EXHIBIT 1.1
$200,000,000
COMPUTER SCIENCES CORPORATION
____% Notes Due __________, 2009
Form of Underwriting Agreement
______________, 1999
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As Representatives of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Computer Sciences Corporation, a Nevada corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in SCHEDULE I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), $200,000,000 principal amount of its _____% Notes Due
__________, 2009 (the "Securities"). The Securities will be issued pursuant
to the provisions of an Indenture (the "Indenture") to be dated as of
______________, 1999 between the Company and Citibank, N.A., as Trustee (the
"Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Securities. The
registration statement as amended at the time when it shall become effective,
or, if a post-effective amendment is filed with respect thereto, as amended
by such post-effective amendment at the time of its effectiveness, including
in each case information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act, is referred to in this Agreement as the "Registration
Statement", and the prospectus in the form first used to confirm sales of
Securities is referred to in this Agreement as the "Prospectus". If the
Company has filed an abbreviated registration statement pursuant to Rule
462(b) under the Securities Act (the "Rule 462 Registration Statement"), then
any reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462 Registration
Statement. Any reference in this Agreement to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such preliminary prospectus or the
Prospectus, as the case may be, and any reference to "amend," "amendment or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Underwriter's name in Schedule I hereto at a price equal to
___% of their principal amount plus accrued interest, if any, from
_______, 1999 to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Securities as soon after
(A) the Registration Statement has become effective and (B) the parties
hereto have executed and delivered this Agreement, as in the judgment of the
Representatives is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives on ________1999, or at such other time on the same or such
other date, not later than the third Business Day thereafter, as the
Representatives and the Company may agree upon in writing. The time and date
of such payment is referred to herein as the "Closing Date". As used herein,
the term "Business Day" means any day other than a day on which banks are
permitted or required to be closed in New York City.
Payment for the Securities shall be made against delivery to the nominee
of The Depository Trust Company for the respective accounts of the several
Underwriters of the Securities of one or more global notes (collectively, the
"Global Note ) representing the Securities, with any transfer taxes payable
in connection with the transfer to the Underwriters of the Securities duly
paid by the Company. The Global Note will be made available for inspection
by the Representatives at the office of the Trustee, Citibank, N.A., 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date.
As compensation to the Underwriters for the purchase and sale of the
Securities hereunder, the Company will pay, or cause to be paid, to X.X.
Xxxxxx Securities Inc., for the accounts of the several Underwriters, an
amount equal to ____% of the principal
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amount of the Securities purchased by the Underwriters hereunder on the
Closing Date. On the Closing Date the Company will pay or cause to be paid,
by wire transfer, in immediately available funds, such commission to the
account specified by X.X. Xxxxxx Securities Inc.
4. The Company represents and warrants to each Underwriter as of the
date hereof and as of the Closing Date, and agrees with each Underwriter, as
follows:
(a) PROSPECTUS. No order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Securities Act, complied when so filed in all material
respects with the Securities Act, and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein.
(b) REGISTRATION STATEMENT. No stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company, threatened
by the Commission; and the Registration Statement and Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act") and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or supplement
thereto, contain 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 the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will not contain any untrue
statement of a material fact or omit to state a 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 representations and
warranties shall not apply to (i) that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification (Form T-1)
of the Trustee under the Trust Indenture Act, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in reliance
upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use therein.
(c) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Prospectus at the time they were or
hereafter are filed with the Commission complied and will comply in all
material respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at
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the Closing Date, do not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that this
representation, warranty and agreement shall not apply to pricing information
omitted in the preliminary prospectus or to statements in or omissions from
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Prospectus.
(d) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and the Prospectus (including any financial statements and
supporting schedules incorporated by reference therein) are independent
certified public accountants with respect to the Company and its former
subsidiary, The Continuum Company, Inc., a Delaware corporation
("Continuum"), within the meaning of Regulation S-X under the Securities Act
and the Exchange Act.
