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Exhibit 1.1
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
DEBT SECURITIES
Underwriting Agreement
_____________, 1997
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Science Applications International Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture") between the
Company and the Trustee identified in such Schedule (the "Trustee"). If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain debt securities (the "Shelf Securities") to be issued from time to time
by the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf
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Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to 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, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 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 which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which 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, on 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 II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities 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, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), on the date and at
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the time and place set forth in Schedule I hereto (or at such other time and
place on the same or such other date, not later than the fifth Business Day (as
defined below) thereafter, as you and the Company may agree in writing). 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. The time and date of
such payment and delivery with respect to the Designated Securities are referred
to herein as the "Closing Date".
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 (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 [-] at the address set forth above not later
than 1:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; 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, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, 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; provided, however, 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) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the
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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;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and none of such
documents 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, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and will 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;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their consol-
idated cash flows for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules
included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and the
pro forma financial information, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable
and is based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
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, management, financial
position, stockholders'
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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; and except as set forth or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a
whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries taken as
a whole;
(f) each of the Company's "significant subsidiaries", as
defined pursuant to Regulation S-X (such subsidiaries, collectively,
the "Material Subsidiaries"), has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable, and (except for directors'
qualifying shares [and except as described in the Prospectus]) are
owned by the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and, when issued
and delivered against payment therefor pursuant to this Agreement, will
have been duly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of
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the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized 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, the Indenture will constitute a valid and binding instrument;
and the Securities and the Indenture will substantially conform to the
descriptions thereof in the Prospectus;
(i) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement,
contract or subcontract or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the Securities and the
performance by the Company of all its obligations under the Securities,
the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement, contract or subcontract or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, except for conflicts, breaches or defaults which individually
and in the aggregate are not material to the Company and its
subsidiaries taken as a whole, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties other than violations of any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, its subsidiaries
or any of their respective properties, which would not, individually
and in the aggregate, have a material adverse effect on the Company and
its subsidiaries taken as a whole; and no consent, approval,
authorization, order, license, registration or qualification of or with
any such court or governmental agency or body 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
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required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened, to
which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or any of its subsidiaries is or may
be the subject which, if determined adversely to the Company or any of
its subsidiaries, would, individually or in the aggregate, have a
material adverse effect on the general affairs, business, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole; and there are no
contracts or other documents that are required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required;
(k) immediately after any sale of Securities by the Company
hereunder, the aggregate amount of Securities which have been issued
and sold by the Company hereunder and of any securities of the Company
(other than the Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the amount of
securities registered under the Registration Statement;
(l) Price Waterhouse LLP, who have certified certain
financial statements of the Company and its subsidiaries, Coopers &
Xxxxxxx L.L.P., who have certified certain financial statements of Xxxx
Communications Research, Inc. and its subsidiaries, and Xxxxx &
Company, Inc., who have certified certain financial statement of the
TransCore Retirement Savings Plan, are each independent public
accountants as required by the Securities Act;
(m) the Company is not and, after giving effect to the
offering and sale of the Securities, 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");
(n) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to
doing business with the Government of Cuba or with any person or
affiliate located in Cuba;
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(o) except as described in the Registration Statement and
Prospectus, there is no tax deficiency which has been or might
reasonably be expected to be asserted or threatened against the Company
or any subsidiary that would have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(p) each of the Company and its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, except for those instances in which the failure to
do so would not, individually and in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole;
except as set forth in the Registration Statement and the Prospectus,
neither the Company nor any subsidiary has received any actual notice
of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except for notices the content of which if accurate
would not, individually and in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole; and each
of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of
the date hereof, except for those instances in which the failure to so
be in compliance, individually and in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(q) each of the Company and its subsidiaries owns, possesses
or has the right to use the Intellectual Property employed by it in
connection with the business conducted by it as of the date hereof,
except for those instances in which the failure to do so would not,
individually and in the aggregate, have a material adverse effect on
the Company and its subsidiaries taken as a whole; and, except as set
forth in the Registration Statement and the Prospectus, neither the
