EXHIBIT 1.1
$200,000,000
URS CORPORATION
11 1/2% SENIOR NOTES DUE 2009
PURCHASE AGREEMENT
August 14, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. URS Corporation, a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S.$200,000,000 principal amount of its 11 1/2% Senior Notes due
2009 (the "OFFERED SECURITIES"). The Securities (as defined below) will be
unconditionally guaranteed (each, a "GUARANTY") on a senior unsecured basis by
each subsidiary of the Company listed on Schedule B hereto (the "GUARANTORS").
The Offered Securities and the Guaranties will be issued under an indenture,
dated as of August 22, 2002 (the "INDENTURE"), between the Company, the
Guarantors and U.S. Bank National Association, as Trustee. The United States
Securities Act of 1933 is herein referred to as the "SECURITIES ACT".
Holders (including subsequent transferees) of the Offered
Securities will have the registration rights set forth in the registration
rights agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing
Date, in substantially the form of Exhibit I hereto, for so long as such Offered
Securities constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the Company's 11 1/2% Senior Notes
due 2009, and guaranties thereof, in a like aggregate principal amount as, and
identical in all material respects to, the Offered Securities and the Guaranties
and registered under the Securities Act (the "EXCHANGE SECURITIES"), to be
offered in exchange for the Offered Securities (such offer to exchange being
referred to as the "EXCHANGE OFFER") and the Guaranties thereof and (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Offered Securities and to use its best efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. The Offered Securities and the Exchange Securities are referred
to collectively as the "SECURITIES".
Concurrently with the consummation of the issue and sale of the
Offered Securities as set forth herein, the Company will acquire all of the
capital stock of Carlyle-EG&G Holdings Corp. and Xxxx
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Xxxxxxx Services, Inc. (collectively, the "ACQUIRED COMPANIES") (such
transaction being referred to as the "ACQUISITION").
The Company and the Guarantors hereby agree with the several
Purchasers as follows:
2. Representations and Warranties of the Company and the
Guarantors. The Company and the Guarantors represent and warrant to, and agree
with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular dated
August 1, 2002 (the "PRELIMINARY OFFERING CIRCULAR") and offering
circular dated August 14, 2002 (the "OFFERING CIRCULAR"), as amended or
supplemented as of the date of this Agreement, are hereinafter
collectively referred to as the "OFFERING DOCUMENT". The Preliminary
Offering Circular as of its date did not and the Offering Circular as of
the date hereof 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. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon written
information furnished to the Company by any Purchaser through Credit
Suisse First Boston Corporation ("CSFBC") specifically for use therein,
it being understood and agreed that the only such information is that
described as such in Section 7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified would not reasonably be expected to have
a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company, the
Acquired Companies and their subsidiaries taken as a whole (a "MATERIAL
ADVERSE EFFECT").
(c) Each Guarantor 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 Offering
Document, except that Walk Xxxxxx & Associates, Inc. is not in good
standing as of the date hereof as result of a dispute regarding
approximately $5,000 in taxes payable to the State of Louisiana; and
each subsidiary of the Company, each of the Acquired Companies and each
of their subsidiaries is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not reasonably be expected to have a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary of the Company,
each of the Acquired Companies and each of their subsidiaries has been
duly authorized and validly issued and is fully paid and nonassessable;
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects
(except in each case as disclosed in the Offering Document); and the
capital stock of each of the Acquired Companies and each of their
subsidiaries to be owned by the Company, directly or through
subsidiaries, upon consummation of the Acquisition, will be owned free
from liens, encumbrances and defects upon consummation of the
Acquisition (except in each case as disclosed in the Offering Document).
(d) The entities listed on Schedule C hereto will be the only
subsidiaries, direct or indirect, of the Company after giving effect to
the Acquisition.
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(e) The Indenture has been duly authorized by the Company and
will have been authorized and ratified on or before the Closing Date by
each Guarantor; the Offered Securities have been duly authorized by the
Company; the Guaranties will have been duly authorized and ratified by
each Guarantor on or before the Closing Date; 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 by the Company and the Guarantors, such Offered
Securities will have been duly executed, authenticated, issued and
delivered and will conform as to legal matters in all material respects
to the description thereof contained in the Offering Document and
assuming due authorization, execution and delivery of the Indenture by
the Trustee, the Indenture and such Offered Securities and Guaranties
will constitute valid and legally binding obligations of the Company and
each Guarantor, enforceable against the Company and each Guarantor 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.
