BLACKBOARD INC. UNDERWRITING AGREEMENT
Exhibit 1.1
June 14, 2007
CREDIT SUISSE SECURITIES (USA) LLC,
As Representative of the Several Underwriters,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
As Representative of the Several Underwriters,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
1. Introductory. Blackboard Inc., a Delaware corporation (“Company”), agrees with Credit
Suisse Securities (USA) LLC as representative (“Representative”) of the several Underwriters named
in Schedule A hereto (collectively, the “Underwriters”) to issue and sell to the several
Underwriters $150,000,000 principal amount (“Firm Securities”) of its 3.250% Convertible Senior
Notes due July 1, 2027 (“Securities”) and also proposes to issue and sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than $15,000,000 additional principal
amount (“Optional Securities”) of its Securities as set forth below, all to be issued under an
indenture, to be dated as of June 20, 2007 (“Indenture”), between the Company and U.S. Bank
National Association, as Trustee. The Firm Securities and the Optional Securities are herein
collectively called the “Offered Securities”.
2. Representations and Warranties of the Company. The Company represents and warrants to, and
agrees with, each Underwriter that:
(a) A registration statement (No. 333-143715), including a prospectus, relating to the
Registered Securities has been filed with the Securities and Exchange Commission
(“Commission”) and has become effective. “Registration Statement” as of any time means such
registration statement in the form then filed with the Commission, including any amendment
thereto, any document incorporated by reference therein and any information in a prospectus
or prospectus supplement deemed or retroactively deemed to be a part thereof pursuant to
Rule 430B (“Rule 430B”) or 430C (“Rule 430C”) under the Securities Act of 1933, as amended
(“Securities Act”) that has not been superseded or modified. “Registration Statement”
without reference to a time means the Registration Statement as of the time of the first
contract of sale for the Offered Securities, which time shall be considered the “Effective
Date” of the Registration Statement relating to the Offered Securities. For purposes of
this definition, information contained in a form of prospectus or prospectus supplement that
is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B
shall be considered to be included in the Registration Statement as of the time specified in
Rule 430B. “Statutory Prospectus” as of any time means the prospectus relating to the
Offered Securities that is included in the Registration Statement immediately prior to that
time, including any document incorporated by reference therein and any basic prospectus or
prospectus supplement deemed to be a part thereof pursuant to Rule 430B or 430C that has not
been superseded or modified. For purposes of this definition, information contained in a
form of prospectus (including a prospectus supplement) that is deemed retroactively to be a
part of the Registration Statement pursuant to Rule 430B shall be considered to be included
in the Statutory Prospectus only as of the actual time that the form of prospectus
(including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b)
(“Rule 424(b)”) under the Securities 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 Securities Act. “Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined in Rule 433 (“Rule 433”) under the
Securities 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). “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 Schedule B hereto. “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 4:30 p.m. (Eastern time) on the
date of this Agreement.
(b) (i) (A) At the time the Registration Statement initially became effective, at the
time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether by post-effective amendment, incorporated report filed pursuant to
the Securities Exchange Act of 1934, as amended (“Exchange Act”) or form of prospectus), on
the Effective Date relating to the Offered Securities, on the date of this Agreement and on
each Closing Date, the Registration Statement conformed and will conform in all material
respects to the requirements of the Securities Act, the Trust Indenture Act of 1939 (“Trust
Indenture Act”) and the rules and regulations of the Commission (“Rules and Regulations”) at
the time, and did not and will 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, and (ii) on its date, 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
Registration Statement in which the Prospectus is included, and on each Closing Date, the
Prospectus will conform in all material respects to the requirements of the Securities Act,
the Trust Indenture Act and the Rules and Regulations and will not include any 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, except that the foregoing does not apply to statements in or omissions from any
of such documents based upon written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b) hereof.
(c) (i) (A) At the time of initial filing of the Registration Statement, (B) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective
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amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (C) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer
relating to the Offered Securities in reliance on the exemption of Rule 163 under the
Securities Act, the Company was a “well known seasoned issuer” as defined in Rule 405 (“Rule
405”) under the Securities Act; the Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405.
