2,000,000 Shares
TriStar Aerospace Co.
Common Stock
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
_______________, 1998
BT Alex. ▇▇▇▇▇ International,
a division of Bankers Trust International PLC
SBC Warburg Dillon Read Inc.
As Lead Managers of the
Several International Managers
c/o BT Alex. ▇▇▇▇▇ International, a division of
Bankers Trust International PLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Gentlemen:
Certain stockholders (the "Selling Stockholders") of TriStar Aerospace
Co., a Delaware corporation (the "Company"), propose to sell to the several
international managers (the "International Managers") named in Schedule I
hereto for whom you are acting as lead managers (the "Lead Managers") an
aggregate of 2,000,000 shares of the Company's Common Stock, $0.01 par value
(the "Firm Shares"). The respective amounts of the Firm Shares to be so
purchased by the several International Managers are set forth opposite their
names in Schedule I hereto and the respective amounts to be sold by the
Selling Stockholders are set forth opposite their names in Schedule II
hereto. Certain of the Selling Stockholders also propose to sell at the
International Managers' option an aggregate of up to ____________ additional
shares of the Company's Common Stock (the "Option Shares") as set forth below
in the respective amounts set forth opposite such Selling Stockholder's name
on Schedule III hereto.
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As the Lead Managers, you have advised the Company and the Selling
Stockholders (a) that you are authorized to enter into this Agreement on
behalf of the several International Managers, and (b) that the several
International Managers are willing, acting severally and not jointly, to
purchase the numbers of Firm Shares set forth opposite their respective names
in Schedule I, plus their pro rata portion of the Option Shares if you elect
to exercise the over-allotment option in whole or in part for the accounts of
the several International Managers. The Firm Shares and the Option Shares
(to the extent the aforementioned option is exercised) are herein
collectively called the "International Shares."
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement, a copy of
which is attached hereto (the "U.S. Underwriting Agreement"), providing for
the sale by the Selling Stockholders of up to a total of __________ shares of
Common Stock, including the overallotment option thereunder (together, the
"U.S. Shares"), through arrangements with certain underwriters in the United
States (the "U.S. Underwriters"), for whom BT Alex. ▇▇▇▇▇ Incorporated and
SBC Warburg Dillon Read Inc. are acting as representatives. Anything herein
or therein to the contrary notwithstanding, the respective closings under
this Agreement and the U.S. Underwriting Agreement are hereby expressly made
conditional on one another.
The Company and the Selling Stockholders also understand that the
International Managers and the U.S. Underwriters are simultaneously entering
into an Agreement between U.S. and International Underwriting Syndicates (the
"Agreement Between Syndicates") that provides, among other things, for the
transfer of shares of Common Stock between the two syndicates. Two forms of
prospectus are to be used in connection with the offering and sale of shares
of Common Stock contemplated by the foregoing, one relating to the
International Shares and the other relating to the U.S. Shares. The latter
form of prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and amendments
thereto as mentioned below. Except as the context may otherwise require,
references hereinafter to the "Shares" shall include all of the shares of
Common Stock that may be sold pursuant to either this Agreement of the U.S.
Underwriting Agreement, and references herein to any prospectus shall include
both the international and U.S. versions thereof.
In addition, this Agreement incorporates by reference certain provisions
from the U.S. Underwriting Agreement (including related definitions of terms
which are also used elsewhere herein) and, for the purposes of applying the
same, references (whether in these precise words or their equivalent) in the
incorporated provisions to "this Agreement" (meaning therein the U.S.
Underwriting Agreement) shall be to this Agreement (except where this
Agreement is already referred to or as the context may otherwise required),
and, in general, all such provisions and defined terms shall be applied
MUTATIS MUTANDIS as if the incorporated provisions were set forth in full
herein having regard to their context in this Agreement as opposed to the
U.S. Underwriting Agreement.