(f) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(g) On the Closing Date, the Exchange Securities will have been
duly authorized by the Company and the Guarantors; and when the Exchange
Securities are issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange Securities
will be entitled to the benefits of the Indenture and will be the valid
and legally binding obligations of the Company and the Guarantors,
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 and assuming no change in law occurs
after the date hereof that would impact the enforceability of the
Exchange Securities.
(h) The Guaranty of the Exchange Securities by each Guarantor
will have been duly authorized by such Guarantor on or before the
Closing Date and will conform as to legal matters in all material
respects to the description thereof contained in the Offering Document.
When the Exchange Securities have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and
assuming the due authorization, execution and delivery of the Indenture
by the Trustee, the Indenture, the Guaranty of each Guarantor thereof
will constitute valid and legally binding obligations of such Guarantor,
enforceable in accordance with its 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 and assuming no change in law occurs
after the date hereof that would impact the enforceability of the
Guaranties.
(i) The Registration Rights Agreement has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date, will
have been duly executed and delivered by the Company and each of the
Guarantors. When the Registration Rights Agreement has been duly
executed and delivered, and assuming due authorization, execution and
delivery thereof by the Purchasers, the Registration Rights Agreement
will be a valid and binding agreement of the Company and each of the
Guarantors, enforceable against the Company and each Guarantor in
accordance with its terms, except insofar as indemnification and
contribution provisions may be limited by applicable laws and 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. On the Closing Date,
the Registration Rights Agreement
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will conform as to legal matters in all material respects to the
description thereof in the Offering Circular.
(j) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person that would give rise to a valid claim against
the Company, such Guarantor or any Purchaser for a brokerage commission,
finder's fee or other like payment with respect to the transactions
contemplated by this Agreement.
(k) Neither the Company, the Acquired Companies nor any of their
subsidiaries is in violation of its respective charter or by-laws or in
default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the Company, the
Acquired Companies and their subsidiaries, taken as a whole, to which
the Company, the Acquired Companies or any of their subsidiaries is a
party or by which the Company, the Acquired Companies or any of their
subsidiaries or their respective property is bound, except for such
violations that would not reasonably be expected to have a Material
Adverse Effect.
(l) Except for the Registration Rights Agreement and the
Registration Rights Agreement dated as of August 22, 2002 by and among
the Company, Xxxx Strategic Partners, L.P., Xxxx Capital Partners, L.P.,
Carlyle-EG&G, L.L.C. and EG&G Technical Services Holdings, L.L.C., there
are no contracts, agreements or understandings between the Company or
any Guarantor and any person granting such person the right to require
the Company or such Guarantor to file a registration statement under the
Securities Act with respect to any securities of the Company or such
Guarantor or to require the Company or such Guarantor to include such
securities with the Securities and Guaranties registered pursuant to any
Registration Statement.
(m) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
issuance or sale of the Offered Securities and the Guaranties or the
consummation by the Company and the Guarantors of the transactions
contemplated by this Agreement and the Registration Rights Agreement
except such as are required in connection with the filing and
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement as contemplated by the Registration Rights
Agreement and such as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Offered
Securities by the Purchasers, and such as have been obtained under the
Xxxx-Xxxxx-Xxxxxx Act in connection with the Acquisition.
(n) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement by the Company and
each Guarantor, 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, either Acquired Company or any subsidiary
of theirs or any of their properties, or any agreement or instrument to
which the Company, either Acquired Company or any such subsidiary is a
party or by which the Company, either Acquired Company or any such
subsidiary is bound or to which any of the properties of the Company,
either Acquired Company or any such subsidiary is subject, or the
charter or by-laws of the Company, either Acquired Company or any such
subsidiary, except for breaches or violations which would not materially
impair the Company's or any Guarantor's ability to meet its obligations
under the Indenture, this Agreement, the Registration Rights Agreement
and the Offered Securities, 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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(o) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors.
(p) Except as disclosed in the Offering Document, each of the
Company and the Guarantors have good and marketable title to all real
properties and all other properties and assets owned by them that are
material to their business, 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 Offering Document, each of the Company and the
Guarantors hold any leased real or personal property that is material to
their business under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them.
(q) Each of the Company and the Guarantors possess all licenses,
permits, authorizations, certificates or authorities issued by
appropriate governmental agencies or bodies (collectively, "PERMITS")
necessary to conduct the business now operated by them except where the
failure to possess such Permit would not reasonably be expected to have
a Material Adverse Effect and have not received any notice of
proceedings relating to the revocation or modification of any such
Permit that, if determined adversely to the Company and the Guarantors,
would individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
(r) No labor dispute with the employees of the Company, either
Acquired Company or any subsidiary of theirs exists or, to the knowledge
of the Company or any Guarantor, is imminent that would reasonably be
expected to have a Material Adverse Effect.