(e) FINANCIAL STATEMENTS. The financial statements, together with the
related schedules and notes, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly (i) the financial
position of the Company and its consolidated subsidiaries at the dates
indicated, (ii) the statement of operations of the Company and its
consolidated subsidiaries, and (iii) stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in or
incorporated by reference in the Registration Statement and the Prospectus
present fairly in accordance with GAAP the information required to be stated
therein. The selected financial information included in the Registration
Statement and the Prospectus present fairly the information shown therein and
has been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus.
(f) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since January 1, 1999 and
except as otherwise stated in the Registration Statement and the Prospectus,
(i) there has been no material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, assets, properties or business affairs of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (ii) there has
been no material change in the capital stock of the Company or the long-term
debt of the Company and its subsidiaries and (iii) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(g) GOOD STANDING OF THE COMPANY. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Nevada and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform
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its obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business in all 50 states of the United
States (except for the state of its incorporation) and is in good standing in
all 00 xxxxxx xx xxx Xxxxxx Xxxxxx.
(h) STATUS OF CSC ENTERPRISES. CSC Enterprises, a Delaware general
partnership ("CSC Enterprises"), has been duly formed and is validly existing
as a general partnership under the laws of the State of Delaware, with power
and authority (partnership and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus.
(i) STATUS OF CSC COMPUTER SCIENCES LIMITED. CSC Computer Sciences
Limited ("CSC Limited") has been duly organized and is validly existing under
the laws of England and Wales, has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and all resolutions, returns and other documents required by the
Companies Act of 1985 or to be delivered to the Registrar of Companies have
been duly delivered and are true and accurate. All of the issued and
outstanding capital stock of CSC Limited has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of CSC Limited was issued in violation of any
preemptive or similar rights arising by operation of law, or under the
memorandum or articles of association or by-laws of CSC Limited or under any
agreement to which the Company or CSC Limited is a party.
(j) GOOD STANDING OF DESIGNATED SUBSIDIARIES. Each of CSC Consulting,
Inc., CSC Outsourcing Inc., CSC Credit Services, Inc., CSC Healthcare, Inc.
and CSC Enterprises, Inc. (each a "Designated Subsidiary" and, collectively,
the "Designated Subsidiaries") has been duly organized and is validly
existing as a corporation, in good standing under the laws of the
jurisdiction of its incorporation, has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect (all
such jurisdictions are listed on Schedule II hereto); except as otherwise
disclosed in the Prospectus, all of the issued and outstanding capital stock
of each such Designated Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and (except for CSC Outsourcing
Inc., all of the issued and outstanding capital stock of which is owned
directly or through subsidiaries by CSC Holdings, Inc., all of the issued and
outstanding common stock of which is owned by CSC Enterprises, which in turn
is a partnership in which the Company, directly or through subsidiaries, has
a 99.9% ownership interest) is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of capital
stock of any Designated Subsidiary was issued in violation of any preemptive
or similar rights arising by operation of law, or under the charter or
by-laws of any Designated Subsidiary or under any agreement to which the
Company or any Designated Subsidiary is a party.
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(k) CAPITALIZATION. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Pros pectus in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances or subsequent repurchases, if any, pursuant to employee benefit or
option plans referred to in the Annual Report on Form 10-K for the year ended
April 3, 1998 or subsequent repurchases or cancellations, if any, of
restricted stock awards that do not vest upon termination of employment, or
subsequent issuances of cash in lieu of fractional shares in connection with
the Continuum acquisition).
(l) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(m) AUTHORIZATION OF THE INDENTURE. The Indenture has been duly
authorized by the Company and, upon effectiveness of the Registration
Statement, will have been duly qualified under the Trust Indenture Act and,
when executed and delivered by the Company and the Trustee will constitute a
legally valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(n) AUTHORIZATION OF THE SECURITIES. The Securities have been duly
authorized and, at the Closing Date, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor, will constitute
legally valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be
in the form contemplated by, and entitled to the benefits of, the Indenture.
(o) DESCRIPTION OF THE SECURITIES AND THE INDENTURE. The Securities
and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the preliminary prospectus, the
Prospectus and the Registration Statement and will be in substantially the
respective forms previously delivered to the Underwriters; PROVIDED, HOWEVER,
that the preliminary prospectus excludes certain pricing information.