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In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING STOCKHOLDERS
The Company and the Selling Stockholders hereby make to the
International Managers the same respective representations and warranties as
are set forth in Section 1 of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Selling
Stockholders agree to sell to the International Managers and each
International Manager agrees, severally and not jointly, to purchase, at a
price of $_____ [net price] per share, the number of Firm Shares set forth
opposite the name of each International Manager in Schedule I hereof, subject
to adjustments in accordance with Section 9 hereof. The number of Firm
Shares to be purchased by each International Manager from each Selling
Stockholder shall be as nearly as practicable in the same proportion to the
total number of Firm Shares being sold by each Selling Stockholder as the
number of Firm Shares being purchased by each International Manager bears to
the total number of Firm Shares to be sold hereunder. The obligations of the
Company and of each of the Selling Stockholders shall be several and not
joint.
(b) Certificates in negotiable form for the total number of the Shares to
be sold hereunder by the Selling Stockholders have been placed in custody with
____________________ as custodian (the "Custodian") pursuant to the Custodian
Agreement executed by each Selling Stockholder for delivery of all Firm Shares
and any Option Shares to be sold hereunder by the Selling Stockholders. Each of
the Selling Stockholders specifically agrees that the Firm Shares and any Option
Shares represented by the certificates held in custody for the Selling
Stockholders under the Custodian Agreement are subject to the interests of the
International Managers 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 terminable by any
act or deed of the Selling Stockholders (or by any other person, firm or
corporation including the Company, the Custodian or the International Managers)
or by operation of law (including the death of an individual Selling Stockholder
or the dissolution of a corporate Selling Stockholder) or by the occurrence of
any other event or events, except as set forth in the Custodian Agreement. If
any such event should occur prior to the delivery to the International Managers
of the Firm Shares or the Option Shares hereunder, certificates for the Firm
Shares or the Option Shares, as the case may be, shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such event has not occurred.
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The Custodian is authorized to receive and acknowledge receipt of the
proceeds of sale of the Shares held by it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be made in
immediately available funds via wire transfer to the order of the Company for
any shares sold by it pursuant to Section 2(e) below and to the order of
____________, "as Custodian" for the shares to be sold by the Selling
Stockholders, in each case against delivery of certificates therefor to the
Lead Managers for the several accounts of the International Managers. Such
payment and delivery are to be made at the offices of BT Alex. ▇▇▇▇▇
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at 10:00 a.m., Baltimore
time, on the third business day after the date of this Agreement or at such
other time and date not later than five business days thereafter as you and
the Company and Odyssey Partners, L.P. ("Odyssey") shall agree upon, such
time and date being herein referred to as the "Closing Date." (As used
herein, "business day" means a day on which the New York Stock Exchange is
open for trading and on which banks in New York are open for business and not
permitted by law or executive order to be closed.) The certificates for the
Firm Shares will be delivered in such denominations and in such registrations
as the Lead Managers request in writing not later than the second full
business day prior to the Closing Date, and will be made available for
inspection by the Lead Managers at least one business day prior to the
Closing Date.
(d) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Selling Stockholders set forth on Schedule III hereto hereby grant an
option to the several International Managers to purchase the Option Shares at
the price per share as set forth in the first paragraph of this Section 2.
The maximum number of Option Shares to be sold by each Selling Stockholder is
set forth opposite their respective names on Schedule III hereto. The option
granted hereby may be exercised in whole or in part by giving written notice
(i) at any time before the Closing Date and (ii) only once thereafter within
30 days after the date of this Agreement, by you, as Lead Managers of the
several International Managers, to the Company, Odyssey and the Custodian
setting forth the number of Option Shares as to which the several
International Managers are exercising the option, the names and denominations
in which the Option Shares are to be registered and the time and date at
which such certificates are to be delivered. If the option granted hereby is
exercised in part, the respective number of Option Shares to be sold by each
of the Selling Stockholders listed in Schedule III hereto shall be determined
on a pro rata basis in accordance with the percentages set forth opposite
their names on Schedule III hereto, adjusted by you in such manner as to
avoid fractional shares. The time and date at which certificates for Option
Shares are to be delivered shall be determined by the Lead Managers but shall
not be earlier than three nor later than 10 full business days after the
exercise of such option, nor in any event prior to the Closing Date (such
time and date being herein referred to as the "Option Closing Date"). If the
date of exercise of the option is three or more days before the Closing Date,
the notice of exercise shall set the Closing Date as the Option Closing Date.