(s) Each of the Company, the Acquired Companies and their
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, either Acquired
Company or any of their subsidiaries, would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect.
(t) Except as disclosed in the Offering Document, neither the
Company, the Acquired Companies nor any of their subsidiaries is in
violation of any statute, rule, regulation, Permit, decision or order of
any governmental agency, body or court, domestic or foreign, relating to
the generation, use, management, disposal or release of hazardous or
toxic substances, 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 regulated by any environmental laws, is
liable for any on-site or off-site disposal or contamination pursuant to
any environmental laws, or is subject to any claim arising under or
relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect; and neither the Company nor
any Guarantor is aware of any pending or threatened investigation which
might lead to such a claim.
(u) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
either Acquired Company, any of their subsidiaries or any of their
respective properties that, if determined adversely to the Company,
either Acquired Company or any of their subsidiaries, would individually
or in the aggregate reasonably be expected to have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company and the Guarantors to perform their obligations under the
Indenture, this Agreement
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or the Registration Rights Agreement; and to the knowledge of the
Company or any Guarantor, no such actions, suits or proceedings are
threatened or contemplated.
(v) The financial statements and related notes included in the
Offering Document present fairly the financial position of the Company,
the Acquired Companies and their consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the
periods shown, and such financial statements and the notes thereto have
been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis except as
disclosed therein; and the assumptions used in preparing the pro forma
financial statements included in the Offering Document 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.
(w) Except as disclosed in the Offering Document, since the date
of the latest audited financial statements included in the Offering
Document 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, the Acquired Companies and their subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Offering Document, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(x) Neither the Company nor any Guarantor 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 each of the Company and the Guarantors 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 Offering
Document, will not be required to register as an "investment company" as
defined in the Investment Company Act.
(y) Neither the Company, the Acquired Companies nor any of their
subsidiaries nor any agent thereof acting on the behalf of them has
taken, and none of them will take, any action that might cause this
Agreement or the issuance or sale of the Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System.
(z) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has imposed (or has informed the Company or any
Guarantor that it is considering imposing) any condition (financial or
otherwise) on the Company's or any Guarantor's retaining any rating
assigned to the Company or any Guarantor, any securities of the Company
or any Guarantor or (ii) has indicated to the Company or any Guarantor
that it is considering (a) the downgrading, suspension, or withdrawal
of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any
change in the outlook for any rating of the Company, any Guarantor or
any securities of the Company or any Guarantor.
(aa) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities or the
Guaranties are listed on any national securities exchange registered
under Section 6 of the United States Securities Exchange Act of 1934
("EXCHANGE ACT") or quoted in a U.S. automated inter-dealer quotation
system.
(bb) 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
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Section 4(2) thereof and Regulation S thereunder; no registration under
the Securities Act of the Offered Securities or the Guaranties is
required for the sale of the Offered Securities and the Guaranties to
the Purchasers as contemplated hereby or for the resales of the Offered
Securities by the several Purchasers in the manner contemplated by this
Agreement; and, except in connection with the transactions contemplated
by the Registration Rights Agreement, it is not necessary to qualify an
indenture in respect of the Offered Securities under the Trust Indenture
Act, in each case assuming the accuracy of the Purchasers'
representations set forth in Section 4 hereof.
(cc) None of 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 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 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.
(dd) No form of general solicitation or general advertising (as
defined in Regulation D under the Securities Act) was used by the
Company, the Guarantors or any of their respective representatives
(other than the Purchasers, as to whom the Company and the Guarantors
make no representation) in connection with the offer and sale of the
Offered Securities contemplated hereby, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as
the Offered Securities have been issued and sold by the Company within
the six-month period immediately prior to the date hereof.
(ee) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other
than the Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S under the Securities Act
("REGULATION S") with respect to the Offered Securities or the
Guaranties.
(ff) The Offered Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions.