Company nor any subsidiary has received any notice of infringement of
asserted rights of others with respect to any Intellectual Property,
except for notices the content of which if accurate would not,
individually and in the aggregate, have a material adverse effect on
the Company and its subsidiaries taken as a whole; "Intellectual
Property" means all patents, patent applications, trademarks, trademark
applications, service marks, tradenames, copyrights, trade secrets,
know-how (including all unpatented or unpatentable proprietary or
confidential information, systems or procedures), technology,
inventions, designs, processes, methods, technical data and
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information or other intangible asset or any license or other right to
any of the foregoing; and
(r) all contracts and subcontracts from which the Company and
its Material Subsidiaries derive revenue in connection with the
business conducted by them on the date hereof are valid and binding
obligations of the Company and/or one or more of its Material
Subsidiaries, as the case may be, and, to the Company's knowledge, of
the other parties thereto, and, to the Company's knowledge, no party
thereto is, or with the giving of notice or the lapse of time or both
would be, in default thereunder, except in such cases as have not had
and would not have, individually and in the aggregate, a material
adverse effect on the Company and its subsidiaries taken as a whole.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the Prospectus in a form approved by you
pursuant to Rule 424 under the Securities Act not later than
the Commission's close of business on the second Business Day
following the date of determination of the offering price of
the Securities or, if applicable, such earlier time as may be
required by Rule 424(b);
(b) to furnish to each Representative and counsel for
the Underwriters, at the expense of the Company, a signed copy
of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the
period mentioned in paragraph (e) below, to furnish each of
the Underwriters as many copies of the Prospectus (including
all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably
request;
(c) from the date hereof and prior to the Closing
Date, to furnish to you a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus,
for your review, and not to file any such proposed amendment
or supplement (other than one resulting from the filing of any
document under the Exchange Act which you were afforded a
reasonable opportunity, in the light of the circumstances in
which any such filing is made, to comment upon) to which you
reasonably object;
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(d) 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 for so long as the delivery of
a prospectus is required in connection with the offering or
sale of the Securities, and during such same period, to advise
you promptly,(i) when any amendment to the Registration
Statement shall have become effective, (ii) 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, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening of
any proceeding for that purpose, and (iv) 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 notification
and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period after the first date of
the public offering of the Securities as in the opinion of
counsel for the Underwriters 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 you
will furnish to the Company) to which Securities may have been
sold by you 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 U.S.
jurisdictions as you shall reasonably request and to continue
such qualification in effect so long as reasonably required
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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;
(g) to make generally available to its security
holders and to you as soon as practicable an earnings
statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158)
of the Registration Statement;
(h) so long as the Securities are outstanding, to
furnish to the first of the named Representatives on Schedule
I hereto, upon request, copies of all reports or other
communications (financial or other) furnished to holders of
Securities, and copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange;
(i) 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";
(k) 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 payable by
the Company pursuant to any agreement between the Company and
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 U.S. jurisdictions as
the
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Underwriters may designate (including reasonable fees of
counsel for the Underwriters and their disbursements), (iv)
related to any filing with National Association of Securities
Dealers, Inc., (v) in connection with the printing (including
word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental
Blue Sky Memoranda and the furnishing to Underwriters and
dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein
provided, (vii) payable to rating agencies in connection with
the rating of the Securities, (viii) any expenses incurred by
the Company in connection with a "road show" presentation to
potential investors and (ix) the cost and charges of any
transfer agent.
6. The several obligations of the Underwriters hereunder shall
be subject to the following conditions:
(a) 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;
(b) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time
period prescribed for such filing by the rules and regulations
under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending
before or threatened by the Commission; and all requests for
additional information on the part of the Commission made
subsequent to the execution and delivery of this Agreement and
prior to the Closing Date shall have been complied with to
your satisfaction;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given
of (i) any downgrading, (ii) any intended or potential
downgrading or (iii) any review or possible change that does
not indicate an improvement, 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;
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(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 material
adverse change, in or affecting the business, 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 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 or
incorporated by reference 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, acting as an officer of the Company and not
in an individual capacity, reasonably satisfactory to you 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 material
adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole from that set
forth or contemplated in the Registration Statement.
(f) Xxxxx Xxxx & Xxxxxxxx, counsel for the Company,
shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to
the effect set forth in Exhibit A.
In rendering such opinions, such counsel may rely (A)
as to matters involving the application of laws other than the
laws of the United States and the States of Delaware and New
York to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or
opinions (in form
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and substance reasonably satisfactory, and copies of which
shall have been provided, to Underwriters' counsel) of other
counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; (B) as to matters of fact,
to the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or
good standing of the Company. The opinion of such counsel for
the Company shall state that the opinion of any such other
counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and
they are justified in relying thereon. With respect to the
matters to be covered in subparagraph (xi) above counsel may
state their opinion and belief is based upon their
participation in the preparation of the Registration Statement
and the Prospectus and any amendment or supplement thereto but
is without independent check or verification except as
specified.
The opinion of Xxxxx Xxxx & Xxxxxxxx described above
shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(g) Xxxxxxx X. Xxxxx, Senior Vice President and
General Counsel of the Company, shall have furnished to you
his written opinion, dated the Closing Date, in form and
substance satisfactory to you, to the effect set forth in
Exhibit B.