The number of Option Shares to
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be purchased by each International Manager shall be in the same proportion to
the total number of Option Shares being purchased as the number of Firm
Shares being purchased by such International Manager bears to the total
number of Firm Shares, adjusted by you in such manner as to avoid fractional
shares. The option with respect to the Option Shares granted hereunder may
be exercised only to cover over-allotments in the sale of the Firm Shares by
the International Managers. You, as Lead Managers of the several
International Managers, may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company and
Odyssey. To the extent, if any, that the option is exercised, payment for
the Option Shares shall be made on the Option Closing Date in immediately
available funds via wire transfer to the order of "_______________, AS
CUSTODIAN" for the Option Shares to be sold by the Selling Stockholders
against delivery of certificates therefor at the offices of BT Alex. ▇▇▇▇▇
International, division of Bankers Trust International PLC, One ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇.
(e) If on the Closing Date or Option Closing Date, as the case may be,
any Selling Stockholder fails to sell the Firm Shares or Option Shares which
such Selling Stockholder has agreed to sell on such date as set forth in
SCHEDULE II AND SCHEDULE III hereto, the Company agrees that it will arrange
for the sale of that number of shares of Common Stock to the International
Managers which represents Firm Shares or the Option Shares which such Selling
Stockholder has failed to so sell, as set forth in SCHEDULE II AND SCHEDULE
III hereto, or such lesser number as may be requested by the Lead Managers.
3. OFFERING BY THE INTERNATIONAL MANAGERS.
It is understood that the several International Managers are to make a
public offering of the Firm Shares as soon as the Lead Managers deem it
advisable to do so. The Firm Shares are to be initially offered to the
public at the initial public offering price set forth in the Prospectus. The
Lead Managers may from time to time thereafter change the public offering
price and other selling terms. To the extent, if at all, that any Option
Shares are purchased pursuant to Section 2 hereof, the International Managers
will offer them to the public on the foregoing terms.
It is further understood that you will act as the Lead Managers for the
International Managers in the offering and sale of the Shares in accordance
with a Master Agreement Among Underwriters (International Version) entered
into by you and the several other International Managers.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
The Company and the Selling Stockholders hereby make the same covenants
and agreements to the International Managers as are set forth in Section 4 of
the U.S. Underwriting Agreement which Section is incorporated herein by this
reference.
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5. COSTS AND EXPENSES.
The Company, the Selling Stockholders and the International Managers
hereby agree with respect to certain expenses on the same terms as are set
forth in Section 5 of the U.S. Underwriting Agreement which Section is
incorporated herein by this reference.
6. CONDITIONS OF OBLIGATIONS OF THE INTERNATIONAL MANAGERS.
Subject to the provisions of the Agreement Between Syndicates, the several
obligations of the International Managers to purchase the Firm Shares on the
Closing Date and the Option Shares, if any, on the Option Closing Date, are
subject to the accuracy, as of the Closing Date or the Option Closing Date, as
the case may be, of the representations and warranties of the Company and the
Selling Stockholders contained herein, and to the performance by the Company and
the Selling Stockholders of their convenants and obligations hereunder and to
the additional conditions set forth in Section 6 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLING STOCKHOLDERS.
