ALION SCIENCE AND TECHNOLOGY CORPORATION PURCHASE AGREEMENT
Exhibit 10.82
EXECUTION COPY
$250,000,000
ALION SCIENCE AND TECHNOLOGY CORPORATION
10.25% Senior Notes due 2015
January 26, 2007
Credit Suisse Securities (USA) LLC (“Credit Suisse”),
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Alion Science and Technology Corporation, a Delaware corporation (the
“Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to
Credit Suisse Securities (USA) LLC (the initial “Purchaser”) U.S. $250,000,000 principal amount of
its 10.25% Senior Notes due 2015 (“Offered Securities”) to be issued under an indenture dated
February 8, 2007 (the “Indenture”), among the Company, the Guarantors (as defined below) and
Wilmington Trust Company, as Trustee. The United States Securities Act of 1933, as amended, is
herein referred to as the “Securities Act.”
The Offered Securities will be guaranteed, on a senior and unsecured basis, jointly and
severally by those subsidiaries of the Company listed in the attached Schedule B hereto (the
“Guarantors”).
The holders of the Offered Securities will be entitled to the benefits of a Registration
Rights Agreement of even date herewith among the Company, the Guarantors and the Purchaser (the
“Registration Rights Agreement”), pursuant to which the Company agrees to file a registration
statement with the Securities Exchange Commission (the “Commission”) registering an exchange offer
for, or, in certain circumstances, the resale of, the Offered Securities under the Securities Act.
The Company and the Guarantors, jointly and severally, hereby agree with the Purchaser as
follows:
2. Representations and Warranties of the Company and the Guarantors. The Company and the
Guarantors jointly and severally represent and warrant to, and agree with, the Purchaser that:
(a) A preliminary offering circular (the “Preliminary Offering Circular”)
relating to the Offered Securities to be offered by the Purchaser and a final
offering circular (the “Final Offering Circular”) disclosing the offering price
and other final terms of the Offered Securities and dated the date of this Agreement (even
if finalized and issued subsequent to the date of this Agreement) have been or will be
prepared by the Company. “General Disclosure Package” means the Preliminary Offering
Circular, together with any Issuer Free Writing Communication (as hereinafter defined)
existing at the Applicable Time (as hereinafter defined) and the
information which is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule A to this Agreement (including the term sheet listing
the final terms of the Offered Securities and their offering, included in Schedule D to
this Agreement, which is referred to as the “Terms Communication”). “Applicable Time”
means 11:55 a.m. (EDT time) on the date of this Agreement. As of the date of this
Agreement, the Final Offering Circular does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. At the
Applicable Time neither (i) the General Disclosure Package, nor (ii) any individual
Supplemental Marketing Material (as hereinafter defined), when considered together with
the General Disclosure Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The preceding
two sentences do not apply to statements in or omissions from the Preliminary or Final
Offering Circular, the General Disclosure Package or any Supplemental Marketing Material
based upon written information furnished to the Company by the Purchaser specifically for
use therein, it being understood and agreed that the only such information is that
described as such in Section 8(b) hereof. Except as disclosed in the General Disclosure
Package, on the date of this Agreement, the Company’s Annual Report on Form 10-K most
recently filed with the Securities and Exchange Commission (the “Commission”) and all
subsequent reports (collectively, the “Exchange Act Reports”) which have been filed by the
Company with the Commission or sent to stockholders pursuant to the Securities Exchange
Act of 1934 (the “Exchange Act”) do not include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Except as disclosed on
Schedule 2(a), such documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder.
“Free Writing Communication” means a written communication (as such term is defined in Rule
405 under the Securities Act) that constitutes an offer to sell or a solicitation of an
offer to buy the Offered Securities and is made by means other than the Preliminary
Offering Circular or the Final Offering Circular. “Issuer Free Writing Communication”
means a Free Writing Communication prepared by or on behalf of the Company, used or
referred to by the Company or containing a description of the final terms of the Offered
Securities or of their offering, in the form retained in the Company’s records.
“Supplemental Marketing Material” means any Issuer Free Writing Communication other than
any Issuer Free Writing Communication specified in Schedule E to this Agreement.
(b) The Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other material jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification.