(ii) The Company has not received from the Commission any notice pursuant to Rule
401(g)(2) (“Rule 401(g)(2)”) under the Securities Act objecting to use of the automatic
shelf registration statement form. If at any time when Offered Securities remain unsold by
the Underwriters, the Company receives from the Commission a notice pursuant to Rule
401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representative, (ii) promptly file
a new registration statement or post-effective amendment on the proper form relating to the
Offered Securities, in a form satisfactory to the Representative, (iii) use its best efforts
to cause such registration statement or post-effective amendment to be declared effective as
soon as practicable, and (iv) promptly notify the Representative of such effectiveness. The
Company will take all other action necessary or appropriate to permit the public offering
and sale of the Offered Securities to continue as contemplated in the registration statement
that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may be.
(iii) The Company has paid or shall pay the required Commission filing fees relating to
the Offered Securities within the time required by Rule 456(b)(1) under the Securities Act
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Securities Act.
(d) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Offered Securities and (ii) at the date hereof,
the Company was not and is not an “ineligible issuer,” as defined in Rule 405, including (x)
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, (y) the Company in the preceding three years not
having been the subject of a bankruptcy petition or insolvency or similar proceeding, and
(z) the Company not having had a registration statement be the subject of a proceeding under
Section 8 of the Securities Act and not being the subject of a proceeding under Section 8A
of the Securities Act in connection with the offering of the Offered Securities, all as
described in Rule 405.
(e) As of the Applicable Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, the Statutory Prospectus, and the
information set forth in Schedule C hereto, all considered together (collectively, the
“General Disclosure Package”), nor (ii) any individual Limited Use Issuer Free Writing
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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 Representative 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 7(b) hereof.
(f) 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 Representative 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 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 Representative
and (ii) the Company has promptly amended 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 Representative 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 7(b) hereof.
(g) The Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and
other) 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 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”).
(h) Each subsidiary of the Company has been duly incorporated and is an existing
corporation (or such other form of legal entity as its name and organizational documents may
indicate) in good standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to own its properties and
conduct its business as described in the General Disclosure Package,
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except where the
failure to be in good standing would not, individually or in the aggregate, have a Material
Adverse Effect; and each subsidiary of the Company is duly qualified to do business as a
foreign corporation (or such other form of legal entity as its name and organizational
documents may indicate) 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
where the failure to be so qualified would not have a Material Adverse Effect; all of the
issued and outstanding capital stock or other ownership interests of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and nonassessable; and
the capital stock or other ownership interests of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and defects.
(i) The Indenture has been duly authorized and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to this Agreement on each Closing Date, the
Indenture will have been duly executed and delivered, such Offered Securities will have been
duly executed, authenticated, issued and delivered, will be consistent with the information
in the General Disclosure Package and will conform to the description thereof contained in
the Prospectus and the Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to
general equity principles.
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) When the Offered Securities are delivered and paid for pursuant to this Agreement
on each Closing Date, such Offered Securities will be convertible into Common Stock of the
Company in accordance with the terms of the Indenture; the shares of Common Stock initially
issuable upon conversion of such Offered Securities have been duly authorized and reserved
for issuance upon such conversion and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable, are consistent with the
information in the General Disclosure Package and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no preemptive rights
with respect to the Offered Securities or the shares of Common Stock issued upon conversion.
(l) 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.
(m) Except for (i) the Third Amended and Restated Registration Rights Agreement dated
April 6, 2001 among the Company and the stockholders referred to therein, (ii) the
Registration Rights Agreement dated January 11, 2002 between the
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Company and The Xxxxxx
Xxxxxxxxxx University, or (iii) as otherwise 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 Securities 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 the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the Securities Act.
To the knowledge of the Company, none of the parties to the registration rights agreements
identified in clauses (i) and (ii) above hold registrable securities that are not eligible
for resale under Rule 144 under the Securities Act, except for Xxxxxxx Xxxxxxxxx and Xxxxxxx
Xxxxxx, who have waived their rights under such agreements.
(n) The outstanding shares of Common Stock are listed on The Nasdaq Global Select
Market.
(o) No consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required 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 Securities
Act and the Trust Indenture Act and such as may be required under state securities laws.
(p) The execution, delivery and performance of the Indenture, this Agreement and the
issuance and sale of the Offered Securities will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, (i) any statute, any rule,
regulation or order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or any of their
properties, (ii) 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 (iii) the charter or by-laws
of the Company or any such subsidiary, except, with respect to (i) and (ii) above, where
such breach, violation or default would not, individually or in the aggregate, 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.