(gg) 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.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Purchasers, and the Purchasers agree, severally and not jointly, to
purchase from the Company, at a purchase price of 94.7108% of the principal
amount thereof, the respective principal amounts of the Offered Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price
the Offered Securities to be purchased hereunder and offered and sold by the
Purchasers in reliance on Regulation S (the "REGULATION S SECURITIES") in the
form of one or more permanent global Securities in registered form
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without interest coupons (the "REGULATION S GLOBAL SECURITIES") which will be
deposited with the Trustee as custodian for The Depository Trust Company ("DTC")
for the respective accounts of the DTC participants for Xxxxxx Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System
("EUROCLEAR"), and Clearstream Banking, societe anonyme ("CLEARSTREAM,
LUXEMBOURG") and registered in the name of Cede & Co., as nominee for DTC. The
Company will deliver against payment of the purchase price the Offered
Securities to be purchased by each Purchaser hereunder and to be offered and
sold by each Purchaser in reliance on Rule 144A under the Securities Act (the
"144A SECURITIES") in the form of one permanent global security in definitive
form without interest coupons (the "RESTRICTED GLOBAL SECURITIES") deposited
with the Trustee as custodian for DTC and registered in the name of Cede & Co.,
as nominee for DTC. The Regulation S Global Securities and the Restricted Global
Securities shall be assigned separate CUSIP numbers. The Restricted Global
Securities shall include the legend regarding restrictions on transfer set forth
under "Transfer Restrictions" in the Offering Document. Until the termination of
the distribution compliance period (as defined in Regulation S) with respect to
the offering of the Offered Securities, interests in the Regulation S Global
Securities may only be held by the DTC participants for Euroclear and
Clearstream, Luxembourg. Interests in any permanent global Securities will be
held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, except in the limited circumstances described in the
Offering Document.
Payment for the Regulation S Securities and the 144A Securities
shall be made by the Purchasers in Federal (same day) funds by official check or
checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the
order of the Company at the office of Xxxxxx Godward LLP at 10:00 A.M., (New
York time), on August 22, 2002, or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "CLOSING DATE", against delivery to the Trustee as
custodian for DTC of (i) the Regulation S Global Securities representing all of
the Regulation S Securities for the respective accounts of the DTC participants
for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global
Securities representing all of the 144A Securities. The Regulation S Global
Securities and the Restricted Global Securities will be made available for
checking at the above office of Xxxxxx Godward LLP at least 24 hours prior to
the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally 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. Each Purchaser severally represents and agrees that it
has offered and sold the Offered Securities, and will offer and sell the
Offered Securities only (i) in offshore transactions in accordance with
Rule 903 or (ii) to persons who it reasonably believes are "qualified
institutional buyers" as defined in Rule 144A under the Securities Act
("RULE 144A"). Accordingly, neither such 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 such 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. Each Purchaser severally
agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, such 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 distribution compliance 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 (the "Securities Act") and may
not be offered or
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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) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or affiliates
of the other Purchasers or with the prior written consent of the
Company.
(d) Each Purchaser severally 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. Each Purchaser severally 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) Each of the Purchasers severally 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 Act 2000 (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
Issuer or any Guarantor; and (iii) it has complied and will comply with
all applicable provisions of the FSMA 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 and the Guarantors. The Company and
the Guarantors agree with the several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which shall not be
unreasonably withheld. If, at any time prior to the completion of the
resale of the Offered Securities by the Purchasers but in no event later
than six months after the date of the Offering Circular, any event
occurs as a result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, the Company promptly will notify CSFBC of
such
10
event and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission. Neither
CSFBC's consent to, nor the Purchasers' 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.
(b) The Company will furnish to CSFBC copies of each of the
Preliminary Offering Circular and the Offering Circular and all
amendments and supplements thereto, in each case as soon as available
and in such quantities as CSFBC reasonably requests. 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 CSFBC
(and, upon request, to each of the other Purchasers) and, upon request
of holders and prospective purchasers of the Offered Securities, to such
holders and prospective 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 Purchasers and any such holders and prospective
purchasers 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 CSFBC reasonably designates in consultation with the
Company and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchasers,
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 or take any action that would subject it to taxation in any
jurisdiction where it is not then so subject.
(d) Upon request, during the period of two years hereafter, the
Company will furnish to CSFBC and to each of the other Purchasers, as
soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year, if any such report is
prepared and circulated; and upon request, the Company will furnish to
CSFBC and to each of the other Purchasers (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFBC, each of the other
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) 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.
(g) During the period of two years after the Closing Date,
neither the Company nor any Guarantor will 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.
(h) The Company and the Guarantors will pay all expenses
incidental to the performance of the obligations of the Company and the
Guarantors 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,
11
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 the Offering Document
and any amendments and supplements thereto, and, as applicable, any
other document relating to the issuance, offer, sale and delivery of the
Exchange Securities; (iii) the cost of listing the Offered Securities
and qualifying the Offered Securities for trading in The Portal(SM)
Market ("PORTAL") and any expenses incidental thereto; (iv) any expenses
(including disbursements of counsel not to exceed $10,000 and filing
fees) 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 CSFBC reasonably
designates and in consultation with the Company and the preparation of
memoranda relating thereto; (vi) any fees charged by investment rating
agencies for the rating of the Offered Securities or the Exchange
Securities; and (vii) any expenses incurred in distributing the Offering
Document (including any amendments and supplements thereto) to the
Purchasers. The Company and the Guarantors will also pay or reimburse
the Purchasers (to the extent incurred by them) for all travel expenses
of the Purchasers and the Company's officers and employees and any other
expenses of the Purchasers and the Company in connection with attending
or hosting meetings with prospective purchasers of the Offered
Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers 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 for 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.