(c) The entities listed on Schedule F to this Agreement are the only direct or
indirect subsidiaries and joint ventures of the Company. Schedule F sets forth the
jurisdiction of organization of each such subsidiary or joint venture. Each subsidiary of
the Company has been duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as described in the
General Disclosure Package; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other material jurisdictions in
which its ownership or lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock
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of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and defects,
except for liens and encumbrances granted in connection with the Guaranty and Collateral
Agreement entered into by the Company in connection with the Company’s Term B Senior
Credit Facility (as hereinafter defined). For purposes of this Agreement, “Term B Senior
Credit Facility” means that certain credit agreement dated as of August 2, 2004, as
amended, among the Company, certain subsidiaries of the company guaranteeing the
Company’s obligations thereunder, the lenders party thereto and Credit Suisse (formerly
known as Credit Suisse First Boston), as administrative agent and as collateral agent for
such lenders. For purposes of this Agreement, “Guaranty and Collateral Agreement” means
the Guarantee and Collateral Agreement dated as of August 2, 2004, as amended, among the
Company, certain of its subsidiaries guaranteeing the Company’s obligations under the Term
B Senior Credit Facility and Credit Suisse (formerly known as Credit Suisse First Boston),
as collateral agent.
(d) The Indenture has been duly authorized by the Company and each of the Guarantors;
the Offered Securities have been duly authorized by the Company; and when the Offered
Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as
defined below), the Indenture will have been duly executed and delivered, such Offered
Securities will have been duly executed, authenticated, issued and delivered, will be
consistent with the information in the General Disclosure Package and will conform to the
description thereof contained in the Final Offering Circular and the Indenture will
constitute a valid and legally binding obligation of the Company and the Guarantors and
such Offered Securities will constitute a valid and legally binding obligation of the
Company, in each case enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person that would give rise to a
valid claim against the Company or any Purchaser for a brokerage commission, finder’s fee
or other like payment.
(f) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement or the Registration Rights Agreement in
connection with the issuance and sale of the Offered Securities by the Company except for
the Exchange Offer Registration Statement, the Shelf Registration Statement, if required,
the order of the Commission declaring effective the Exchange Offer Registration Statement
or, if required, the Shelf Registration Statement (each as defined in the Registration
Rights Agreement) and any necessary state securities filings.
(g) The execution, delivery and performance of the Indenture, this Agreement and the
Registration Rights Agreement, and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
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(h) This Agreement and the Registration Rights Agreement have been duly authorized,
executed and delivered by the Company and the Guarantors.
(i) Except as disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the General Disclosure
Package, the Company and its subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially interfere with the
use made or to be made thereof by them.
(j) The Company and its subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its subsidiaries taken as
a whole (“Material Adverse Effect”).
(k) No labor dispute with the employees of the Company or any subsidiary exists or,
to the knowledge of the Company, is imminent that might have a Material Adverse Effect.
(l) The Company and its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property (collectively,
“intellectual property rights”) necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(m) Except as disclosed in the General Disclosure Package, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or toxic
substances (collectively, “environmental laws”), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any environmental laws, or is subject
to any claim relating to any environmental laws, which violation, contamination, liability
or claim would individually or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to such a claim.
(n) Except as disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or affecting the Company, any of its subsidiaries or
any of their respective properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a Material Adverse Effect,
or would materially and adversely affect the ability of the Company to perform its
obligations under the Indenture, this Agreement, the Registration Rights Agreement, or
which are otherwise material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company’s knowledge,
contemplated.
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(o) The financial statements included in the General Disclosure Package present
fairly in all material respects the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash flows for the
periods shown, and, except as otherwise disclosed in the General Disclosure Package, such
financial statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis; and the
assumptions used in preparing the pro forma financial statements included in the General
Disclosure Package provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the pro forma
columns therein reflect the proper application of those adjustments to the corresponding
historical financial statement amounts.
(p) Except as disclosed in the General Disclosure Package, since the date of the
latest audited financial statements included in the General Disclosure Package
there has been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the General Disclosure Package, there has
been no dividend or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(q) The Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files reports with the Commission
on the Electronic Data Gathering, Analysis, and Retrieval (XXXXX) system.
(r) Neither the Company nor any of the Guarantors is an open-end investment company,
unit investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of 1940 (the
“Investment Company Act”) ; and the Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds thereof as
described in the General Disclosure Package, will not be an “investment company” as
defined in the Investment Company Act.