(p) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by
6
which any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject (collectively, "Agreements
and Instruments"), except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture, the Securities and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated hereby or thereby or
in the Prospectus and the consummation of the transactions contemplated
herein and in the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder and under the
Indenture and the Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach
of, or default or a Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, the
Agreements and Instruments except for such conflicts, breaches or defaults or
liens, charges or encumbrances that, individually or in the aggregate, would
not result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter, by-laws or other organizational
documents of the Company or any of its subsidiaries or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets or
properties. As used herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries prior to its scheduled
maturity. No consent, approval, authorization, order, license, registration
or qualification of or with any such government instrumentality or court is
required for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities
Act, the Trust Indenture Act and as may be required under state securities or
"blue sky" laws in connection with the purchase and distribution of the
Securities by the Underwriters.
(q) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which, in
either case, would result in a Material Adverse Effect.
(r) ABSENCE OF PROCEEDINGS. The Company reasonably believes that
there are no actions, suits, proceedings, inquiries or investigations before
or brought by any court or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of the Company, threatened, against or
applicable to the Company or any of its subsidiaries which (i) could
reasonably be expected, either individually or in the aggregate, to result in
a Material Adverse Effect, or (ii) would materially and adversely
7
affect the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder. There are no
contracts or other documents that are required to be filed as an exhibit to
the Registration Statement which are not filed as required.
(s) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or have the right to use adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by them, and neither the Company nor any
of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, individually or in the aggregate, would result in a
Material Adverse Effect.
(t) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure to have any such Governmental License would not, either individually
or in the aggregate, have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure to comply would not,
individually or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(u) TITLE TO PROPERTY. The Company and its subsidiaries have good
title to all real property owned by the Company and its subsidiaries, as the
case may be, and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (i) are
described in the Prospectus or (ii) do not, individually or in the aggregate,
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries, except where such interferences, either
individually or in the aggregate, would not have a
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Material Adverse Effect; and all of the leases and subleases to which the
Company or any of its subsidiaries is a party and under which the Company or
any of its subsidiaries holds properties described in the Prospectus or in
any document incorporated by reference therein, are in full force and effect,
except where the failure to be in full force and effect would not, either
individually or in the aggregate, have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of any claim
of any sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any such leases or subleases, or
affecting or questioning the rights of the Company or any of its subsidiaries
to the continued possession of the leased or subleased premises under any
such lease or sublease, except where such claim, either individually or in
the aggregate, would not have a Material Adverse Effect.
(v) NO BRIBES. Neither the Company nor any of its subsidiaries has,
directly or indirectly, paid or delivered any fee, commission or other sum of
money or item or property, however characterized, to any finder, agent,
government official or other party, in the United States or any other
country, which is in any manner related to the business, assets or operations
of the Company or any of its subsidiaries, which is illegal under any
federal, state or local laws of the United States (including, without
limitation, the U.S. Foreign Corrupt Practices' Act) or any other country
having jurisdiction; and neither the Company nor any of its subsidiaries has
participated in any boycotts.
(w) TAX RETURNS. The Company and its subsidiaries have filed all
federal, state, local and foreign tax returns that are required to be filed
or have duly requested extensions thereof and have paid all taxes required to
be paid by any of them and any related assessments, fines or penalties,
except for any such tax, assessment, fine or penalty that is being contested
in good faith and by appropriate proceedings, and except where the failure to
have made such filings, paid such taxes or requested such extensions would
not, either individually or in the aggregate, have a Material Adverse Effect;
and adequate charges, accruals and reserves have been provided for in the
financial statements referred to in Section 4(e) above in respect of all
federal, state, local and foreign taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been finally
determined or remains open to examination by applicable taxing authorities,
except where the failure to provide for such adequate charges, accruals and
reserves would not, individually or in the aggregate, have a Material Adverse
Effect.
(x) ENVIRONMENTAL LAWS. Except as described in the Prospectus and
except as would not, individually or in the aggregate, result in a Material
Adverse Effect, (i) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (ii)
the Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
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demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Laws against the
Company or any of its subsidiaries and (iv) there are no events or
circumstances that might reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or Environmental Laws.