(q) 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
materially affect the value thereof or materially interfere with the use made or to be made
thereof by them; 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.
(r) The Company and its subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to conduct in
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all material respects the business now operated by them and have not received any credible
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.
(s) No labor dispute with the employees of the Company or any subsidiary exists or, to
the knowledge of the Company, is imminent that might have a Material Adverse Effect.
(t) 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 (collectively,
“intellectual property rights”) necessary to conduct in all material respects the business
now operated by them, or presently employed by them, and have not received any credible
notice of infringement of or conflict with asserted rights of others with respect to any
intellectual property rights that the Company believes would, individually or in the
aggregate, have a Material Adverse Effect.
(u) 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.
(v) 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 the Indenture or this Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company’s knowledge, contemplated.
(w) The financial statements included or incorporated by reference in the Registration
Statement and 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 generally accepted accounting principles in
the United States applied on a consistent basis; and the schedules
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included or incorporated by reference in the Registration Statement present fairly in all material respects the
information required to be stated therein.
(x) 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.
(y) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. The Company and its subsidiaries’ internal controls over financial reporting
are effective and the Company and its subsidiaries are not aware of any material weakness in
their internal control over financial reporting.
(z) The Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective.
(aa) The Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and files reports with the Commission on the Electronic
Data Gathering, Analysis, and Retrieval (XXXXX) system.
(bb) 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.
3. Purchase and Offering of Offered Securities. On the basis of the representations, warranties
and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell
to the several Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.125% of the principal amount thereof plus accrued interest from June 20, 2007 to the
First Closing Date (as hereinafter defined), the respective principal amounts of Firm Securities
set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to or as instructed by the Representative for the
accounts of the several Underwriters in a form reasonably acceptable to the
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Representative against
payment of the purchase price by the Underwriters in Federal (same day) funds by wire transfer to
an account at a bank acceptable to the Representative at the office of Shearman & Sterling LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 a.m., New York time, on June 20, 2007, or at
such other time not later than seven full business days thereafter as the Representative 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 above office of Shearman &
Sterling LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representative given to the Company from time to
time not more than 30 days subsequent to the date of the Prospectus, the Underwriters may purchase
all or less than all of the Optional Securities at the purchase price per principal amount of
Securities to be paid for the Firm Securities (including any accrued interest thereon to the
related Optional Closing Date). Such Optional Securities shall be purchased for the account of
each Underwriter in the same proportion as the principal amount of Firm Securities set forth
opposite such Underwriter’s name bears to the total principal amount of Firm Securities (subject to
adjustment by the Representative 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
Representative to the Company.
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 Representative but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will deliver the Optional
Securities being purchased on each Optional Closing Date to or as instructed by the Representative
for the accounts of the several Underwriters in a form reasonably acceptable to the Representative
against payment of the purchase price therefore in Federal (same day) funds by wire transfer to an
account at a bank acceptable to the Representative at the above office of Shearman & Sterling LLP.
The Optional Securities being purchased on each Optional Closing Date or evidence of their issuance
will be made available for checking at the above office of Shearman & Sterling LLP at a reasonable
time in advance of such Optional Closing Date.
It is understood that the several Underwriters propose to offer the Offered Securities for
sale to the public as set forth in the Prospectus.
4. Certain Agreements of the Company. The Company agrees with the several Underwriters that
it will furnish to counsel for the Underwriters, one signed copy of the registration statement
relating to the Registered Securities, including all exhibits, in the form it
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became effective and
of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the
Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and
consented to by the Representative, subparagraph (5)) not later than the second business day
following the earlier of the date it is first used or the date of this Agreement. The
Company has complied and will comply with Rule 433.
(b) The Company will advise the Representative promptly of any proposal to amend or
supplement the Registration Statement or any Statutory Prospectus and will afford the
Representative a reasonable opportunity to comment on any such proposed amendment or
supplement; and the Company will also advise the Representative promptly of the filing of
any such amendment or supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part thereof and will use its
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 under the Securities Act would be) required to be delivered under
the Securities 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
Securities Act, the Company promptly will notify the Representative 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 Representative consents to, nor the Underwriters’ delivery of,
any such amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) As soon as practicable, but not later than 18 months, after the date of this
Agreement, the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the date of this Agreement
and satisfying the provisions of Section 11(a) of the Securities Act.