In rendering such opinions, such counsel may rely (A)
as to matters involving the application of laws other than the
laws of the United States and the States of California and
Delaware to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory,
and copies of which shall have been provided, to Underwriters'
counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; (B)
as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company
and certificates or other written statements of public
officials. The opinion of such counsel for the Company shall
state that the opinion of any such other counsel upon which he
relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Underwriters and he are justified in
relying thereon.
(h) on the date hereof and on the Closing Date, Price
Waterhouse LLP and Coopers & Xxxxxxx L.L.P. shall have
furnished to you letters, dated such date, in
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15
form and substance satisfactory to you, 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;
(i) you shall have received on and as of the Closing
Date an opinion of Xxxxxxxx & Xxxxxxxx, 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
(j) on or prior to the Closing Date, the Company
shall have furnished to the Representatives such further
certificates and documents as the Representatives shall
reasonably request.
7. The Company agrees to indemnify and hold harmless
each Underwriter 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
reasonable 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 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 foregoing indemnity
agreement with respect to any untrue statement or omission in the
preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have
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been delivered, at or prior to the written confirmation of the sale of
the Securities to such person, and if such untrue statement or omission
was eliminated or remedied in the Prospectus (as so amended or
supplemented).
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 reason ably 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 representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. 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
expenses shall be reimbursed as they are incurred. Any such separate
firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named
Representatives on Schedule I hereto and any such separate firm for the
Company, its directors, its officers who sign the
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Registration Statement and such control persons of the Company or
authorized representatives 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 as
contemplated by the third sentence of this paragraph, 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 60 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. 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 of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public
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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 any 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 the
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
[PROVIDED THAT THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL
NOT SURVIVE A TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 9],
(ii) any investigation made by or on behalf of any Underwriter or any
person controlling any
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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, the New York Stock Exchange, (ii) trading of
any securities of or guaranteed by the Company, if publicly issued and
traded, 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 or New York 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. 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 under this Agreement, 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, the
other Underwriters shall be obligated severally in the proportions that
the principal amount of Securities set forth opposite their respective
names in Schedule II hereto 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 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, and arrangements satisfactory to you and
the Company for the purchase of such Securities are not made within 36
hours after such default, this Agreement shall terminate without
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liability on the part of any non-defaulting Underwriter or the Company.
In any such case either you 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 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 reasonable fees and expenses
of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of Securities.
11. This Agreement shall inure to the benefit of and
be binding upon the Company, the Underwriters, 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 you jointly or by the first of the named Representatives set
forth in Schedule I hereto alone on behalf of the Underwriters, and any
such action taken by you jointly or by the first of the named
Representatives set forth in Schedule I hereto 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 at the address set forth in
Schedule I hereto. Notices to the Company shall be given to it at 00000
Xxxxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (telecopier:
(619)_______); Attention: J. Xxxxxx Xxxxx.
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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.
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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.
Very truly yours,
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By:______________________________
Name:
Title:
Accepted: __________, 1997
THE REPRESENTATIVES SET FORTH
IN SCHEDULE I HERETO
Acting severally on behalf of themselves and the several
Underwriters listed in Schedule II hereto.
By:
By:___________________________
Name:
Title:
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SCHEDULE I
Representatives:
Underwriting Agreement
dated: _________________________________________
Registration Statement
No.: _________________________________________
Title of Securities: _________________________________________
Aggregate principal
amount: $________________________________________
Price to Public: __% of the principal amount of the
Securities, plus accrued interest, if any,
from _______, 19__ to the Closing Date.
Indenture: Indenture dated as of _________ between the
Company and _____________________ as Trustee.
