consent of the
Company for distribution to Participants in connection with the Directed Share Program or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the failure of any
Participant to pay for and accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program,
other than, in each case, losses, claims, damages or liabilities (or expenses relating thereto)
that are finally judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(b) Each Selling Stockholder severally and not jointly, will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers, affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the 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 any part of any Registration
Statement at any time, any Statutory Prospectus as of any time, the Prospectus or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue
25
statement or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with such Selling Stockholder’s Selling Stockholder Information, 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 Selling Stockholders will not 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
any of such documents in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided further, however, that the
aggregate liability of each such Selling Stockholder pursuant to this subsection (b) and subsection
(e) below shall not exceed the amount of proceeds (after deducting underwriting discounts and
commissions) each such Selling Stockholder receives from the sale of the Offered Securities.
(c) 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 Act or Section 20 of the Exchange Act, and each Selling Stockholder against any
losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become
subject, under the 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 any part of any Registration Statement at any time, any
Statutory Prospectus as of any time, the Prospectus, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein 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 the Representatives specifically
for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company
and each Selling Stockholder 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 any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: on the front cover page, each Underwriter’s
name, solely with respect to such Underwriter, the concession and reallowance figures appearing in
the fifth paragraph under the caption “Underwriting” and the information contained in the
thirteenth, fourteenth and fifteenth paragraphs under the caption “Underwriting”.
(d) 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), (b) or (c) 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
26
under subsection (a), (b) or (c) 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), (b) or (c) 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 reasonably 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. Notwithstanding
anything contained herein to the contrary, if indemnity may be sought pursuant to the last
paragraph in Section 8 (a) hereof in respect of such action or proceeding, then in addition to such
separate firm for the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to any local counsel)
for the Designated Underwriter for the defense of any losses, claims, damages and liabilities
arising out of the Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act.
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 a failure to act by or on behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is unavailable or insufficient to hold
harmless an indemnified party under subsection (a), (b) or (c) 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), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders 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 and the Selling Stockholders 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 and the Selling Stockholders 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 and the
Selling Stockholders bear to the
27
total underwriting discounts and commissions received by the Underwriters. 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, the Selling Stockholders 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 (e)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection (e), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the public 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. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint. The obligations of each Selling Stockholder in
this subsection (e) are several and not joint and the aggregate liability of each such Selling
Stockholder pursuant to this subsection (e) and subsection (b) above shall not exceed the amount of
proceeds (after deducting underwriting discounts and commissions) each such Selling Stockholder
shall receive from the sale of the Offered Securities.
(f) The obligations of the Company and the Selling Stockholders under this Section shall be in
addition to any liability which the Company and the Selling Stockholders 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 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 director of the Company, to each
officer of the Company who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
28
purchase on such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total number of shares of Offered Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to the Representatives,
the Company and the Selling Stockholders for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter, the Company or the Selling Stockholders,
except as provided in Section 10 (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As used in this
Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Selling Stockholders, 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, any Selling Stockholder, the Company
or any of their respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Offered Securities. If this Agreement is terminated
pursuant to Section 9 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall remain responsible
for the expenses to be paid or reimbursed by them pursuant to Section 5 and the respective
obligations of the Company, the Selling Stockholders and the Underwriters pursuant to Section 8
shall remain in effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5 shall also remain
in effect. If the purchase of the Offered 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 7(d), 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
Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or facsimiled and confirmed to the Representatives, c/o Credit Suisse
Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, and
c/o Goldman, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Registration
Department, and c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇: General Counsel, or, if sent to the Company, will be mailed, delivered or facsimiled
and confirmed to it at Spirit AeroSystems Holdings, Inc. , ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or, if sent to the Selling Stockholders or any of them, will be mailed,
delivered or facsimiled and confirmed to each of them at its respective
29
address set forth on Schedule A hereto; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or facsimiled and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective personal representatives and successors and the officers and directors
and controlling persons referred to in Section 8, and no other person will have any right or
obligation hereunder.