(s) No securities of the same class (within the meaning of Rule 144A(d)(3) under the
Securities Act) as the Offered Securities are listed on any national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(t) The offer and sale of the Offered Securities in the manner contemplated by this
Agreement will be exempt from the registration requirements of the Securities Act by
reason of Section 4(2) thereof and Regulation S thereunder, and it is not necessary to
qualify an indenture in respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(u) Neither the Company, nor any of its affiliates, nor any person acting on its or
their behalf (i) has, within the six-month period prior to the date hereof, offered or
sold in the United States or to any U.S. person (as such terms are defined in Regulation S
under the Securities Act) the Offered Securities or any security of the same class or
series as the Offered Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities Act or (B) with
respect to any such securities sold in reliance on Rule 903 of Regulation S (“Regulation
S”) under the Securities Act, by means of any directed selling efforts within the meaning
of Rule 902(c) of Regulation S. The Company, its affiliates and any person acting on its
or their behalf have complied and will comply with the offering restrictions
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requirement of Regulation S. The Company has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities
except for this Agreement, the Indenture and the Registration Rights Agreement.
(v) The sale of the Offered Securities pursuant to Regulation S is not part of a plan
or scheme to evade the registration provisions of the Securities Act.
(w) The Alion Science and Technology Corporation Employee Ownership, Savings and
Investment Trust (the “ESOT”) has been duly organized and is a validly existing trust.
Except as disclosed in the General Disclosure Package, each of the ESOP Plan Documents (as
defined herein) is in full force and effect and no term or condition thereof has been
amended, modified or waived from the terms and conditions contained in the ESOP Plan
Documents delivered to the Purchaser, except to the extent such amendment, modification or
waiver could not reasonably be anticipated to have a material adverse effect upon the
Purchaser or otherwise have a Material Adverse Effect. The ESOT has performed and
complied with all the material terms, provisions, agreements and conditions set forth
therein and required to be performed or complied with by the ESOT, and no unmatured
default, default or breach of any covenant by any such party exists thereunder.
(x) The Company has provided the Purchaser with a complete and true copy of each of
the documents pursuant to which the Alion Science and Technology Corporation Employee
Ownership, Savings and Investment Plan (the “ESOP”) and the ESOT are maintained by the
Company, or which concern the Company’s obligations with respect to the ESOP and ESOT,
which are listed in the attached Schedule C hereto, and are referred to herein as the
“ESOP Plan Documents.” The Company has not subsequently amended or in any other way
modified or replaced such ESOP Plan Documents in any material manner without the prior
written consent of the Purchaser, except for any amendment, modification or replacement
required by the Internal Revenue Service or by applicable law (and the Company shall use
its best efforts to deliver a copy of any such amendment, modification or replacement to
the Purchaser prior to the execution thereof).
(y) None of the assets of the Company constitute, for any purpose of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), assets of the
ESOP or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the
Internal Revenue Code.
(z) No non-exempt prohibited transaction described in Section 406 of ERISA or Section
4975 of the Internal Revenue Code has occurred with respect to the ESOP, and none of the
Offered Securities, the Indenture or this Agreement hereunder constitutes or shall
constitute or give rise to any such non-exempt prohibited transaction.
(aa) The ESOP is qualified under Section 401(a) of the Internal Revenue Code, and the
ESOP includes two components, one of which is an employee stock ownership plan as defined
in Section 4975(e)(7) of the Internal Revenue Code, and the other is a profit sharing plan
that includes a cash or deferred compensation arrangement under Section 401(k) of the
Internal Revenue Code.
(bb) To the Company’s knowledge, neither of the Offered Securities nor the Indenture
is (for any purpose of Section 406 of ERISA or Section 4975 of the Internal Revenue Code)
a direct or indirect loan or other transaction between the Purchaser, any such persons to
whom the Purchaser may resell the Offered Securities (“Repurchasers”) and the ESOT which,
if it is assumed that the Purchaser or Repurchasers are “parties in interest” and
“disqualified persons”
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(as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue Code), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of
the Internal Revenue Code.
(cc) Neither the Company nor any of its subsidiaries is or shall be subject to the
tax imposed by Section 4978 of the Internal Revenue Code with respect to any “disposition”
by the ESOT of any shares of equity interests of the Company.
(dd) There is no investigation or review by any Governmental Authority, or action,
suit, proceeding or arbitration, pending or concluded, concerning any matter with respect
to the ESOP or the ESOT relevant as to whether any representation set forth herein is
inaccurate or breached (other than in respect of (i) periodic requests to the IRS to issue
a favorable determination letter to the effect that the ESOP is and continues to be a
qualified plan and an employee stock ownership plan, (ii) Annual Reports (IRS Form 5500
Series) for the ESOP, (iii) routine claims for ESOP benefits and (iv) routine audits of
contributions to the ESOP), and neither the ESOP fiduciary nor, to the best of the
Company’s knowledge, the ESOT trustee has made any assertion with respect to the ESOP or
the ESOT contrary to or inconsistent with the accuracy of any such representation which
assertion could reasonably be expected to have a Material Adverse Effect.