(e) The Company will furnish to the Underwriters copies of the Registration Statement,
including all exhibits, any related preliminary prospectus, any related preliminary
prospectus supplement, the Prospectus and all amendments and supplements
to such documents, in each case as soon as available and in such quantities as the
Representative reasonably requests. 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
and the determination of their eligibility for investment under the laws of such
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jurisdictions as the Representative designates and will continue such qualifications in
effect so long as required for the distribution.
(g) The Company will pay all expenses incident to the performance of its obligations
under this Agreement, for any filing fees or other expenses (including fees and
disbursements of counsel) in connection with qualification of the Registered Securities for
sale and determination of their eligibility for investment under the laws of such
jurisdictions as the Representative may designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating of the Offered
Securities, for any applicable filing fee incident to, the review by the National
Association of Securities Dealers, Inc. of the Registered Securities, for any travel
expenses of the Company’s officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers of Registered
Securities, for expenses incurred in preparing, printing and distributing each Statutory
Prospectus to the Underwriters and for expenses incurred in preparing, printing and
distributing each Issuer Free Writing Prospectus to investors and prospective investors;
provided that on the First Closing Date, the Underwriters will reimburse the Company for
$200,000 of expenses incurred by the Company in the performance of its obligations under
this Agreement.
(h) For a period of 60 days after the date of this Agreement, 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 Securities Act relating to, any
additional shares of its Common Stock or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior written consent of
the Representative, except that the Company may (i) issue shares of Common Stock 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, (ii) grant employee stock
options or restricted stock awards or other equity awards pursuant to the terms of a plan in
effect on the date hereof, (iii) issue Common Stock pursuant to the exercise of such options
or other equity awards, (iv) file registrations statements on Form S-8 with the Commission
registering Common Stock issuable under its stock option plans in effect on the date hereof
and (v) issue Common Stock in connection with an acquisition or merger approved by the
Company’s board of directors; provided that the prior written consent of the parties hereto
shall be deemed to have been given in respect of any General Use Issuer Free Writing
Prospectus listed on Schedule B hereto.
5. Free Writing Prospectuses. (a) The Company represents and agrees that, unless it obtains the prior consent of
the Representative, and each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representative, 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 Representative is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees
that it will treat each
- 11 -
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.
(b) The Company will prepare a final term sheet relating to the Offered Securities,
containing only information that describes the final terms of the Offered Securities and
otherwise in a form consented to by the Representative, and will file such final term sheet
within the period required by Rule 433(d)(5)(ii) following the date such final terms have
been established for all classes of the offering of the Offered Securities. Any such final
term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for
purposes of this Agreement. The Company also consents to the use by any Underwriter of a
free writing prospectus that contains only (i)(x) information describing the preliminary
terms of the Offered Securities or their offering or (y) information that describes the
final terms of the Offered Securities or their offering and that is included in the final
term sheet of the Company contemplated in the first sentence of this subsection or (ii)
other information that is not “issuer information,” as defined in Rule 433, it being
understood that any such free writing prospectus referred to in clause (i) or (ii) above
shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance by the Company of
its obligations hereunder and to the following additional conditions precedent:
(a) On the date hereof, the Representative shall have received a letter, dated the date
of delivery thereof, from each of (i) Ernst & Young LLP and (ii) PricewaterhouseCoopers LLP
in form and substance satisfactory to the Representative containing statements and
information of the type customarily included in accountants’ “comfort letters” to the
Underwriters with respect to the financial statements and certain financial information of
the Company.
All financial statements and schedules included in material incorporated by reference into the
Prospectus or the General Disclosure Package shall be deemed included in the Prospectus or the
General Disclosure Package for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the
effectiveness of the Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
- 12 -
(c) Subsequent to the execution 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 the Representative, 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 Securities Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred stock of the Company
(other than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in U.S. or
international financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of the Representative, 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 Nasdaq, 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 the Representative,
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.
(d) the Representative shall have received an opinion, dated each Closing Date, of
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company in substantially the form
attached hereto as Exhibit A.
(e) the Representative shall have received from Shearman & Sterling LLP, counsel for
the Underwriters, such opinion or opinions, dated each Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities, the Registration
Statement, the General Disclosure Package, the Prospectus and other related matters as the
Representative may require, 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.