(y) INVESTMENT COMPANY ACT. The Company is not, and upon the issuance
and sale of the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(z) RELATED TRANSACTIONS. The Company is not aware of any
relationship, direct or indirect, between or among the Company or any of its
subsidiaries on the one hand, and the directors and officers of the Company
or any of its subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the
Prospectus which is not so described.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file the
final Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430A under the Securities Act; and to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities and to furnish copies of the Prospectus to
the Underwriters in New York City prior to 10:00 a.m., New York City time, on
the Business Day next succeeding the date of this Agreement in such
quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the Representatives,
four conformed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits and documents
incorporated by reference therein, and to each other Underwriter a conformed
copy of the Registration Statement (as originally filed) and each amendment
thereto, in each case without exhibits but including the documents
incorporated by reference therein and, during the period mentioned in
paragraph (e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Representatives may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes
10
effective, to furnish the Representatives with a copy of the proposed
amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm such advice
in writing, (i) when the Registration Statement has become effective, (ii)
when any amendment to the Registration Statement has been filed or becomes
effective, (iii) when any supplement to the Prospectus or any amendment to
the Prospectus has been filed, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose, (vi) of the occurrence of any event, within the
period referenced in paragraph (e) below, 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 in order to make
the statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, and (vii) of the receipt by the
Company of any notification with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use its
best efforts to prevent the issuance of any such stop order, or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus, or of any order suspending any such qualification of the
Securities, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public
offering of the Securities that in the opinion of counsel for the
Underwriters or the opinion of counsel to the Company a prospectus relating
to the Securities is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to the
Company) to which Securities may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so long
as reasonably required for distribution of the Securities; PROVIDED that the
Company shall not be required to file a general consent to service of process
in any jurisdiction, to qualify as a foreign corporation or as a dealer
11
in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject;
(g) so long as the Securities are outstanding, to furnish to the
Representatives copies of all reports or other communications (financi al or
other) furnished to holders of the Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(h) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell, or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the Securities;
(i) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(j) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities Act of
the Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements thereto),
(iii) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws
of such jurisdictions as the Underwriters may designate (including fees and
disbursements of Xxxxxx & Xxxxxxx associated with state securities or blue
sky laws), (iv) related to any filing with National Association of Securities
Dealers, Inc., (v) in connection with the costs of duplication and delivery
of this Agreement, the Indenture and the Preliminary and Supplemental Blue
Sky Memoranda to the Underwriters and dealers and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, and (vi)
payable to rating agencies in connection with the rating of the Securities;
PROVIDED, HOWEVER, that the Underwriters will pay all expenses of their
counsel incident to the performance of their obligations under this Agreement
(other than fees and disbursements of Xxxxxx & Xxxxxxx associated with state
securities or blue sky laws).
6. The several obligations of the Underwriters hereunder to purchase
the Securities on the Closing Date are subject to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) the Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than
5:00 P.M., New York City time,
12
on the date hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in effect,
and no proceedings for such purpose shall be pending before or threatened by
the Commission; the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional
information shall have been complied with to the satisfaction of the
Representatives;
(b) the representations and warranties of the Company contained herein
are true and correct on and as of the Closing Date as if made on and as of
the Closing Date and the Company shall have complied with all agreements and
all conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
(i) shall any notice have been given of (A) any downgrading or (B) any
intended or potential downgrading in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act nor (ii) shall any such nationally recognized statistical
rating organization have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any securities of
the Company;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus, the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the Closing Date on the
terms and in the manner contemplated in the Prospectus; and neither the
Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, satisfactory to the
Representatives to the effect set forth in subsections (a) through (c) (with
respect to the respective representations, warranties, agreements and
conditions of the Company) of this Section and to the further effect that
there has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, assets, properties or business affairs of
the Company and its subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business, from that set forth
13
or contemplated in the Registration Statement;
(f) at the Closing Date, the Representatives shall have received the
favorable opinion, dated as of the Closing Date, of (i) Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel for the Company, in the form attached hereto as EXHIBIT
A, together with signed or reproduced copies of such letter for each of the
other Underwriters, (ii) Xxxxxxx X. Xxxx, the Vice President, General Counsel
and Secretary of the Company, in the form attached hereto as EXHIBIT B,
together with signed or reproduced copies of such letter for each of the
other Underwriters. In giving such opinion Xxxxxx, Xxxx & Xxxxxxxx LLP may
rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to the Representatives. Such counsel
may also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials;
(g) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date, Deloitte & Touche LLP
shall have furnished to the Representatives letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to the
Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(h) the Representatives shall have received on and as of the Closing
Date an opinion of Xxxxxx & Xxxxxxx, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters; and
(i) on or prior to the Closing Date the Company shall have furnished
to the Representatives such further certificates and documents as set forth
in Schedule III hereto.