(ee) Neither the ESOP fiduciary nor the ESOT trustee has made any assertion with
respect to the ESOP or the ESOT contrary to or inconsistent with the accuracy of any
representation or warranty set forth herein that could reasonably be expected to result in
a Material Adverse Event.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the Company, at a
purchase price of 97.50% of the principal amount thereof plus accrued interest from February 8,
2007, to the Closing Date (as hereinafter defined), $250,000,000 principal amount of the Offered
Securities.
The Company will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global securities in definitive form (the “Global Securities”)
deposited with the Trustee as custodian for The Depository Trust Company (“DTC”) and registered in
the name of Cede & Co., as nominee for DTC. Interests in any permanent Global Securities will be
held only in book-entry form through DTC, except in the limited circumstances described in the
Final Offering Circular. Payment for the Offered Securities shall be made by the Purchaser in
Federal (same day) funds by official check or checks or wire transfer to an account at a bank
acceptable to the Purchaser drawn to the order of the Company at the office of Xxxxx & XxXxxxxx LLP
at 10:00 A.M. (New York time), on February 8, 2007, or at such other time not later than seven full
business days thereafter that the Purchaser and the Company determine, such time being herein
referred to as the “Closing Date”, against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Securities. The Global Securities will be made available
for checking at the above office at least 24 hours prior to the Closing Date.
4. Representations by Purchaser; Resale by Purchaser. (a) The Purchaser represents and
warrants to the Company that it is an “accredited investor” within the meaning of Regulation D
under the Securities Act.
(b) The Purchaser acknowledges that the Offered Securities have not been registered
under the Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the Securities Act. The Purchaser represents
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and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities (i) as part of its distribution at any time and
(ii) otherwise until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 or Rule 144A under the Securities Act (“Rule 144A”). Accordingly, neither the Purchaser,
nor its affiliates, nor any persons acting on its or their behalf, have engaged or will
engage in any directed selling efforts with respect to the Offered Securities, and the
Purchaser, its affiliates and all persons acting on its or their behalf have complied and
will comply with the offering restrictions requirement of Regulation S. The Purchaser
agrees that, at or prior to confirmation of sale of the Offered Securities, other than a
sale pursuant to Rule 144A, the Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that purchases the
Offered Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the “Securities Act”) and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either case
in accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meanings given to them by
Regulation S.”
Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) The Purchaser agrees that it and each of its affiliates have not entered and will
not enter into any contractual arrangement with respect to the distribution of the Offered
Securities except with the prior written consent of the Company.
(d) The Purchaser agrees that it and each of its affiliates will not offer or sell
the Offered Securities in the United States by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast over
television or radio, or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. The Purchaser agrees, with respect to
resales made in reliance on Rule 144A of any of the Offered Securities, to deliver either
with the confirmation of such resale or otherwise prior to settlement of such resale a
notice to the effect that the resale of such Offered Securities has been made in reliance
upon the exemption from the registration requirements of the Securities Act provided by
Rule 144A.
(e) The Purchaser represents and agrees that (i) it has not offered or sold and prior
to the expiry of a period of six months from the closing date, will not offer or sell any
Offered Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has only communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Xxx 0000 (the “FSMA”))
received by it in connection with the issue or sale of any Offered Securities in
circumstances in which section 21(1) of the FSMA does not apply to the Company or the
Guarantors; and (iii) it has complied and will comply with all applicable provisions of
the FSMA
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with respect to anything done by it in relation to the Offered Securities in,
from or otherwise involving the United Kingdom
5. Certain Agreements of the Company. The Company agrees with the Purchaser that:
(a) The Company will advise the Purchaser promptly of any proposal to amend or
supplement the Preliminary or Final Offering Circular and will not effect such amendment
or supplementation without the Purchaser’s consent, such consent not to be unreasonably
withheld or delayed. If, at any time prior to the completion of the resale of the Offered
Securities by the Purchaser, there occurs an event or development as a result of which any
document included in the Preliminary or Final Offering Circular, the General Disclosure
Package or any Supplemental Marketing Material included or would include an untrue
statement of a material fact or omitted or would omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances prevailing at
such time, not misleading, or if it is necessary at any such time to amend or supplement
the Preliminary or Final Offering Circular, the General Disclosure Package or any
Supplemental Marketing Material to comply with any applicable law, the Company promptly
will notify the Purchaser of such event and promptly will prepare, at its own expense, an
amendment or supplement which will correct such statement or omission or effect such
compliance. Neither the Purchaser’s consent to, nor its delivery to offerees or investors
of, any such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6. The first sentence of this subsection does not apply to
statements in or omissions from any document in the Preliminary or Final Offering
Circular, the General Disclosure Package or any Supplemental Marketing Material made in
reliance upon and in conformity with written information furnished to the Company by the
Purchaser specifically for use therein, it being understood and agreed that the only such
information is that described as such in Section 8(b) hereof.