The obligations of the Selling Stockholders to sell and deliver the
portion of the Shares required to be delivered as and when specified in this
Agreement are subject to the conditions that at the Closing Date or the
Option Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and in
effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
International Manager and each Selling Stockholder and each person, if any,
who controls any International Manager or any Selling Stockholder within the
meaning of the Act, against any losses, claims, damages or liabilities to
which such International Manager, Selling Stockholder or any such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, or (ii) 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 International
Manager, Selling Stockholder and each such controlling person upon demand for
any legal or other expenses reasonably incurred by such International Manager
or such controlling person in connection with investigating or defending any
such loss, claim, damage or
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liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Shares, whether or not
such International Manager or controlling person is a party to any action or
proceeding; provided, however, that the Company and 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, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Lead Managers or any
Selling Stockholder specifically for use in the preparation thereof;
provided, further, that the foregoing indemnity agreement with respect to any
Preliminary Prospectus shall not insure to the benefit of the International
Manager or any person controlling such International Manager from which the
person asserting any such loss, claim, damage or liability purchased Shares
if a copy of the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of the International Manager at or prior to written
confirmation of the sale of such Shares to such person and the Prospectus (as
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Selling Stockholder severally and not jointly will indemnify
and hold harmless the Company, each of its directors, each of its officers
who have signed the Registration Statement, each International Manager, and
each person who controls the Company or any International Manager within the
meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer, International Manager or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceeds in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) 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 the light of the circumstances under
which they were made; and will reimburse the company or any such director,
officer, International Manager or controlling person upon demand for any
legal or other expenses reasonably incurred by the Company, such director,
officer, International Manager or controlling person in connection with
investigating or defending any such loss, claim, damage or liability, action
or proceeding or in responding to any subpoena or governmental inquiry
related to the offering of the Shares, whether or not the Company, such
director, officer, International Manager or controlling person is a part to
any action or proceeding; provided, however, that each Selling Stockholder
will be liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
has been made in the Registration Statement, Preliminary Prospectus, the
Prospectus or such amendment or supplement, in reliance upon and in
conformity with written
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information furnished to the Company by such Selling Stockholder for use in
the preparation thereof; provided further, that the foregoing indemnity
agreement with respect to any Preliminary Prospectus shall not inure to the
benefit of the International Manager or any person controlling such
International Manager from which the person asserting any such loss, claim,
damage or liability purchased Shares if a copy of the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the
International Manager at or prior to written confirmation of the sale of such
Shares to such person and the Prospectus (as amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities. In no event, however, shall the liability of any Selling
Stockholder for indemnification under this Section 8(a) exceed the lesser of
(i) proceeds received by such Selling Stockholder from the International
Managers in the offering or (ii) the proportion of the total proceeds equal
to the proportion of the total shares sold by such Selling Stockholder. This
indemnity agreement will be in addition to any liability which the Company or
the Selling Stockholders may otherwise have.
(c) Each International Manager severally and not jointly will indemnify
and hold harmless the Company, each of its directors, each of its officers
who have signed the Registration Statement, the Selling Stockholders, and
each person, if any, who controls the Company or the Selling Stockholders
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, Selling
Stockholder or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or (ii) 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 the light of the
circumstances under which they were made; and will reimburse the Company or
any such director, officer, Selling Stockholder or controlling person upon
demand for any legal or other expenses reasonably incurred by the Company or
any such director, officer, Selling Stockholder or controlling person in
connection with investigating or defending any such loss, claim, damage or
liability, action or proceeding or in responding to the subpoena or
governmental inquiry related to the offering of the Shares, whether or not
the Company or any such director, officer, Selling Stockholder or controlling
person is a party to any action or proceeding; provided, however, that each
International Manager will be liable in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Lead Managers specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which such International Manager may otherwise have.
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(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing. No indemnification provided for in
Section 8(a), (b) or (c) shall be available to any party who shall fail to
give notice as provided in this Section 8(d) if the party to whom notice was
not given was unaware of the proceeding to which such notice would have
related and was materially prejudiced by the failure to give such notice, but
the failure to give such notice shall not relieve the indemnifying party or
parties from any liability which it or they may have to the indemnified party
for contribution pursuant to Section 8(d) or otherwise than on account of the
provisions of Section 8(a), (b) or (c). In case any such proceeding shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the
indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and
employ counsel acceptable to the indemnified party within a reasonable period
of time after notice of commencement of the action. It is understood that
the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm for all such indemnified
parties. Such firm shall be designated in writing by you in the case of
parties indemnified pursuant to Section 8(a) and (b) and by the Company and
the Selling Stockholders in the case of parties indemnified pursuant to
Section 8(c). The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition,
the indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party
is an actual or potential party to such claim, action or proceeding) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim, action
or proceeding.