Maturity: _____________________________________________
Interest Rate: _____________________________________________
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Interest Payment Dates: _____________________________________________
Optional Redemption
Provisions: _____________________________________________
Sinking Fund Provisions: _____________________________________________
Other Provisions: _____________________________________________
Closing Date and
Time of Delivery: _____________________________________________
Closing Location: _____________________________________________
Address for Notices
to Underwriters: _____________________________________________
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SCHEDULE II
Principal Amount
of Securities
Underwriter to be Purchased
----------- ---------------
-------------
TOTAL ...................................................... $
=============
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EXHIBIT A
OPINION OF XXXXX XXXX & XXXXXXXX
PURSUANT TO SECTION 6(f)
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as amended or
supplemented;
(ii) the Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the Securities have been duly authorized, executed and delivered
by the Company and, when duly authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits provided by the Indenture, except (A) as
limited by (x) bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration, if any, and (B) the
availability of equitable remedies may be limited by equitable principles of
general applicability;
(v) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding instrument of the Company; and
the Indenture has been duly qualified under the Trust Indenture Act, except (A)
as limited by (x) bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration, if any, and (B) the
availability of equitable remedies may be limited by equitable principles of
general applicability;
(vi) neither the Company nor any of its Material Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in violation of or
in default under, its
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Certificate of Incorporation or By-Laws or any indenture, mortgage,
deed of trust, loan agreement, contract or subcontract or other
agreement or instrument known to such counsel to which the Company or
any of its Material Subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the Securities and the
performance by the Company of its obligations under the Securities, the
Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, contract
or subcontract or other agreement or instrument known to such counsel
to which the Company or any of its Material Subsidiaries is a party or
by which the Company or any of its Material Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
Material Subsidiaries is subject, nor will any such action result in
any violation of the provisions of the Certificate of Incorporation, or
the By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Material Subsidiaries or any
of their respective properties other than violations of any applicable
law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
Material Subsidiaries or any of their respective properties which would
not, individually and in the aggregate, have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(vii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other 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 and 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
Underwriter;
(viii) the statements (A) in the Prospectus under
"[DESCRIPTIONS OF CREDIT FACILITY AND ANY LEGAL OR REGULATORY
MATTERS]", "Description of Securities" and "Underwriting" and
incorporated by reference from Item 3 of Part 1 of the Company's Annual
Report on Form 10-K for the fiscal year ended January 31, 1997 and (B)
in the Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information
A-2
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called for with respect to such legal matters in all material respects,
documents or proceedings;
(ix) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) complied as to form when filed with the Commission
in all material respects with the Exchange Act, (B) believes that
(except for the financial statements included therein as to which such
counsel need express no belief) each part of the Registration Statement
(including the documents incorporated by reference therein) filed with
the Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, 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 not
misleading, (C) is of the opinion that the Registration Statement and
the Prospectus and any amendments and supplements thereto (except for
the financial statements and related schedules included therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the
Trust Indenture Act and (D) believes that (except for the financial
statements and related schedules included therein as to which such
counsel need express no belief) the Registration Statement and the
Prospectus, on the date of this Agreement, did not contain any 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 not
misleading, and that the Prospectus as amended or supplemented, if
applicable, does not contain any untrue statement of a material fact or
omit 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; and
(x) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" as such terms are defined in the Investment Company Act.
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EXHIBIT B
OPINION OF XXXXXXX X. XXXXX, ESQ.,
PURSUANT TO SECTION 6(g)
(i) each of the Company's Material Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified and in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole; and all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for directors'
qualifying shares [and except as described in the Prospectus)] are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(ii) other than as set forth or contemplated in the
Prospectus, to the best of such counsel's knowledge, there are no legal
or governmental investigations, actions, suits or proceedings pending
or, threatened against or affecting the Company or any of its Material
Subsidiaries or any of their respective properties or to which the
Company or any of its Material Subsidiaries is or may be a party or to
which any property of the Company or its Material Subsidiaries is or
may be the subject which, if determined adversely to the Company or any
of its Material Subsidiaries, would individually or in the aggregate,
have a material adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and such counsel does not know of
any statutes, regulations, contracts or other documents required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required;
(iii) each of the Company and its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other
B-1
30
governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, except for those instances in which the failure to
do so would not, individually and in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole;
except as set forth in the Registration Statement and the Prospectus,
neither the Company nor any subsidiary has received any actual notice
of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except for notices the content of which if accurate
would not, individually and in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole; and each
of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of
the date hereof, except for those instances in which the failure to so
be in compliance, individually and in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(iv) to the best of such counsel's knowledge, each of the
Company and its subsidiaries owns, possesses or has the right to use
the Intellectual Property (as defined in Section 4(s) hereof) employed
by it in connection with the business conducted by it as of the date
hereof; except for those instances in which the failure to do so would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole; and, except as set forth in the Registration
Statement and the Prospectus, neither the Company nor any subsidiary
has received any notice of infringement of asserted rights of others
with respect to any Intellectual Property, except for notices the
content of which if accurate would not, individually and in the
aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole; and
(v) all contracts and subcontracts from which the Company and
its Material Subsidiaries derive revenue in connection with the
business conducted by them on the date hereof are valid and binding
obligations of the Company and/or one or more of its Material
Subsidiaries, as the case may be, and, to the best of such counsel's
knowledge, neither the Company nor any of its Material Subsidiaries,
is, or with the giving of notice or the lapse of time or both would be,
in default thereunder, except in such cases as have not had and would
not have, individually and in the aggregate, a material adverse effect
on the Company and its subsidiaries taken as a whole.
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