(b) The Company will furnish to the Purchaser copies of the Preliminary Offering
Circular, each other document comprising a part of the General Disclosure Package, the
Final Offering Circular, all amendments and supplements to such documents and each item of
Supplemental Marketing Material, in each case as soon as available and in such quantities
as the Purchaser reasonably requests, and the Company will furnish to the Purchaser on the
date hereof three copies of each of the foregoing documents signed by a duly authorized
officer of the Company, one of which in the case of the Preliminary Offering Circular and
Final Offering Circular will include the independent accountants’ reports manually signed
(or signed by facsimile to be followed up with a manual signature if requested after the
Closing by Purchaser) by such independent accountants. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or
cause to be furnished to the Purchaser and, upon request of holders and prospective
purchasers of the Offered Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective purchasers of the Offered
Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) in order to permit compliance with Rule 144A in connection with resales
by such holders of the Offered Securities. The Company will pay the expenses of printing
and distributing to the Purchaser all such documents.
(c) The Company will arrange for the qualification of the Offered Securities for sale
and the determination of their eligibility for investment under the laws of such
jurisdictions in the United States and Canada as the Purchaser designates and will
continue such qualifications in effect so long as required for the resale of the Offered
Securities by the Purchaser, provided that the Company will not be required to qualify as
a foreign corporation or to file a general consent to service of process in any such
state.
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(d) During the period of two years after the Closing Date, the Company will, upon
request, furnish to the Purchaser and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the Closing Date, the Company will not, and
will not permit any of its affiliates (as defined in Rule 144 under the Securities Act)
to, resell any of the Offered Securities that have been reacquired by any of them.
(f) During the period of two years after the Closing Date, the Company will not be or
become, an open-end investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the Investment Company
Act.
(g) The Company will pay all expenses incidental to the performance of its
obligations under this Agreement, the Indenture and the Registration Rights Agreement,
including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all
expenses in connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined
in the Registration Rights Agreement), the preparation and printing of this Agreement, the
Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary
Offering Circular, any other documents comprising any part of the General Disclosure
Package, the Final Offering Circular, all amendments and supplements thereto, each item of
Supplemental Marketing Material and any other document relating to the issuance, offer,
sale and delivery of the Offered Securities and as applicable, the Exchange Securities;
(iii) the cost of qualifying the Offered Securities for trading in The PORTALSM
Market (“PORTAL”) and any expenses incidental thereto; (iv) the cost of any advertising
approved by the Company in connection with the issue of the Offered Securities (v) any
expenses (including reasonable fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities or the Exchange Securities for sale under the
laws of such jurisdictions in the United States and Canada as the Purchaser designates and
the printing of memoranda relating thereto (vi) for any fees charged by investment rating
agencies for the rating of the Securities or the Exchange Securities, and (vii) for
expenses incurred in distributing the Preliminary Offering Circular, any other documents
comprising any part of the General Disclosure Package, the Final Offering Circular
(including any amendments and supplements thereto) and any Supplemental Marketing Material
to the Purchaser. The Company will also pay or reimburse the Purchaser (to the extent
incurred by them) for all travel expenses of the Purchaser and the Company’s officers and
employees and any other expenses of the Purchaser and the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered Securities from
the Purchaser.
(h) In connection with the offering, until the Purchaser shall have notified the
Company of the completion of the resale of the Offered Securities, neither the Company nor
any of its affiliates has or will, either alone or with one or more other persons, bid or
purchase for any account in which it or any of its affiliates has a beneficial interest
any Offered Securities or attempt to induce any person to purchase any Offered Securities;
and neither it nor any of its affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the price of, the Offered
Securities.
(i) For a period of 180 days after the date of the initial offering of the Offered
Securities by the Purchaser, the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a registration
statement under the Securities Act (other than as contemplated by the Registration Rights
Agreement) relating to, any United States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one year from the date of
issue. The Company will not at any time offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any
10
securities under circumstances where such offer,
sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2)
of the Securities Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
6. Free Writing Communications. (a) The Company represents and agrees that, unless it
obtains the prior consent of the Purchaser, and the Purchaser represents and agrees that, unless it
obtains the prior consent of the Company, it has not made and will not make any offer relating to
the Offered Securities that would constitute an Issuer Free Writing Communication.
