EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
[ ] SHARES
VERIDIAN CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
May _, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION SECURITIES, INC.
CIBC WORLD MARKETS CORP.
XX XXXXX SECURITIES CORPORATION,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Veridian Corporation, a Delaware corporation
("COMPANY"), proposes to issue and sell shares ("FIRM
SECURITIES") of its Common Stock ("SECURITIES") and also proposes to issue and
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than additional shares ("OPTIONAL SECURITIES") of its
Securities as set forth below. The Firm Securities and the Optional Securities
are herein collectively called the "OFFERED SECURITIES". As part of the offering
contemplated by this Agreement, Credit Suisse First Boston Corporation (the
"DESIGNATED UNDERWRITER") has agreed to reserve out of the Firm Securities
purchased by it under this Agreement, up to shares, for sale to the
Company's directors, officers, employees and other parties associated with the
Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus (as
defined herein) under the heading "Underwriting" (the "DIRECTED SHARE PROGRAM").
The Firm Securities to be sold by the Designated Underwriter pursuant to the
Directed Share Program (the "DIRECTED SHARES") will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering price. Any
Directed Shares not subscribed for by the end of the business day on which this
Agreement is executed will be offered to the public by the Underwriters as set
forth in the Prospectus. The Company hereby agrees with the several Underwriters
named in Schedule A hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-83792) relating to the
Offered Securities, including a form of prospectus, has been filed
with the Securities and Exchange Commission ("COMMISSION") and either
(i) has been declared effective under the Securities Act of 1933
("ACT") and is not proposed to be amended or (ii) is proposed to be
amended by amendment or post-effective amendment. If such
registration statement ("INITIAL REGISTRATION STATEMENT") has
been declared effective, either (i) an additional registration
statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been filed with the Commission pursuant
to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the additional
registration statement or (ii) such an additional registration
statement is proposed to be filed with the Commission pursuant to
Rule 462(b) and will become effective upon filing pursuant to such
Rule and upon such filing the Offered Securities will all have been
duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to
either such registration statement has been filed with the Commission
prior to the execution and delivery of this Agreement, the most
recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective
upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the Act or,
in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution
and delivery of this Agreement, the additional registration statement
means (i) if the Company has advised the Representatives that it does
not propose to amend such registration statement, the date and time
as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that
it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective
by the Commission. If an additional registration statement has not
been filed prior to the execution and delivery of this Agreement but
the Company has advised the Representatives that it proposes to file
one, "EFFECTIVE TIME" with respect to such additional registration
statement means the date and time as of which such registration
statement is filed and becomes effective pursuant to Rule 462(b).
"EFFECTIVE DATE" with respect to the initial registration statement
or the additional registration statement (if any) means the date of
the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information contained in
the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time
of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL
REGISTRATION STATEMENT". The Initial Registration Statement and the
Additional Registration Statement are herein referred to collectively
as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no
such filing is required) as included in a Registration Statement, is
hereinafter referred to as the "PROSPECTUS". No document has been or
will be prepared or distributed in reliance on Rule 434 under the
Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and
2
did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) on the date of this
Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, none of such documents will include any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or the Prospectus based upon written information furnished to the
Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with the corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
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").
(d) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with the corporate
power and authority to own its properties and conduct its business as
described in the Prospectus; and each subsidiary of the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect ;
all of the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued and is fully
paid and nonassessable; and, except as set forth in (i) the Pledge
Agreement and Irrevocable Proxy, dated as of September 7, 1999, given
by the Company in favor of First Union National Bank (the "PLEDGE
AGREEMENT"), (ii) the Guarantor Pledge Agreement and Irrevocable
Proxy, dated as of September 7, 1999, given by certain Veridian
entities in favor of First Union National Bank (the "GUARANTOR PLEDGE
AGREEMENT" and together with the Pledge Agreement, the "PLEDGE
AGREEMENTS") and (iii) the Reaffirmation of Documents, dated as of
September 14, 2000, given by the Guarantors (as such term is defined
therein) in favor of First Union National Bank, the capital stock of
each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(e) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been issued, delivered and paid for in
accordance with this Agreement on each Closing Date (as defined
below), such Offered Securities will have been, validly issued, fully
paid and nonassessable and will conform as to legal matters to the
description
3
thereof contained in the Prospectus; and, at the Closing Date the
stockholders of the Company will not have any preemptive rights with
respect to the Securities.