7. The Company agrees to indemnify and hold harmless each Underwriter,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and
other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make
14
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use
therein; PROVIDED, HOWEVER, that the indemnity agreement provided in this
Section 7 with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling any
Underwriter) from whom the person asserting any losses, claims, damages,
liabilities or actions based upon any untrue statement or alleged untrue
statement of material fact or omission or alleged omission to state therein a
material fact purchased Securities, if the untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or had
not been sent or given to such person within the time required by the
Securities Act.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person
and any others the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties
in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and the Indemnified Person
objects to the selection of counsel after having been advised by such counsel
that there may be one or more legal defenses available to the Indemnified
Person which are different from or additional to those available to the
Indemnifying Person. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and
15
expenses shall be reimbursed as they are incurred. Any such separate firm
for the Underwriters, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities and such control persons of
Underwriters shall be designated in writing by X.X. Xxxxxx Securities Inc.
and any such separate firm for the Company, its directors, its officers who
sign the Registration Statement and such control persons of the Company shall
be designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel, the Indemnifying
Person agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent if (i) such Indemnifying Person reimburses such Indemnified Person in
accordance with such aforesaid request to the extent the Indemnifying Person
in good faith considers such request to be reasonable; and (ii) such
Indemnifying Person provides written notice to the Indemnified Person stating
that in good faith the Indemnifying Person believes the unpaid balance to be
unreasonable and substantiating the reasons therefor, in each case prior to
the date of such settlement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnity could have been sought hereunder
by such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (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 hand 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 that 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 respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the Company and the total underwriting discounts and the
16
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate public offering
price of the Securities. The relative fault of the Company on the one hand
and the Underwriters on the other 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 by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter 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 that 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 to contribute pursuant to
this Section 7 are several in proportion to the respective principal amount
of Securities set forth opposite their names in SCHEDULE I hereto, and not
joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law of in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, or the National Association of Securities Dealers,
Inc.,
17
(ii) trading of any securities of or guaranteed by the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal, New York State or California State
authorities, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and
which, in the judgment of the Representatives, makes it impracticable to
market the Securities on the terms and in the manner contemplated in the
Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Securities which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in SCHEDULE I bears to
the aggregate principal amount of Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-tenth of such
principal amount of Securities without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of Securities to be purchased on such date,
and arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Underwriters or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in
any other documents or arrangements may be effected. Any action taken under
this paragraph shall
18
not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters or each affiliate of any Underwriter which
assists such Underwriter in the distribution of the Securities, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of
the Underwriters, and any such action taken by the Representatives jointly or
by X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters.
All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000 (fax: (000) 000-0000); Attention: Transaction Execution
Group. Notices to the Company shall be given to it at Computer Sciences
Corporation, 0000 Xxxx Xxxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000, (fax:
(000) 000-0000); Attention: Xxxxxxx X. Xxxx, Esq. and Xxxxxxx X. Xxxxxxx,
Esq.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
19
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
COMPUTER SCIENCES CORPORATION
By:
------------------------------------
Name:
Title:
Accepted: __________, 1999
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx
Incorporated
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
By:
--------------------------------
Name:
Title:
S-1
EXHIBIT A
FORM OF OPINION OF COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 6(f)
Note: A final draft form of opinion, with all assumptions and
qualifications, will be attached prior to execution of this Agreement.