(f) the Representative shall have received a certificate, dated each Closing Date, of
the President or any Vice President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after reasonable
investigation, shall state on behalf of the Company that the representations and warranties
of the Company in this Agreement are true and correct, that 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, that no
- 13 -
stop order
suspending the effectiveness of the Registration Statement or of any part thereof has been
issued and, to their knowledge, no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date 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.
(g) On or prior to the date hereof, the Representative shall have received lockup
letters from each of the executive officers and directors of the Company.
(h) the Representative shall have received a letter, dated each Closing Date, from each
of (i) Ernst & Young LLP and (ii) PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to in such letter
will be a date not more than three days prior to such Closing Date for the purposes of this
subsection.
The Company will furnish the Representative with such conformed copies of such opinions,
certificates, letters and documents as the Representative reasonably requests. The Representative
may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters under this Agreement.
7. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each
Underwriter, its partners, members, directors and officers and each person, if any, who controls
such Underwriter within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement at any time, any Statutory
Prospectus at 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, in the case of the Registration Statement
at any time, a material fact required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of any Statutory Prospectus at any time, the Prospectus or
any Issuer Free Writing Prospectus, a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, 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 Representative, if any, 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 this Agreement.
- 14 -
(b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company,
its directors and officers and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the Registration Statement
at any time, any Statutory Prospectus at 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
Representative, if any, specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of the following
information in the General Disclosure Package and the Prospectus: the statement set forth on the
cover page regarding delivery of the Offered Securities, the list of Underwriters and their
respective participation in the sale of the Offered Securities in the 1st paragraph
under the caption “Underwriting” in the prospectus supplement, the sentences related to concessions
and discounts appearing in the 4th paragraph under the caption “Underwriting” in the
prospectus supplement, and the information contained in the 11th paragraph under the
caption “Underwriting” in the prospectus supplement.
(c) Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying
party of the commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a) or (b) above except to the
extent that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. 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
- 15 -
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 behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable or insufficient to hold
harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company bear to
the total 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 or the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Offered
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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Securities 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 the Registration Statement and to each person, if any, who controls the Company within
the meaning of the Securities Act.
8. 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 principal amount of Offered Securities that such defaulting
-16-
Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the Representative
may make arrangements satisfactory to the Company 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 purchase on such Closing Date. If any Underwriter or Underwriters
so default and the aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date and arrangements satisfactory to the
Representative and the Company 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 or the Company, except as provided in Section 9 (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.
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section 4 and the
respective obligations of the Company and the Underwriters pursuant to Section 7 shall 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 8 or the
occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), 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.
10. Notices . All communications hereunder will be in writing and, if sent to the Underwriters, will be
mailed, delivered or telegraphed and confirmed to the Representative at Credit Suisse Securities
(USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at Blackboard Inc., 0000 X
Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000, Attention: Xxxxxxx Xxxxx, Chief Legal Officer, with a copy to
Xxxxx X. Xxxxx, at Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 0000 Xxxxxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000; provided, however, that any notice to an Underwriter pursuant to Section 7
will be mailed, delivered or telegraphed and confirmed to such Underwriter.
-17-
11. Successors. This Agreement will inure to the benefit of and be binding upon the Company
and such Underwriters as are identified herein and their respective successors and the officers and
directors and controlling persons referred to in Section 6, and no other person will have any right
or obligation hereunder.
12. Representation of Underwriters. The Representative will act for the several Underwriters
in connection with the financing described in this Agreement, and any action under this Agreement
taken by the Representative will be binding upon all the Underwriters.
13. 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.
14. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the Representative has 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 and the Representative have been created in respect of any of the
transactions contemplated by this Agreement (including the provisions of this Agreement
incorporated by reference therein), irrespective of whether the Representative has advised
or is advising the Company on other matters;
(b) the price of the Offered Securities set forth in this Agreement was established by
the Company following discussions and arms-length negotiations with the Representative and
the Company is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated herein;
(c) the Company has been advised that the Representative and its affiliates are engaged
in a broad range of transactions which may involve interests that differ from
those of the Company and that the Representative has no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; and
(d) the Company waives, to the fullest extent permitted by law, any claims it may have
against the Representative for breach of fiduciary duty or alleged breach of fiduciary duty
and agrees that the Representative shall have no liability (whether direct or indirect) to
the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on behalf of or in right of the Company, including stockholders, employees or
creditors of the Company.
15. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
-18-
The Company hereby submits 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.
-19-
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company one of the counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, Blackboard inc. |
||||
| By | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Chief Legal Officer | |||
The foregoing Underwriting Agreement is
hereby confirmed and accepted as
of the date first above written.
hereby confirmed and accepted as
of the date first above written.
Credit Suisse Securities (USA) LLC
By:
|
/s/ Xxxx Xxxxxx
|
|||
| Title: Managing Director |
Acting on behalf of itself and as the
Representative of the several
Underwriters
Representative of the several
Underwriters
SCHEDULE A
| Principal | ||||
| Underwriter | Amount | |||
Credit Suisse Securities (USA) LLC |
$ | 120,000,000 | ||
Citigroup Global Markets Inc. |
30,000,000 | |||
Total |
$ | 150,000,000 | ||
SCHEDULE B
The Pricing Term Sheet attached as Schedule C hereto.
SCHEDULE C
$150,000,000 aggregate principal amount of 3.250% Convertible Senior Notes due 2027
The following information supplements the Preliminary Prospectus Supplement dated June 13,
2007.
Title of Securities:
|
3.250% Convertible Senior Notes due 2027. | |
Aggregate Principal Amount Offered:
|
$150,000,000 principal amount. | |
Over-allotment Option:
|
$15,000,000; 30-day option to cover over-allotments. | |
Price to Public:
|
100% of principal amount. | |
Net proceeds to the Company, after
underwriters’ discount, but before
other offering expenses payable by the
Company (assuming no exercise of
over-allotment option):
|
$145.7 million. | |
Use of proceeds:
|
The Company intends to use $19.4 million of the proceeds to repay the amounts outstanding under its senior secured term loan facility, and to use the remaining net proceeds for working capital and general corporate purposes, which may include funding potential future acquisitions. | |
Estimated expenses of notes offering to
be paid by the Company:
|
$550,000. | |
Interest payment dates:
|
January 1 and July 1 of each year, beginning on January 1, 2008. | |
Record dates:
|
June 15 and December 15. | |
Maturity:
|
July 1, 2027. | |
Ranking:
|
Senior unsecured. | |
Coupon:
|
3.250%. | |
Make-Whole Fundamental Change Protection
|
Adjustment to the applicable conversion rate upon certain corporate transactions (per attached table). | |
Principal amount per note:
|
$ 1,000. | |
Last Sale Price of the Company’s common
stock (June 14, 2007):
|
$40.03 per share. | |
Base Conversion Rate Per Note:
|
15.4202 | |
| Subject to adjustment as set forth in the prospectus supplement. | ||
Base Conversion Price (approximately):
|
$ 64.85 | |
| Subject to adjustment as set forth in the prospectus supplement. | ||
Incremental Share Factor:
|
9.5605 | |
| Subject to adjustment as set forth in the prospectus supplement. |
Conversion Contingencies:
|
• During any calendar quarter subject to 130%
conversion trigger; |
|
• On or after January 1, 2027, until the
close of business on the business day preceding maturity; |
||
• If the average trading price for the notes
is less than 95% of the applicable conversion value; |
||
• If the notes are called for redemption; or |
||
• Upon the occurrence of specified corporate
transactions. |
||
Optional Redemption:
|
On or after July 1, 2011 the Company may redeem the notes for an amount equal to 100% of the principal amount of the notes, plus accrued and unpaid interest, if any, up to but not including the date of redemption, payable in cash. | |
Repurchase of Notes at Holder’s Option:
|
On July 1, 2011, July 1, 2017 and July 1, 2022 holders may require the Company to repurchase the notes for an amount equal to 100% of the principal amount of the notes, plus accrued and unpaid interest, if any, up to but not including the date of repurchase, payable in cash. | |
Repurchase upon a Fundamental Change:
|
Holders may require the Company to repurchase the notes for an amount equal to 100% of the principal amount of the notes, plus accrued and unpaid interest, if any, up to but not including the date of repurchase, payable in cash. | |
Book-Running Manager:
|
Credit Suisse Securities (USA) LLC. | |
Co-Manager:
|
Citigroup Global Markets Inc. | |
Gross Spread (%):
|
2.875%. | |
Gross Spread per Note:
|
$28.75. | |
Trade date:
|
June 15, 2007. | |
Settlement date:
|
June 20, 2007. | |
CUSIP:
|
091935 AA4. | |
ISIN:
|
US091935AA49. |
The issuer has filed a registration statement (including a prospectus and prospectus supplement)
with the SEC for the offering to which this communication relates. Before you invest, you should
read the prospectus and prospectus supplement in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Credit Suisse Securities (USA) LLC
toll-free at 1-800-221-1037.