(b) The Company consents to the use by the Purchaser of a Free Writing Communication
that (i) contains only (A) information describing the preliminary terms of the Offered
Securities or their offering or (B) information that describes the final terms of the
Offered Securities or their offering and that is included in the Terms Communication or is
included in or is subsequently included in the Final Offering Circular or (ii) does not
contain any material information about the Company or its securities that was provided by
or on behalf of the Company, it being understood and agreed that any such Free Writing
Communication referred to in clause (i) or (ii) shall not be an Issuer Free Writing
Communication for purposes of this Agreement.
7. Conditions of the Obligation of the Purchaser. The obligation of the Purchaser to purchase
and pay for the Offered Securities will be subject to the accuracy of the representations and
warranties on the part of the Company and the Guarantors herein, to the accuracy of the statements
of officers of the Company and the Guarantors made pursuant to the provisions hereof, to the
performance by the Company and the Guarantors of their obligations hereunder and to the following
additional conditions precedent:
(a) The Purchaser shall have received letters, dated the date of this Agreement, of
Deloitte & Touche LLP and KPMG LLP, in form and substance reasonably satisfactory to the
Purchaser concerning the financial information with respect to the Company set forth in
the General Disclosure Package and the Final Offering Circular.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective change, in
the condition (financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as one enterprise which, in the judgment of the
Purchaser, is material and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g) under
the Securities Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating) or any announcement that the Company has been placed
on negative outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in the
reasonable judgment of the Purchaser, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market, (iv) any material suspension or
material limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange; (v) any banking moratorium
declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements
of securities or clearance services in the United States or (vii) any attack on, outbreak
or escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity or
emergency if, in the judgment of the Purchaser, the effect of any such
11
attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the Offered
`Securities.
(c) The Purchaser shall have received opinions, dated the Closing Date, of Xxxxx &
XxXxxxxx, counsel for the Company, and Xxxxx Xxxxxxx, Esq., General Counsel of the
Company, in each case in form and substance reasonably satisfactory to the Purchaser.
(d) The Purchaser shall have received from Cravath, Swaine & Xxxxx LLP, counsel for
the Purchaser, such opinion or opinions, dated the Closing Date and with reference to same
in the Final Offering Circular, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Final Offering Circular and the General Disclosure
Package, the exemption from registration for the offer and sale of the Offered Securities
by the Company to the Purchaser and the resales by the Purchaser as contemplated hereby
and other related matters as the Purchaser may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) The Purchaser shall have received a certificate, dated the Closing Date, of the
President or any Vice President and a principal financial or accounting officer of the
Company in which such officers shall state that, to the best of their knowledge after
reasonable investigation, the representations and warranties of the Company and the
Guarantors in this Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and that, subsequent to the respective dates of the most
recent financial statements in the General Disclosure Package, there has been
no material adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as set forth in the
General Disclosure Package or as described in such certificate.
(f) Each of the Company and the Guarantors shall have delivered to the Purchaser,
among other documents and certificates as the Purchaser shall reasonably request,
Secretary’s Certificates, dated the Closing Date, with respect to the Company and each of
the Guarantors: (i) certificates of incorporation (ii) by-laws, (iii) resolutions of the
Board of Directors of each entity, (iv) certificates of good standing from the
jurisdiction of incorporation of each such entity and (v) certificates of good standing
and/or qualifications to do business as a foreign corporation in such jurisdictions as the
Purchaser shall reasonably request.
(g) The Company and each of the Guarantors shall have executed the Registration
Rights Agreement and the Indenture, and shall have provided the Purchasers with a copy of
each.
(h) The Purchaser shall have received letters, dated the Closing Date, from each of
Deloitte & Touche LLP and KPMG LLP (to the extent applicable), each of which letters meets
the requirements of subsection (a) of this Section, to the extent applicable, except that
the specified date referred to in such subsection will be a date not more than three days
prior to the Closing Date for the purposes of this subsection.
(i) The Term B Senior Credit Facility shall have been amended to permit the issuance
of $250,000,000 aggregate principal amount of the Offered Securities.
The Company will furnish the Purchaser with such conformed copies of such opinions,
certificates, letters and documents as the Purchaser reasonably requests. The Purchaser may in its
sole
12
discretion waive compliance with any conditions to the obligations of the Purchaser hereunder,
whether in respect of the Closing Date or otherwise.