13. Representation. The Representatives will act for the several Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this Agreement taken by
the Representatives jointly will be binding upon all the Underwriters. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will act for
the Selling Stockholders (other than the Onex Selling Stockholders) in connection with such
transactions, and any action under or in respect of this Agreement taken by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will be
binding upon all the Selling Stockholders (other than the Onex Selling Stockholders). ▇▇▇▇▇ ▇▇▇▇▇▇
will act for the Onex Selling Stockholders in connection with such transactions, and any action
under or in respect of this Agreement taken by ▇▇▇▇▇ ▇▇▇▇▇▇ will be binding upon all the Onex
Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
15. Absence of Fiduciary Relationship. The Company and the Selling Stockholders acknowledge
and agree that:
(a) The Representatives have been retained solely to act as underwriters in connection
with the sale of Offered Securities and that no fiduciary, advisory or agency relationship
between the Company or the Selling Stockholders, on the one hand, and the Representatives,
on the other, has been created in respect of any of the transactions contemplated by this
Agreement or the Prospectus, irrespective of whether the Representatives have advised or
are advising the Company or the Selling Stockholders on other matters;
(b) the price of the Offered Securities set forth in this Agreement was established by
the Company and the Selling Stockholders following discussions and arms-length negotiations
with the Representatives and the Company and the Selling Stockholders are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of
the transactions contemplated by this Agreement;
(c) the Company and the Selling Stockholders have been advised that the
Representatives and their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company or the Selling Stockholders and
that the Representatives have no obligation to disclose such interests and transactions to
the Company or the Selling Stockholders by virtue of any fiduciary, advisory or agency
relationship; and
30
(d) the Company and the Selling Stockholders waive, to the fullest extent permitted by
law, any claims they may have against the Representatives for breach of fiduciary duty or
alleged breach of fiduciary duty in connection with the transactions contemplated by this
Agreement and agree that the Representatives shall have no liability (whether direct or
indirect) to the Company or the Selling Stockholders in respect of such a fiduciary duty
claim or to any person asserting such a fiduciary duty claim on behalf of or in right of
the Company or the Selling Stockholders, including stockholders, employees or creditors of
the Company or the Selling Stockholders.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to principles of conflicts of laws.
The Company and the Selling Stockholders hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
31
If the foregoing is in accordance with the Representatives’ understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will
become a binding agreement among the Selling Stockholders, the Company and the several Underwriters
in accordance with its terms.
Very truly yours,
| SPIRIT AEROSYSTEMS HOLDINGS, INC. | ||
| By | ||
| [Insert title] | ||
| [Insert name of Selling Stockholder] | ||
| By | ||
| [Insert title] | ||
| [Repeat as needed for each Selling Stockholder] |
32
The
foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first
above written. |
||||
Acting on
behalf of themselves and as the Representatives of the several
Underwriters |
By Credit Suisse Securities (USA) LLC
|
||
By |
||
[Insert title] |
||
By ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
||
By |
||
[Insert title] |
||
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
||
By |
||
[Insert title] |
33
SCHEDULE
A
| Address for | Number of Firm | Number of Optional | ||||||||||
| Selling Stockholder | Notices | Securities to be Sold | Securities to be Sold | |||||||||
| [to be completed based on prospectus] | ||||||||||||
Total |
||||||||||||
SCHEDULE B
| Number of | ||||
| Underwriter | Firm Securities | |||
Credit Suisse Securities (USA) LLC |
||||
▇▇▇▇▇▇▇, Sachs & Co. |
||||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
||||
Banc of America Securities LLC |
||||
Citigroup Global Markets Inc. |
||||
▇▇▇▇▇ and Company, LLC |
||||
Deutsche Bank Securities Inc. |
||||
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corp. as Agent Affiliate of GMP Securities ▇.▇. |
||||
▇▇▇▇▇▇▇▇▇ & Company, Inc. |
||||
▇▇▇▇▇▇ Brothers Inc. |
||||
▇▇▇▇▇▇▇ ▇▇▇▇▇, Pierce, Fenner, & ▇▇▇▇▇ Incorporated |
||||
RBC Capital Markets Corporation |
||||
Scotia Capital (USA) Inc. |
||||
UBS Securities LLC |
||||
Westwind Partners (USA) Inc. |
||||
Total |
52,083,334 | |||