Adjustment to Shares Delivered Upon Conversion Upon a Make-Whole Fundamental Change
The following table sets forth the increase in the Applicable Conversion Rate, expressed as a
number of additional shares to be received per $1,000 principal amount of notes.
| Effective Date | |||||||||||||||||||||||||
| Stock | June 20, | July 1, | July 1, | July 1, | July 1, | ||||||||||||||||||||
| Price | 2007 | 2008 | 2009 | 2010 | 2011 | ||||||||||||||||||||
| $ | 40.03 | 9.56 | 9.56 | 9.56 | 9.56 | 9.56 | |||||||||||||||||||
| $ | 45.00 | 8.22 | 7.61 | 7.01 | 6.52 | 6.80 | |||||||||||||||||||
| $ | 50.00 | 7.32 | 6.59 | 5.78 | 4.91 | 4.58 | |||||||||||||||||||
| $ | 55.00 | 6.73 | 5.93 | 4.99 | 3.86 | 2.76 | |||||||||||||||||||
| $ | 60.00 | 6.36 | 5.52 | 4.52 | 3.24 | 1.25 | |||||||||||||||||||
| $ | 65.00 | 6.11 | 5.26 | 4.24 | 2.91 | 0.00 | |||||||||||||||||||
| $ | 70.00 | 5.31 | 4.47 | 3.46 | 2.14 | 0.00 | |||||||||||||||||||
| $ | 75.00 | 4.66 | 3.85 | 2.87 | 1.62 | 0.00 | |||||||||||||||||||
| $ | 80.00 | 4.14 | 3.36 | 2.42 | 1.25 | 0.00 | |||||||||||||||||||
| $ | 85.00 | 3.71 | 2.97 | 2.08 | 1.00 | 0.00 | |||||||||||||||||||
| $ | 90.00 | 3.36 | 2.65 | 1.82 | 0.83 | 0.00 | |||||||||||||||||||
| $ | 95.00 | 3.06 | 2.39 | 1.61 | 0.71 | 0.00 | |||||||||||||||||||
| $ | 100.00 | 2.81 | 2.17 | 1.44 | 0.62 | 0.00 | |||||||||||||||||||
| $ | 125.00 | 1.99 | 1.50 | 0.97 | 0.42 | 0.00 | |||||||||||||||||||
| $ | 150.00 | 1.53 | 1.16 | 0.75 | 0.33 | 0.00 | |||||||||||||||||||
| $ | 175.00 | 1.25 | 0.94 | 0.62 | 0.27 | 0.00 | |||||||||||||||||||
| $ | 200.00 | 1.05 | 0.79 | 0.52 | 0.23 | 0.00 | |||||||||||||||||||
| $ | 225.00 | 0.90 | 0.68 | 0.45 | 0.20 | 0.00 | |||||||||||||||||||
| $ | 250.00 | 0.78 | 0.59 | 0.39 | 0.17 | 0.00 | |||||||||||||||||||
| $ | 275.00 | 0.68 | 0.52 | 0.34 | 0.15 | 0.00 | |||||||||||||||||||
| $ | 300.00 | 0.61 | 0.46 | 0.30 | 0.13 | 0.00 | |||||||||||||||||||
The exact stock price and effective date may not be set forth on the table, in which case:
| • | if the stock price is between two stock prices on the table or the effective date is between two effective dates on the table, the number of additional shares will be determined by a straight line interpolation between the number of additional shares set forth for the higher and lower stock price amounts and the earlier and later effective dates based on a 365 day year, as applicable; | |
| • | if the stock price is in excess of $300.00 per share (subject to adjustment), no increase in the applicable conversion rate will be made; and | |
| • | if the stock price is less than $40.03 per share (subject to adjustment), no increase in the applicable conversion rate will be made. |
EXHIBIT A
[Form of Opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP]