8. Indemnification and Contribution. (a) The Company and the Guarantors will, jointly and
severally, indemnify and hold harmless the Purchaser, its officers, partners, members, directors
and its affiliates and each person, if any, who controls such Purchaser within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which
the Purchaser may become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact contained
in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication or the Exchange Act Reports, or arise out of
or are based upon the omission or alleged omission to state therein 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 will reimburse the Purchaser for any legal or other expenses reasonably incurred
by the Purchaser in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written information furnished to
the Company by the Purchaser specifically for use therein, it being understood and agreed that the
only such information consists of the information described as such in subsection (b) below.
(b) The Purchaser will indemnify and hold harmless the Company and the Guarantors,
their respective directors and officers and each person, if any, who controls the Company
and the Guarantors within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities to which the Company may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the Preliminary
Offering Circular or the Final Offering Circular, in each case as amended or supplemented,
or any Issuer Free Writing Communication or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by the Purchaser
specifically for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by the Purchaser consists of the following
information in the Preliminary and Final Offering Circular: under the caption “Plan of
Distribution”, the first sentence of the third paragraph and the third sentence of the
ninth paragraph; provided, however, that the Purchaser shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Company’s failure to
perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the failure to notify the indemnifying
party shall not relieve it from any liability that it may have under subsection (a) or (b)
above except to the extent that it has been materially prejudiced (through the forfeiture
of substantive rights or defenses) by such failure; and provided further that the failure
to notify the indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under
13
subsection (a) or (b) above. In case any
such action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes (i) an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in subsection
(a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Purchaser on the other from the offering
of the Offered Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Purchaser on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Purchaser on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Purchaser from the
Company under this Agreement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information supplied
by the Company or the Purchaser and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d), the Purchaser
shall not be required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities purchased by it were resold exceeds the amount of
any damages which the Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(e) The obligations of the Company and the Guarantors under this Section shall be in
addition to any liability which the Company and the Guarantors may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls the
Purchaser within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchaser under this Section shall be in addition to any liability
which the Purchaser may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
14
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers, the
Guarantors or their officers and of the Purchaser set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If for any reason the purchase of the Offered Securities by the
Purchaser is not consummated, the Company and the Guarantors shall remain jointly and severally responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company, the Guarantors and the
Purchaser pursuant to Section 8 shall remain in effect. If the purchase of the Offered Securities
by the Purchaser is not consummated for any reason other than solely because of the occurrence of
any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(b), the Company will
reimburse the Purchaser for all out-of-pocket expenses (including reasonable fees and disbursements
of counsel) reasonably incurred by it in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent to the Purchaser
will be mailed, delivered or telegraphed and confirmed to the Purchaser at Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company or the Guarantors, will
be mailed, delivered or telegraphed and confirmed to them at 0000 Xxxxxx Xxxxxxxxx, XxXxxx,
Xxxxxxxx 00000, Attention: General Counsel.
11. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder, except that holders of Offered Securities
shall be entitled to enforce the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Company as if such holders were parties thereto.
12. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
13. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the Purchaser has been retained solely to act as initial purchaser in connection
with the initial purchase, offering and resale of the Offered Securities and that no
fiduciary, advisory or agency relationship between the Company and the Purchaser has been
created in respect of any of the transactions contemplated by this Agreement or the
Preliminary or Final Offering Circular, irrespective of whether the Purchaser has advised
or is advising the Company on other matters;
(b) the purchase price of the Offered Securities set forth in this Agreement was
established by the Company following discussions and arms-length negotiations with the
Purchaser and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this
Agreement;
(c) the Company has been advised that the Purchaser and its affiliates are engaged in
a broad range of transactions which may involve interests that differ from those of the
Company and that the Purchaser has no obligation to disclose such interests and
transactions to Company by virtue of any fiduciary, advisory or agency relationship; and
(d) the Company waives, to the fullest extent permitted by law, any claims it may
have against the Purchaser for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that the Purchaser shall have no liability (whether direct or indirect) to
the Company in respect of
15
such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
14. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflicts of laws.