(f) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(g) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to a Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act that have not been
satisfied or waived prior to the date hereof.
(h) The Offered Securities have been approved for listing on
The New York Stock Exchange subject to notice of issuance.
(i) 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 Act and such as may be required under state securities
laws.
(j) The execution, delivery and performance of 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, or (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, in the case of clause (i) and (ii) above,
for any such breach, violation or default that, individually or in
the aggregate, would not have a Material Adverse Effect, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) 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, except (i) as disclosed in the Prospectus or (ii) where the
failure to have such title, or the existence of such liens,
encumbrances and defects, would not, individually or in the
aggregate, have a Material Adverse Effect ; and except as disclosed
in the Prospectus, 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.
(m) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or
any subsidiary exists that might have a Material Adverse Effect.
4
(o) 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
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(p) Except as disclosed in the Prospectus, 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.
(q) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, or
which are otherwise material in the context of the sale of the
Offered Securities; and, to the Company's knowledge, no such actions,
suits or proceedings are threatened or contemplated.
(r) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
applied on a consistent basis, except, in the case of interim period
financial statements for the absence of normal recurring adjustments,
and the schedules included in each Registration Statement present
fairly the information required to be stated therein.
(s) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
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 Prospectus, there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(t) 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 Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(u) Furthermore, the Company represents and warrants to the
Underwriters that each participant in the Directed Share Program is a
U.S. person, as defined in Regulation S under the Securities Act.
(v) The Company has not offered, or caused the Underwriters
to offer, any offered Securities to any person pursuant to the
Directed Share Program with the specific intent to unlawfully
influence (i) a customer or supplier of the Company to alter the
customer's or
5
supplier's level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price of $ per share, the respective
numbers of shares of Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC")
drawn to the order of Veridian Corporation at the office of Cravath, Swaine &
Xxxxx, at 10:00 A.M., New York time, on , 2002, or at such other
time not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "FIRST CLOSING DATE". For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, 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 certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the above office at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC 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 Security to be paid for the Firm Securities. The
Company agrees to sell to the Underwriters the number of shares of Optional
Securities specified in such notice and the Underwriters agree, severally and
not jointly, to purchase such Optional Securities. Such Optional Securities
shall be purchased for the account of each Underwriter in the same proportion
as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by CSFBC 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 CSFBC 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 CSFBC 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 the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account at
a bank acceptable to CSFBC drawn to the order of Veridian Corporation, at the
office of Cravath, Swaine & Xxxxx. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBC requests
upon reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the above office at a reasonable time
in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to
6
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later
than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth
business day after the Effective Date of the Initial Registration
Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement
and an additional registration statement is necessary to register a
portion of the Offered Securities under the Act but the Effective
Time thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall
have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal
to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if
any) or the Prospectus and will not effect such amendment or
supplementation without CSFBC's consent, which will not be
unreasonably withheld; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of a Registration Statement
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 required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will promptly notify CSFBC 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 CSFBC's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of
the Initial Registration Statement (or, if later, the Effective Date
of the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "AVAILABILITY DATE" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Representatives copies
of each Registration Statement (five of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required
to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as
CSFBC requests. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement. All other documents shall be so
furnished as soon as
7
available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution; provided, however, that the
Company shall not be required to qualify as a foreign corporation or
to file a consent to service of process or to file annual reports or
to comply with any other requirements reasonably deemed by the
Company to be unduly burdensome.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities
for sale under the laws of such jurisdictions as CSFBC reasonably
designates and the printing of memoranda relating thereto, for the
filing fee incident to the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the Offered 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 the Offered Securities and
for expenses incurred in distributing preliminary prospectuses and
the Prospectus (including any amendments and supplements thereto) to
the Underwriters.