1. The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the State of Nevada.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a legally valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms.
The Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended.
5. The Securities are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, assuming
that the Securities have been duly authenticated by the Trustee in the manner
described in the authentication order delivered to the Trustee by the Company
on the date hereof upon payment therefor, the Securities have been duly
issued and delivered by the Company and constitute legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms and will be entitled to the benefits of the Indenture.
6. The Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Prospectus and the Registration
Statement.
7. The information set forth in the Registration Statement under the
heading "Indemnification of Directors and Officers," insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents or proceedings.
8. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, other than under the blue sky laws of the various states
and/or foreign
A-1
jurisdictions (as to which we render no opinion), is necessary or required in
connection with the due authorization, execution and delivery of the
Underwriting Agreement or the due execution, delivery or performance of the
Indenture by the Company or for the offering, issuance, sale or delivery of
the Securities, except such authorization, approval, consent, license, order,
registration, qualification or decree as have been obtained under the
Securities Act and the Trust Indenture Act and as may be required under state
securities or blue sky laws (as to which we render no opinion) in connection
with the purchase and distribution of the Securities by the Underwriters.
9. The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Underwriting Agreement (including the
issuance and sale of the Securities and the use of proceeds from the sale of
the Securities to repay the principal and accrued interest on the 6.80%
Guaranteed Notes due April 15, 1999 issued by CSC Enterprises and guaranteed
by the Company as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Underwriting Agreement, the Indenture and the Securities do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with, constitute a breach of or result in any violation of, the
provisions of the applicable organizational documents, charter or by-laws of
the Company, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government, government
instrumentality or court having jurisdiction over the Company or any of its
subsidiaries or any of its properties, assets or operations.
10. The Company is not an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended.
We have participated in conferences with officers and representatives of
the Company, representatives of the independent public accountants for the
Company and the Representatives and their counsel at which the contents of
the Registration Statement and Prospectus and related matters were discussed.
Except as set forth in paragraph 7, we have not undertaken to determine
independently the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus, (including, without
limitation, the financial statements, notes thereto, financial statement
schedules, other financial, statistical or accounting data included or
incorporated by reference therein or omitted therein or information derived
therefrom, as to which we make no comment) and because of the limitations
inherent in the examination made by us and knowledge available to us and the
nature and extent of our participation in such conferences, except as set
forth in paragraph 7, we are not passing upon and are unable to assume,
explicitly or implicitly, and, except as set forth in paragraph 7, we do not
assume, any responsibility for the accuracy, completeness or fairness of such
statements and we can give no assurance that such examination, knowledge and
participation in such conferences would necessarily reveal matters of
significance with respect to the items discussed in the remainder of this
paragraph. However, based on and subject to the foregoing, nothing has come
to our attention that
A-2
would lead us to believe that the Registration Statement (except for
financial statements, notes thereto, financial statement schedules, other
financial, statistical or accounting data included or incorporated by
reference therein or omitted therefrom or information derived therefrom, as
to which we make no statement), at the time it became effective, contained an
untrue statement of a material fact or omitted to state a 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
(except for financial statements, notes thereto, financial statement
schedules, other financial, statistical or accounting data included or
incorporated by reference therein or omitted therefrom or information derived
therefrom, as to which we make no statement), as of the date of the
Prospectus, at the time any such amendment or supplement thereto was issued
or at the Closing Date, contained an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Such opinion shall not state that it is to be governed or qualified by,
or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinion, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
A-3
EXHIBIT B
FORM OF OPINION OF XXXXXXX X. XXXX,
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
OF THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 6(f)
Note: A final draft form of opinion, with all assumptions and
qualifications, will be attached prior to execution of this Agreement.
1. The Company is a Nevada corporation duly qualified as a foreign
corporation to transact business in each of the other 49 states of the United
States and is in good standing in all 50 states. CSC Enterprises has been
duly formed and is validly existing as a general partnership under the laws
of the State of Delaware. CSC Enterprises has the requisite partnership
power and authority to own, lease and operate its properties and to conduct
its business as it is presently being conducted.