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(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) 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 International
Managers on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnification provided for in this Section 8 is
unavailable or insufficient to the indemnified party as a result of such
indemnified party's failure to provide notice to the indemnifying party under
Section 8(d), then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
International Managers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, (or
actions or proceedings in respect thereof), 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 International Managers 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 total underwriting discounts
and commissions received by the International Managers, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Selling Stockholders on the one hand or the International
Managers on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the International Managers agree
that it would not be just and equitable if contributions pursuant to this
Section 8(e) were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 8(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (e), (i) no
International Manager shall be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Shares purchased by
such International Manager, (ii) 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
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of such fraudulent misrepresentation, and (iii) no Selling Stockholder shall
be required to contribute any amount in excess of the lesser of (A) that
proportion of the total of such losses, claims, damages or liabilities
indemnified or contributed against equal to the proportion of the total
Shares sold hereunder which is being sold by such Selling Stockholder, or (B)
the proceeds received by such Selling Stockholder from the International
Managers in the offering less the aggregate amounts theretofore paid by such
Selling Shareholder, if any, under Section 8(b) or this Section 8(e). The
International Managers' obligations in this Section 8(d) to contribute are
several in proportion to their respective underwriting obligations and not
joint.
(f) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process issuing
from such court may be served upon him or it by any other contributing party
and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. A
successor to any International Manager to any Selling Stockholder, or to the
Company, its directors or officers, or any person controlling the Company,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
9. DEFAULT BY INTERNATIONAL MANAGERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any International Manager shall fail to purchase and pay for the portion of
the Shares which such International Manager has agreed to purchase and pay
for on such date (otherwise than by reason of any default on the part of the
Company or a Selling Stockholder), you, as Lead Managers of the International
Managers, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other International Managers, or any others, to
purchase from the Company and the Selling Stockholders such amounts as may be
agreed upon and upon the terms set forth herein, the Firm Shares or Option
Shares, as the case may be, which the defaulting International Manager or
International Managers failed to purchase. If during such 36 hours you, as
such Lead Managers, shall not have procured such other International
Managers, or any others, to purchase the Firm Shares or Option Shares, as the
case may be, agreed to be purchased by the defaulting International Manager
or International Managers, then (a) if the aggregate number of shares with
respect to which such default shall occur does not exceed 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the other
International Managers shall be obligated, severally, in proportion to the
respective numbers of Firm Shares or Option Shares, as the case
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may be, which they are obligated to purchase hereunder, to purchase the Firm
Shares or Option Shares, as the case may be, which such defaulting
International Manager or International Managers failed to purchase, or (b)
if the aggregate number of shares of Firm Shares or Option Shares, as the
case may be, with respect to which such default shall occur exceeds 10% of
the Firm Shares or Option Shares, as the case may be, covered hereby, the
Company and the Selling Stockholders or you as the Lead Managers of the
International Managers will have the right, by written notice given within
the next 36-hour period to the parties to this Agreement, to terminate this
Agreement without liability on the part of the non-defaulting International
Managers or of the Company or of the Selling Stockholders except to the
extent provided in Section 8 hereof. In the event of a default by any
International Manager or International Managers, as set forth in this Section
9, the Closing Date or Option Closing Date, as the case may be, may be
postponed for such period, not exceeding seven days, as you, as Lead
Managers, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "International Manager" includes any
person substituted for a defaulting International Manager. Any action taken
under this Section 9 shall not relieve any defaulting International Manager
from liability in respect of any default of such International Manager under
this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the International Managers, to
BT Alex. ▇▇▇▇▇ International, division of Bankers Trust International PLC,
One ▇▇▇▇▇▇ Street, Broadgate, London EC2 2HE, England, Attention: ▇▇▇▇▇▇
▇▇▇▇; with a copies to BT Alex. ▇▇▇▇▇ Incorporated, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ and to BT Alex. ▇▇▇▇▇
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Attention: General
Counsel; if to the Company or the Selling Stockholders, to TriStar Aerospace
Co., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇; with a copy to Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Simeon Gold, Esq.