(h) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose
the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of CSFBC, except issuances
of Securities pursuant to the exercise of employee or director stock
options and warrants outstanding on the date hereof or the
registration of shares under, and grants of employee or director
stock options pursuant to the terms of, a plan in effect on the date
hereof.
(i) In connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to
the extent required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three
months following the date of the effectiveness of the Registration
Statement. The Designated Underwriter will notify the Company as to
which Participants will need to be so restricted. The Company will
direct the transfer agent to place stop transfer restrictions upon
such securities for such period of time.
(j) The Company will pay all fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed
Share Program and stamp duties, similar taxes or duties or other
taxes, if any, incurred by the underwriters in connection with the
Directed Share Program.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company 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) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to
the registration statement to be filed shortly prior to such
Effective Time), of KPMG LLP confirming
8
that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the
Registration Statements comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations;
(ii) on the basis of a reading of the latest
available interim financial statements of the
Company, inquiries of officials of the Company who
have responsibility for financial and accounting
matters and other specified procedures, nothing
came to their attention that caused them to believe
that:
(A) at the date of the latest
available balance sheet read by such
accountants, or at a subsequent specified
date not more than three business days
prior to the date of this Agreement, there
was any change in the capital stock or any
increase in short-term indebtedness or
long-term debt of the Company and its
consolidated subsidiaries or, at the date
of the latest available balance sheet read
by such accountants, there was any
decrease in consolidated net current
assets or net assets, as compared with
amounts shown on the latest balance sheet
included in the Prospectus; or
(B) for the period from the
closing date of the latest income
statement included in the Prospectus to
the closing date of the latest available
income statement read by such accountants
there were any decreases, as compared with
the corresponding period of the previous
year and with the period of corresponding
length ended the date of the latest income
statement included in the Prospectus, in
consolidated net sales or net operating
income or in the total or per share
amounts of consolidated income before
extraordinary items or net income except
in all cases set forth in clauses (A) and
(B ) above for changes, increases or
decreases which the Prospectus discloses
have occurred or may occur or which are
described in such letter; and
(iii) they have compared specified dollar amounts
(or percentages derived from such dollar amounts)
and other financial information contained in the
Registration Statements (in each case to the extent
that such dollar amounts, percentages and other
financial information are derived from the general
accounting records of the Company and its
subsidiaries subject to the internal controls of
the Company's accounting system or are derived
directly from such records by analysis or
computation) with the results obtained from
inquiries, a reading of such general accounting
records and other procedures specified in such
letter and have found such dollar amounts,
percentages and other financial information to be
in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to
its Effective Time, (ii) if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective
9
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration
Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by CSFBC. If the Effective
Time of the Additional Registration Statement (if any) is not prior
to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or, if earlier, the time the Prospectus is
printed and distributed to any Underwriter, or shall have occurred at
such later date as shall have been consented to by CSFBC. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as one enterprise which, in
the judgment of a majority in interest of the Underwriters including
the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities; (ii) any change
in U.S. or international financial, political or economic conditions
or currency exchange rates or exchange controls as would, in the
judgment of a majority in interest of the Underwriters including the
Representatives, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market; (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities;
(v) any major disruption of settlements of securities or (vi) any
attack on, outbreak or escalation of hostilities or major acts of
terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion,
dated such Closing Date, of Xxxxxxx & Xxxxx Mayor, Day, Xxxxxxxx &
Xxxxxx L.L.P., counsel for the Company, to the effect that:
(i) The Company is an existing corporation in good
standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) Each of the subsidiaries of the Company is in
good standing under the laws of its state of incorporation;
(iii) The Offered Securities have been duly
authorized and, when issued and delivered to the
Underwriters against payment therefore as provided in this
Agreement, will be validly issued, fully paid and
nonassessable; all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are nonassessable and, to such counsel's knowledge,
are fully paid; the authorized capital stock of the Company
conforms in all material respects as to legal matters to the
10
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Securities under applicable law, the
Company's certificate of incorporation or by-laws or, to
such counsel's knowledge, any other agreement or instrument
to which the Company is a party or by which the Company is
bound.