2. The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances or subsequent
repurchases, if any, pursuant to employee benefit or option plans referred to
in the Company's Annual Report on From 10-K for the period ended April 3,
1998, or subsequent repurchases or cancellations, if any, of restricted stock
awards that do not vest upon termination of employment or subsequent
issuances of cash in lieu of fractional shares in connection with the
Continuum acquisition).
3. CSC Limited has been duly organized and is validly existing under
the laws of England and Wales, has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and all resolutions, returns and other documents required by the
Companies Act of 1985 or to be delivered to the Registrar of Companies have
been duly delivered and are true and accurate. All of the issued and
outstanding capital stock of CSC Limited has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of CSC Limited was issued in violation of any
preemptive or similar rights arising by operation of law, or under the
memorandum or articles of association or by-laws of CSC Limited or under any
agreement to which the Company or CSC Limited is a party.
4. Each Designated Subsidiary has been duly organized and is validly
existing as a corporation, in good standing under the laws of the
jurisdiction of its incorporation, has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
B-1
such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect (all such jurisdictions are listed on SCHEDULE II hereto); except as
otherwise disclosed in the Prospectus, all of the issued and outstanding
capital stock of each such Designated Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and (except for CSC
Outsourcing Inc., all of the issued and outstanding capital stock of which is
owned directly or through subsidiaries by CSC Holdings, Inc., all of the
issued and outstanding common stock of which is owned by CSC Enterprises,
which in turn is a partnership in which the Company, directly or through
subsidiaries, has a 99.9% ownership interest) is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Designated Subsidiary was issued in violation
of any preemptive or similar rights arising by operation of law, or under the
charter or by-laws of any Designated Subsidiary or under any agreement to
which the Company or any Designated Subsidiary is a party.
5. The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Securities, and the consummation of the
transactions contemplated in the Underwriting Agreement and in the Prospectus
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds"), and compliance by the Company with its
obligations under the Underwriting Agreement, the Indenture and the
Securities, do not and will not, whether with or without the giving of notice
or lapse of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined in Section 4(o) of the Underwriting Agreement)
under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to any contract, indenture, mortgage, deed of trust,
loan or credit agreement note, lease or any other agreement or instrument,
known to me, to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would
not have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the applicable organizational documents,
charter or by-laws of any of the subsidiaries of the Company.
6. The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which I express no opinion), when they became
effective or were filed with the Securities and Exchange Commission (the
"Commission"), as the case may be, complied as to form in all material
respects with the requirements of the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended, as applicable, and the rules
and regulations of the Commission thereunder.
B-2
7. There are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Prospectus or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by reference
as exhibits thereto, and the descriptions thereof or references thereto are
correct in all material respects.
8. The Company and its subsidiaries possess such Governmental Licenses
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them,
except where the failure to have any such Governmental License would not,
either individually or in the aggregate, have a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply
would not, individually or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
I have participated in conferences with officers and representatives of
the Company, representatives of the independent public accountants for the
Company and the Representatives and their counsel at which the contents of
the Registration Statement and Prospectus and related matters were discussed.
Except as set forth in paragraph 8, I have not undertaken to determine
independently the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus (including, without
limitation, the financial statements, notes thereto, financial statement
schedules, other financial or accounting data included or incorporated by
reference therein or omitted therein or information derived therefrom, as to
which I make no comment), and because of the limitations inherent in the
examination made by me and knowledge available to me and the nature and
extent of my participation in such conferences, except as set forth in
paragraph 8, I am not passing upon and am unable to assume, explicitly or
implicitly, and, except as set forth in paragraph 8, I do not assume, any
responsibility for the accuracy, completeness or fairness of such statements
and I can give no assurance that such examination, knowledge and
participation in such conferences would necessarily reveal matters of
significance with respect to the items discussed in the remainder of this
paragraph. However, based on and subject to the foregoing, nothing has come
to my attention that would lead me to believe that the Registration Statement
(except for financial statements, notes thereto, financial statement
schedules, other financial or accounting data included or incorporated by
reference therein or omitted therefrom or information derived therefrom, as
to which I make no statement), at the time it became effective contained an
untrue statement of a material fact or omitted to state a 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
(except for financial statements, notes thereto, financial statement
schedules, other financial or
B-3
accounting data included or incorporated by reference therein or omitted
therefrom or information derived therefrom, as to which I make no statement),
as of the date of the Prospectus, at the time any such amendment or
supplement thereto was issued or at the Closing Date, contained an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion shall not state that it is to be governed or qualified by,
or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinion, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