The Company and each of the Guarantors hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
16
If the foregoing is in accordance with the Purchaser’s understanding of our agreement,
kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding
agreement between the Company, the Guarantors and the Purchaser in accordance with its terms.
| Very truly yours, ALION SCIENCE AND TECHNOLOGY CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Executive VP and CFO | ||||
| HUMAN FACTORS APPLICATIONS, INC., |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Treasurer | ||||
| ALION-METI CORPORATION, |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Treasurer | ||||
| ALION-CATI CORPORATION, |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Treasurer | ||||
| ALION-JJMA CORPORATION, |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Treasurer | ||||
ALION-BMH CORPORATION, |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Treasurer | ||||
| WASHINGTON CONSULTING, INC., |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Treasurer | ||||
| ALION-MA&D CORPORATION, |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Treasurer | ||||
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse Securities (USA) LLC
| By: | /s/ Xxxxxxx Xxxxx | |||
| Title: Managing Director | ||||
18
SCHEDULE A
General Disclosure Package
General Disclosure Package
| 1. | The Supplement dated January 26, 2007 to the Preliminary Offering Circular. | |
| 2. | Terms Communication. |
19
SCHEDULE B
Subsidiary Guarantors
Subsidiary Guarantors
Human Factors Applications, Inc.
|
Pennsylvania | |
Alion — METI Corporation
|
Xxxxxxxx | |
Xxxxx — CATI Corporation
|
California | |
Alion — JJMA Corporation
|
New York | |
Alion — BMH Corporation
|
Xxxxxxxx | |
Xxxxxxxxxx Consulting, Inc.
|
Xxxxxxxx | |
Xxxxx
— MA&D Corporation
|
Colorado |
20
SCHEDULE C
ESOP Plan Documents
ESOP Plan Documents
| 1. | IRS Determination Letter issued by the U.S. Internal Revenue Service, dated September 11, 2003, and related correspondence |
| 2. | IRS Determination Letter issued by the U.S. Internal Revenue Service, dated August 09, 2005, and related correspondence |
| 3. | Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan, as amended and restated as of December 19, 2001 |
| 4. | First Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 5. | Second Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 6. | Third Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 7. | Fourth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 8. | Fifth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 9. | Sixth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 10. | Seventh Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 11. | Eighth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 12. | Ninth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 13. | Tenth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 14. | Eleventh Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 15. | Twelfth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 16. | Thirteenth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
| 17. | Fourteenth Amendment to the Alion Science and Technology Corporation Employee Ownership, Savings and Investment Plan |
21
SCHEDULE D
Terms Communication
Terms Communication
Issuer: |
Alion Science and Technology Corporation | |
Security Description: |
Senior Unsecured Notes | |
Face: |
$250,000,000 | |
Gross Proceeds: |
$250,000,000 | |
Maturity: |
2/1/2015 | |
Coupon: |
10.25% | |
Offering Price: |
$100.00 | |
Yield to Maturity: |
10.25% | |
Spread to Treasury: |
537 | |
Benchmark: |
4.00% UST due 2/2015 | |
Ratings: |
B3 / CCC+ | |
Interest Payment Dates: |
February 1 and August 1 | |
Commencing: |
8/1/2007 | |
Equity Clawback |
Redeem until 2/1/2010 at 110.25% for up to 35.0% | |
Optional Redemption: |
Callable, on or after the following dates, and at the following prices: |
| Date | Price | |||||
| 2/1/2011 | 105.125% | |||||
| 2/1/2012 | 102.563% | |||||
| 2/1/2013 | 100.000% | |||||
| and thereafter |
Trade Date: |
1/26/2007 | |
Settlement Date: |
2/8/2007 | |
CUSIP: |
144A: 000000XX0 | |
| RegS: X00000XX0 | ||
| ISIN: USU01426AA05 | ||
Minimum Allocations: |
$2,000 | |
Increments: |
$1,000 | |
Gross Spread: |
2.50% | |
Book-Runner: |
Credit Suisse Securities (USA) LLC |
22
SCHEDULE E
Issuer Free Writing Communications
Issuer Free Writing Communications
| 1. | The Supplement dated January 26, 2007 to the Preliminary Offering Circular. |
23
SCHEDULE F
Subsidiary List
Subsidiary List
| Name | Jurisdiction | |||
1.
|
Human Factors Applications, Inc. | Pennsylvania | ||
2.
|
Alion — METI Corporation | Virginia | ||
3.
|
Alion — CATI Corporation | California | ||
4.
|
Alion — JJMA Corporation | New York | ||
5.
|
Alion — BMH Corporation | Virginia | ||
6.
|
Washington Consulting, Inc. | Virginia | ||
7.
|
Alion — MA&D Corporation | Colorado | ||
8.
|
Alion Technical Services Corporation | Virginia | ||
9.
|
Alion Technical Services Corporation | Xxxxxxxx | ||
00.
|
Xxxxx Xxxxxx (XX) Corporation | Delaware | ||
11.
|
Alion — IPS Corporation | Virginia | ||
12.
|
Inovative Technologies Solutions Corporation | New Mexico | ||
13.
|
Alion Science and Technology (Canada) Corporation | Nova Scotia |
24