(iv) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be
owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act that have not been satisfied or waived
prior to the date hereof;
(v) No consent, approval, authorization or order
of, or filing with, any United States federal or Delaware
governmental agency, body or court having jurisdiction over
the Company or any of its subsidiaries or any of their
respective properties is required for the consummation of
the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered
Securities by the Company, except such as have been obtained
and made under the Act and such as may be required under
state securities laws;
(vi) The execution, delivery and performance of
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) Delaware General Corporation Law, (ii) any United
States federal statute, any rule, regulation or order of any
United States federal governmental agency or body having
jurisdiction over the Company or any subsidiary of the
Company or any of their properties, (iii) any agreement or
instrument that is filed as an exhibit to the Registration
Statement, or (iv) the charter or by-laws of the Company or
any such subsidiary, except for such breaches, violations
and defaults with respect to (i) or (ii) above, which would
not, individually or in the aggregate, have a Material
Adverse Effect and except that such counsel expresses no
opinion with respect to state securities or blue sky laws
with respect to the rights to indemnity and contribution
under this Agreement;
(vii) The statements in the Registration Statements
and Prospectus under "Business--Legal Matters,"
"Management--Employment Agreements," "Management--2000 Stock
Incentive Plan," "Management--Leadership Stock Purchase
Plan", "Management--Veridian Retirement Savings Plan" and
"Management--Other Plans", insofar as such statements
constitute a summary of the legal matters, documents or
proceedings referred to therein, are accurate in all
material respects; and such counsel do not know of any legal
or governmental proceedings required to be described in a
Registration Statement or Prospectus which are not described
as required and to the knowledge of such counsel there are
no contracts or documents of a character required to be
described in a Registration Statement or the Prospectus or
to be filed as exhibits to a Registration Statement which
are not described and filed as required;
(viii) The Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in
such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or
was included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and,
to the knowledge of such counsel, no stop order suspending
the effectiveness of a Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or
11
are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, (other than the financial
statements and notes thereto and related schedules and other
financial data contained in the Registration Statements or
the Prospectus, as to which no opinion need be rendered),
appeared on their face to comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; and
(ix) This Agreement has been duly authorized,
executed and delivered by the Company.
Such counsel shall further state that no facts have come to
such counsel's attention that lead such counsel to believe that any
part of a Registration Statement or any amendment thereto, (other
than (i) the financial statements and schedules contained therein,
including the notes thereto and the auditors' report thereon and (ii)
the other financial information contained therein, as to which such
counsel need not comment), as of its Effective Date or as of such
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, (other than (i)
the financial statements and schedules contained therein, including
the notes thereto and the auditors' report thereon and (ii) the other
financial information contained therein, as to which such counsel
need not comment), as of its date or as of such Closing Date,
contained 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.
(e) The Representatives shall have received an opinion,
dated such Closing Date, of Xxxxxx X. Xxxx, Xx., Senior Vice
President and General Counsel for the Company, to the effect that:
(i) The Company is duly qualified to do business as
a foreign corporation in good standing in all jurisdictions
in which its ownership or lease of property or the conduct
of its business requires such qualification;
(ii) Each of the subsidiaries of the Company is
duly qualified to do business as a foreign corporation in
good standing in all jurisdictions in which its ownership or
lease of property or the conduct of its business requires
such qualification;
(iii) The Company and its subsidiaries own, possess
or can acquire on reasonable terms, adequate intellectual
property rights necessary to conduct the business now
operated by them, or presently employed by them, and have
not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and
(iv) The statements under the caption
"Business--Government Contracting and Regulatory Process" in
the Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings
referred to therein, are accurate in all material respects;
and to the knowledge of such counsel, there are no legal or
governmental proceedings required to be described in the
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration
Statement or the Prospects or to be filed as exhibits to a
Registration Statement which are not described and filed as
required.
Such counsel shall further state that no facts have come to
such counsel's attention that lead such counsel to believe that any
part of a Registration Statement or any amendment thereto, (other
than (i) the financial statements and schedules contained therein,
including the notes thereto and the auditors' report thereon and (ii)
the other financial information contained therein, as to which such
counsel need not comment), as of its Effective Date or as of such
Closing Date,
12
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, (other than (i) the financial
statements and schedules contained therein, including the notes
thereto and the auditors' report thereon and (ii) the other financial
information contained therein, as to which such counsel need not
comment), as of its date or as of such Closing Date, contained 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.