(j) For a period of 90 days after the date of the initial
offering of the Offered Securities by the Purchasers, none of the
Company and its subsidiaries will offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any United States
dollar denominated debt securities issued or guaranteed by any of the
Company or the Guarantors and having a maturity of more than one year
from the date of issue, except for the Exchange Securities to be issued
in connection with the Exchange Offer. None of the Company and its
subsidiaries will at any time offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any 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. Conditions of the Obligations of the Purchasers. The
obligations of the several Purchasers 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 each Guarantor herein in all material respects,
to the accuracy of the statements of officers of the Company and each Guarantor
made pursuant to the provisions hereof, to the performance by the Company and
each Guarantor of its obligations hereunder and to the following additional
conditions precedent:
(a) On or before August 16, 2002, the Purchasers shall have
received letters dated no later than such date, of each of
PricewaterhouseCoopers LLP and Ernst & Young LLP in form and substance
satisfactory to the Purchasers concerning the financial information with
respect to the Company and its subsidiaries and each of the Acquired
Companies and its subsidiaries, respectively, set forth in the Offering
Document and CSFBC shall be satisfied that the financial information as
of the end of and for the most recently ended fiscal quarter of the
Acquired Companies set forth in the Offering Circular does not show,
when compared to the financial information in the Preliminary Offering
Circular, a material deterioration in the financial condition
12
or results of operations of the Company, the Acquired Companies and
their subsidiaries taken as one enterprise.
(b) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, 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, the Acquired Companies and their subsidiaries
taken as one enterprise which, in the judgment of a majority in interest
of the Purchasers including CSFBC, 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 or preferred stock of the Company
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or any
public announcement that any such organization has under surveillance or
review its rating of any debt securities or preferred stock of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating) 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 judgment of a majority in interest of the
Purchasers including CSFBC, 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,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (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 a majority in interest of
the Purchasers including CSFBC, the effect of any such 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 Purchasers shall have received (i) an opinion, dated the
Closing Date, of Xxxxxx Godward LLP, counsel for the Company,
substantially in the form attached hereto as Exhibit II, and (ii)
opinions, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP (New York), Marshall, Hill, Cassas & de Lipkau (Nevada),
Xxxxxxxx Xxxx LLP (Ohio) and Xxx Xxxxxxx & Xxxxxxx (Utah), substantially
in the forms attached hereto as Exhibits III, IV, V and VI,
respectively.
(d) The Purchasers shall have received from Cravath, Swaine &
Xxxxx, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Offering Circular, the exemption
from registration for the offer and sale of the Offered Securities by
the Company to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFBC may
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters with reference to same in the Offering Circular.
(e) The Company and the Guarantors shall have duly executed the
Registration Rights Agreement and the Purchasers shall have received an
original executed copy thereof.
(f) The Purchasers 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 and
13
the President, any Vice President or a principal financial or accounting
officer of each Guarantor in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the
representations and warranties of the Company and the Guarantors, as
appropriate, in this Agreement are true and correct in all material
respects, that the Company and the Guarantors, as appropriate, have in
all material respects complied with all agreements and satisfied in all
material respects all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date, and that,
subsequent to the date of the most recent financial statements in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Offering Document or as described
in such certificate.
(g) The Purchasers shall have received a letter, dated the
Closing Date, of each of Ernst & Young LLP and PricewaterhouseCoopers
LLP which meets the requirements of subsection (a) of this Section,
except that the specified date referred to in such subsection will be a
date not more than three days prior to the Closing Date for the purposes
of this subsection.
(h) All conditions to closing of the Acquisition shall have been
satisfied or waived and the Acquisition shall have been consummated or shall be
consummated concurrently with the purchase and payment for the Offered
Securities.
The Company and the Guarantors will furnish the Purchasers with
such conformed copies of such opinions, certificates, letters and documents as
the Purchasers reasonably request. CSFBC may in its sole discretion waive on
behalf of the Purchasers compliance with any conditions to the obligations of
the Purchasers hereunder.