B-4
SCHEDULE I
LIST OF UNDERWRITERS
Principal
Underwriters Amount of Notes
------------ ---------------
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
SCHEDULE II
JURISDICTION OF DESIGNATED SUBSIDIARIES
1. CSC Consulting, Inc.
Alabama
Arizona
California
Colorado
Connecticut
Delaware
Florida
Georgia
Illinois
Indiana
Iowa
Kentucky
Maryland
Michigan
Minnesota
Missouri
Nevada
New Jersey
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Xxxxxxxx
Xxxxxxxxxx
Washington DC
West Virginia
Wisconsin
2. CSC Credit Services, Inc.
Florida
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Minnesota
Missouri
Nebraska
New York
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
Virginia
Wisconsin
3. CSC Enterprises, Inc.
Iowa
Kansas
Kentucky
Minnesota
Missouri
North Carolina
North Dakota
Oklahoma
Tennessee
Texas
Virginia
Wisconsin
4. CSC Outsourcing Inc.
Arizona
California
Connecticut
Florida
Maine
Massachusetts
Michigan
Minnesota
Missouri
New Jersey
New York
North Carolina
Ohio
Pennsylvania
Rhode Island
South Carolina
Texas
Utah
Vermont
Virginia
Washington DC
5. CSC Healthcare, Inc.
Alabama
Alaska
Arizona
Arkansas
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Xxxxxxxx
Xxxxxxxxxx
Washington DC
West Virginia
Wisconsin
Wyoming
SCHEDULE III
FURTHER CERTIFICATES AND DOCUMENTS
TO BE DELIVERED BY THE COMPANY
1. A certificate signed by the Secretary of the Company certifying
copies of certain documents.
2. A letter, addressed to the Underwriters, regarding delivery of the
Securities.
3. A receipt acknowledging the receipt of funds.
4. A certified copy of the Restated Articles of Incorporation of the
Company issued and certified by the Secretary of State of the State of Nevada.
5. A Certificate of Good Standing (long form, if available) for the
Company and each Designated Subsidiary, each dated as of a recent date prior
to the Closing Date, issued by the Secretary of State (or other competent
official) of their respective jurisdictions or organization, together with
letters of good tax standing (as available) from the tax authorities of their
respective jurisdictions of organization, each dated as of a recent date
prior to the Closing Date.
6. A certificate issued by the Registrar of Companies, dated as of a
recent date prior to the Closing Date, stating that all required filings have
been made by CSC Computer Sciences Limited.
7. A Registration Certificate of CSC Enterprises as filed with the
Prothonotary of the County of New Castle, Delaware and the Partnership
Agreement of CSC Enterprises.
8. Certificates of qualification to do business, dated as of a recent
date prior to the Closing Date for the Company and each Designated
Subsidiary, issued by the Secretary of State of each state where the Company
and each Designated Subsidiary has its executive offices.
9. A bring-down telegram, dated as of the end of business on the Closing
Date, regarding the good standing in each jurisdiction of organization of the
Company and each Designated Subsidiary.
10. A copy of the DTC Letter of Representations regarding book-entry
clearance of the Global Note through the facilities of DTC.
11. Three letters regarding the rating of the Securities, one from each
of Standard & Poor's Rating Services relating to the "A" rating, one from
Xxxxx'x Investor Services relating to the "A2" rating and one from Duff &
Xxxxxx Credit Rating Co. relating to the "A+" rating.
11. Wire transfer instructions.
12. Order to the Trustee authorizing the authentication of the Securities.