(f) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities delivered on
such Closing Date, the Registration Statements, the Prospectus and
other related matters as the Representatives may require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties
of the Company in this Agreement are true and correct; the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission;
the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing
fee in accordance with Rule 111(a) or (b) under the Act, prior to the
time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the date of the most recent financial statements
in the Prospectus, 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 or contemplated by the Prospectus or as
described in such certificate.
(h) The Representatives shall have received a letter, dated
such Closing Date, of KPMG LLP which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
days prior to such Closing Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters, in the form
previously agreed upon by the Company and the Representatives, from
each of the executive officers, directors and equityholders [listed
on Annex ___]of the Company.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter
13
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in subsection (b) below; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant agreed to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program, other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company 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 (i) the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the [fourth]
paragraph under the caption "Underwriting," and the information in the
[ ], [ ] and [ ] paragraphs under the caption
"Underwriting," (ii) the following information in the Prospectus furnished on
behalf of Credit Suisse First Boston Corporation: the information in the
[ ] paragraph under the caption "Underwriting," (iii) the following
information in the Prospectus furnished on behalf of CIBC World Markets
Corporation: the information in the [ ] paragraph under the caption
"Underwriting," and (iv) the following information in the Prospectus furnished
on behalf of First Union Securities, Inc.: the information in the [ ]
paragraph under the caption "Underwriting."
14
(c) Promptly after receipt by an indemnified party under this Section
or Section 9 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 or Section 9, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under subsection (a) or (b) above
or Section 9. 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 or Section 9, as the case may be, for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to the last paragraph in Section 7 (a) hereof in respect of
such action or proceeding, then in addition to such separate firm for the
indemnified parties, the indemnifying party shall be liable for the reasonable
fees and expenses of not more than one separate firm (in addition to any local
counsel) for the Designated Underwriter for the defense of any losses, claims,
damages and liabilities arising out of the Directed Share Program, and all
persons, if any, who control the Designated Underwriter within the meaning of
either Section 15 of the Act of Section 20 of the Exchange Act. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
(i) includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or
a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total 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 Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
15
(e) The obligations of the Company under this Section or Section 9
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 or the QIU (as hereinafter defined) within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
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 number of
shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of
shares of Offered Securities that the Underwriters are obligated to purchase
on such Closing Date, CSFBC 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
number of shares of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to CSFBC 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 10
(provided that if such default occurs with respect to Optional Securities
after the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Qualified Independent Underwriter. The Company hereby confirms
that at its request CSFBC has without compensation acted as "qualified
independent underwriter" (in such capacity, the "QIU") within the meaning of
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. in connection with the offering of the Offered Securities. The
Company will indemnify and hold harmless the QIU against any losses, claims,
damages or liabilities, joint or several, to which the QIU may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon the
QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred.
10. 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 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 and the obligations of the Company pursuant
to Section 9 shall remain in effect, and if any Offered Securities have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of
the Offered Securities by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (iii), (iv), (v),
(vi) or (vii) of Section 6(c), the Company will reimburse the Underwriters for
all out-of-pocket expenses
16
(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 faxed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group (fax: 000-000-0000), or, if sent to the Company, will be mailed, faxed
or telegraphed and confirmed to it at Veridian Corporation, 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxx (fax:
000-000-0000); provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and
no other person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representatives jointly or by CSFBC 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. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company 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.
17
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement between
the Company and the several Underwriters in accordance with its terms.
Very truly yours,
VERIDIAN CORPORATION
By
-----------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive
Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION SECURITIES, INC.
CIBC WORLD MARKETS CORP.
XX XXXXX SECURITIES CORPORATION
Acting on behalf of itself and as the
Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
------------------------------------------------------
[Insert title]
18
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston Corporation...............
First Union Securities, Inc..........................
CIBC World Markets Corp..............................
XX Xxxxx Securities Corporation.....................
Total..................... ---------------
===============