7. Indemnification and Contribution. (a) Each of the Company and
the Guarantors will indemnify and hold harmless each Purchaser, its partners,
directors and officers 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 such 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 breach of any of the representations
and warranties of the Company or the Guarantors contained herein or any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, 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, including 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, and
will reimburse each Purchaser for any legal or other expenses reasonably
incurred by such 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 and the Guarantors will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through CSFBC 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, and with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from the Preliminary Offering
Circular, the indemnity agreement contained in this Section 7(a) shall not inure
to the benefit of any Purchaser (or any partner, director or officer of such
Purchaser or any person who controls such Purchaser) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
concerned in any initial resale of the Securities by such Purchaser, to the
extent that any such loss, claim, damage or liability occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction that (A) the untrue statement or alleged untrue statement in or
omission or alleged omission from the Preliminary
14
Offering Circular was corrected in the Offering Circular, (B) the Company had
previously furnished copies of the Offering Circular to the Purchasers and (C)
the person asserting such loss, claim, damage or liability was not sent or given
a copy of the Offering Circular at or prior to the written confirmation of the
sale of such Securities.
(b) Each Purchaser will severally and not jointly indemnify and
hold harmless the Company, each Guarantor, their directors and officers
and each person, if any, who controls the Company or any Guarantor
within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities to which the Company or any such
Guarantor 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 Offering Document, or any amendment or supplement
thereto, 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 such Purchaser
through CSFBC specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company or any Guarantor in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser
consists of the following information in the Offering Document: each of
the Purchaser's names and the third, sixth, ninth, eleventh and twelfth
paragraphs, and the table in the first paragraph under the caption "Plan
of Distribution"; provided, however, that the Purchasers 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 omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above unless and to the extent the indemnifying
party did not otherwise learn of such claim and such omission results in
the forfeiture by the indemnifying party of substantial rights or
defenses or the indemnifying party is otherwise materially prejudiced by
such omission. 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, provided,
that if any such indemnified party reasonably determines that
representation of such indemnifying party and the indemnified party by
the same counsel would present a conflict of interest, then such counsel
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. No indemnifying party shall, without the prior written consent
of the indemnified party (which consent shall not be unreasonably
withheld or delayed), effect any settlement of , or compromise, or
consent to the entry of any judgment with respect to, 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. No
15
indemnified party shall effect any settlement or compromise of, or
consent to the entry of any judgment with respect to, any claim 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 and
the indemnifying party shall have no liability hereunder therefor,
without the prior written consent of the indemnifying party, which
consent shall not be unreasonably withheld or delayed. In no event will
any indemnifying party be liable for fees and disbursements of more than
one counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general obligations or
circumstances.
(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 Purchasers 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
Purchasers 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 Purchasers 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 Purchasers
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 Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Purchaser shall be required to contribute any
amount in excess of the amount by which the total discounts, fees and
commissions received by such Purchaser exceeds the amount of any damages
which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
The Purchasers' obligations in this subsection (d) to contribute are
several in proportion to their respective purchase obligations and not
joint.
(e) The obligations of the Company and each Guarantor under this
Section shall be in addition to any liability which the Company and each
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within
the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to
any liability which the respective Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls the Company or any Guarantor within the meaning of the
Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default
in their obligations to purchase Offered Securities hereunder and the aggregate
principal amount Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal amount
Offered Securities, CSFBC may make arrangements satisfactory to the Company for
the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to
16
their respective commitments hereunder, to purchase the Offered Securities that
such defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to CSFBC
and the Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 9. As used in this Agreement, the term "Purchaser"
includes any person substituted for a Purchaser under this Section. Nothing
herein will relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and each Guarantor or their officers and of the
several Purchasers set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Purchaser, the Company, any
Guarantor 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
Purchasers is not consummated, each of the Company and each Guarantor shall
remain 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
Purchasers pursuant to Section 7 shall remain in effect. If the purchase of the
Offered Securities by the Purchasers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(b), the Company and the Guarantors will reimburse the
Purchasers for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Purchasers will be mailed, delivered or telegraphed and confirmed
to the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Transactions Advisory Group,
or, if sent to the Company or the Guarantors, will be mailed, delivered or
telegraphed and confirmed to it at URS Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxx Xxxxxx; provided,
however, that any notice to a Purchaser pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Purchaser.
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 7, 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. Representation of Purchasers. CSFBC will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by CSFBC will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17
The Company and 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.
If the foregoing is in accordance with the Purchasers'
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 several Purchasers in accordance with its terms.