11. TERMINATION.
This Agreement may be terminated by you by notice to the Company as
follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the International Managers, or (ii)
11:30 a.m. on the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change or
any development involving a prospective material
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adverse change in or affecting the condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole or the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business; (ii) any outbreak
or escalation of hostilities or declaration of war or national emergency or
other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the United
States would, in your reasonable judgment, make it impracticable to market
the Shares or to enforce contracts for the sale of the Shares; (iii) trading
generally shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange, the American Stock Exchange
or the NASD; (iv) the enactment, publication, decree or other promulgation of
any statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects or may
materially and adversely affect the business or operations of the Company;
(v) declaration of a banking moratorium by United States or New York State
authorities, (vi) the suspension of trading of the Company's common stock on
the New York Stock Exchange or (vii) the taking of any action by any
governmental body or agency in respect of its monetary or fiscal affairs
which in your reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
International Managers, the Company and the Selling Stockholders and their
respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. No purchaser of any of
the Shares from any International Manager shall be deemed a successor or
assign merely because of such purchase.
13. INFORMATION PROVIDED BY INTERNATIONAL MANAGERS.
The Company, the Selling Stockholders and the International Managers
acknowledge and agree that the only information furnished or to be furnished
by any International Manager to the Company for inclusion in any Prospectus
or the Registration Statement consists of the information set forth in the
last paragraph on the front cover page (insofar as such information relates
to the International Managers), legends required by Item 502(d) of Regulation
S-K under the Act and the information under the caption "Underwriting" in the
Prospectus.
14. MISCELLANEOUS.
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The reimbursement, indemnification and contribution agreements contained
in this Agreement and the representations, warranties and covenants in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
any International Manager or controlling person thereof, or by or on behalf
of the Company or its directors or officers and (c) delivery of and payment
for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Stockholders,
the Company and the several International Managers in accordance with its
terms.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a
validly existing and binding Power of Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
TRISTAR AEROSPACE CO.
By
----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Selling Stockholders listed on Schedule II:
By
---------------------------------------------
Attorney-in-Fact
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
BT ALEX. ▇▇▇▇▇ INTERNATIONAL,
a division of Bankers Trust International PLC
SBC WARBURG DILLON READ INC.
As Lead Managers of the several
International Managers listed on Schedule I
By: BT Alex. ▇▇▇▇▇ International,
a division of Bankers Trust International PLC
By:
-----------------------------------------
Authorized Officer
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SCHEDULE I
SCHEDULE OF INTERNATIONAL MANAGERS
Number of Firm Shares
International Manager to be Purchased
--------------------- ---------------------
BT Alex. ▇▇▇▇▇ International,
a division of Bankers Trust International PLC
SBC Warburg Dillon Read Inc.
---------------
Total
---------------
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SCHEDULE II
SCHEDULE OF SELLING STOCKHOLDERS
Number of Firm Shares
Selling Stockholder to be Sold
------------------- ---------------------
Odyssey Partners, L.P.
R.P. Small Corporation
BT Investment Partners, Inc.
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Total
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SCHEDULE III
SCHEDULE OF OPTION SHARES
Maximum Number Percentage of
of Option Shares Total Number of
Name of Seller to be Sold Option Shares
--------------- ---------------- ---------------
Odyssey Partners, L.P.
R.P. Small Corporation
BT Investment Partners, Inc.
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Total
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