Very truly yours,
URS CORPORATION, a Delaware corporation
by
---------------------------------
Name:
Title:
AMAN ENVIRONMENTAL CONSTRUCTION,
INC., a California corporation
by
---------------------------------
Name:
Title:
BANSHEEE CONSTRUCTION COMPANY, INC.,
a California corporation
by
---------------------------------
Name:
Title:
BRW, INC., a Wyoming corporation
by
---------------------------------
Name:
Title:
CLEVELAND WRECKING COMPANY, a
California corporation
by
---------------------------------
Name:
Title:
CONTRACTING RESOURCES INTERNATIONAL,
INC., a Delaware corporation
by
---------------------------------
Name:
Title:
X'XXXXX-XXXXXXXXXX INC., a California
corporation
by
---------------------------------
Name:
Title:
RADIAN INTERNATIONAL LLC, a Delaware
limited liability company
by
---------------------------------
Name:
Title:
SIGNET TESTING LABORATORIES, INC., a
Delaware corporation
by
---------------------------------
Name:
Title:
URS CONSTRUCTION SERVICES, INC., a
Florida corporation
by
---------------------------------
Name:
Title:
URS CORPORATION, a Nevada corporation
by
---------------------------------
Name:
Title:
URS CORPORATION GREAT LAKES, a
Michigan corporation
by
---------------------------------
Name:
Title:
URS CORPORATION GROUP CONSULTANTS,
a New York corporation
by
---------------------------------
Name:
Title:
URS CORPORATION--MARYLAND, a
Maryland corporation
by
---------------------------------
Name:
Title:
URS CORPORATION -- OHIO, a
Ohio corporation
by
---------------------------------
Name:
Title:
URS CORPORATION SOUTHERN, a California
corporation
by
---------------------------------
Name:
Title:
URS GROUP, INC., a Delaware corporation
by
---------------------------------
Name:
Title:
URS HOLDINGS, INC., a Delaware
corporation
by
---------------------------------
Name:
Title:
URS-LSS HOLDINGS, INC., a Delaware
corporation
by
---------------------------------
Name:
Title:
URS OPERATING SERVICES, INC., a
Delaware corporation
by
---------------------------------
Name:
Title:
WALK XXXXXX & ASSOCIATES, INC., a
Louisiana corporation
by
---------------------------------
Name:
Title:
EG&G TECHNICAL SERVICES, INC., a
Delaware corporation
by
---------------------------------
Name:
Title:
EG&G DEFENSE MATERIALS, INC., a Utah
corporation
by
---------------------------------
Name:
Title:
URS INTERNATIONAL, INC., a Delaware
corporation
by
---------------------------------
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
by
-----------------------------
Name:
Title:
Acting on behalf of itself
and as the Representative
of the several Purchasers
SCHEDULE A
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
------- -------------------
Credit Suisse First Boston Corporation ..... $ 81,650,000
Xxxxx Fargo Securities, LLC ................ $ 81,650,000
BNP Paribas Securities Corp. ............... $ 12,802,000
The Royal Bank of Scotland plc ............. $ 12,802,000
BMO Xxxxxxx Xxxxx Corp. .................... $ 7,682,000
ING Financial Markets LLC .................. $ 3,414,000
-------------------
Total ................ $200,000,000
===================
SCHEDULE B
Aman Environmental Construction, Inc.
Banshee Construction Company, Inc.
BRW, Inc.
Cleveland Wrecking Company
Contracting Resources International, Inc.
EG&G Defense Materials, Inc.
EG&G Technical Services, Inc.
X'Xxxxx-Xxxxxxxxxx Inc.
Radian International LLC
Signet Testing Laboratories, Inc.
URS Construction Services, Inc.
URS Corporation
URS Corporation Great Lakes
URS Corporation Group Consultants
URS Corporation-Maryland
URS Corporation - Ohio
URS Corporation Southern
URS Group, Inc.
URS Holdings, Inc.
URS International, Inc.
URS-LSS Holdings, Inc.
URS Operating Services, Inc.
Walk, Xxxxxx & Associates, Inc.
SCHEDULE C
Subsidiary Place of Formation
---------- -------------------
Aman Environmental Construction, Inc. CA
Banshee Construction Company, Inc. CA
BRW, Inc. DE
BRW/Xxxxxxx & Erdal of Ohio OH
Clay Street Properties CA
Cleveland Wrecking Company CA
Xxxx Xxxxxxx, Inc. DE
Contracting Resources International, Inc. XX
Xxxxxxxxx & Xxxxxxxx NY
D & M Consulting Engineers DE
Dames & Xxxxx Group (NY), Inc. NY
E.C. Driver & Associates, Inc. FL
Geotesting Services, Inc. CA
X'Xxxxx-Xxxxxxxxxx Inc. CA
Professional Insurance Limited Bermuda
Radian Engineering Inc. NY
Radian International LLC DE
Signet Testing Laboratories, Inc. DE
URS Architects/Engineers, Inc. NJ
URS Construction Services, Inc. FL
URS Corporation NV
URS Corporation - New York NY
URS Corporation - North Carolina NC
URS Corporation AES. CT
URS Corporation Architecture NC PC NC
URS Corporation Corporation Design, Inc. OH
URS Corporation Great Lakes MI
URS Corporation Group Consultants NY
URS Corporation Services PA
URS Corporation Southern CA
URS Corporation - Maryland MD
URS Corporation - Ohio OH
XXX Xxxxxxx Xxxxxxxx-Xxxxx Consultants, Inc. NY
URS Group, Inc. DE
URS Holdings, Inc. DE
URS International, Inc. DE
URS-LSS Holdings, Inc. DE
URS Operating Services, Inc. DE
URS P.C. DC
Walk Xxxxxx & Associates, Inc. LA
Subsidiary Place of Formation
---------- -------------------
ADB Xxxxxxxx Cyprus
BCP (1994) Ltd. Scotland
Xxxxx Xxxxxxxxx & Ptrs Ltd. Scotland
Bricolpar UK
Building Health Consultants UK
Business Risk Strategies Australia
Xxxx & Xxxxxxx & Associates (Ontario) Canada
Xxxx & Xxxxxxx & Engineers & Architects, Inc. Canada
Colquhoun Building Services UK
Colquhoun Transportation Planning UK
Conquhoun Computing UK
D & M Argentina S.A. Argentina
D & M BVI Ltd. Taiwan
D & M De Mexico Mexico
D & M Ltda. Chile
D & M Malaysia Sdn Bhd Malaysia
D & M Pty Ltd. Co. Managing Trustee Australia
D & M Servicios De Mexico Mexico
D & M Singapore Singapore
D & M Zuid B.V. Netherlands
Dames & Xxxxx (PNG) Ltd.
Dames & Xxxxx Bolivia SA Bolivia
Dames & Xxxxx Canada, Inc. Canada
Dames & Xxxxx FSC, Inc. Bermuda
Dames & Xxxxx Trust Australia
DMG Consulting Ltd. UK
Ensphere (UK) Scotland
Food & Agriculture International Ltd. UK
URS Forestry Pty Ltd. Australia
Fortech Finance Australia
Xxxxxxx Engineering Ltd. Hong Kong
Xxxxxxx FSC, Inc. Barbados
Xxxxxxx International Ltd. Hong Kong
Xxxxxxx International Ltd. Thailand
Xxxxxxx Limited Hong Kong
Grove & Xxxxxx UK
Grove & Xxxxxx West UK
Hoisting Systems Pty Ltd. Australia
Xxxxxxxxxxxxx D & M Pty Ltd. Australia
International Ag Trustee Australia
International Agriculture Trust Australia
Xxxxxx-North Solomon Islands Ltd. Solomon Islands
Norecol Dames & Xxxxx, Inc. (Ontario) Canada
OBK Asia Pacific Ltd. Hong Kong
O'Xxxxx Xxxxxxxxxx Ltd. UK
Professional Insurance Ltd. Bermuda
PT Dames & Xxxxx Indonesia
PT URS Indonesia
Radian Environmental GmbH Germany
Radian International N.V. Netherlands
Radian International Pty Ltd. Australia
Subsidiary Place of Formation
---------- -------------------
Radian International S.A. Argentina
Radian S.E.A. Ltd. Thailand
Saudi Arabian Dames & Xxxxx Saudi Arabia
Services Document Reproduction UK
TC Consultoras Portugal
TCC Sp.zoo Poland
Technologias Y Serv. Ambient. Tesam SA Chile
Xxxxxxxx Xxxxxxxxx Ireland
Xxxxxxxx Colquhoun Environmental Scotland
Xxxxxxxx Xxxxxxxxx International Scotland
Xxxxxxxx Colquhoun Overseas Cyprus
Xxxxxxxx Xxxxxxxxx Services Cyprus
Xxxxxxxx Colquhoun Transportation Scotland
Xxxxxxxx Xxxxxxxxx Trustees Scotland
Xxxxxxxx Holdings Ltd. Ireland
Xxxxxxxx Investments Scotland
Xxxxxxxx Middle East Ltd. Cyprus
Thornburn Xxxxx Scotland
Total Data Management Scotland
URS Australia Pty Ltd. Australia
URS Caribe LLP Puerto Rico
URS Consulting Singapore
URS Consulting Pty Ltd. Australia
URS Corporation Ltd. Scotland
URS Dames & Xxxxx SRL Italy
URS Espana S.L. Spain
URS Europe Ltd. UK
URS France France
XXX Xxxxxxx Sdn Bhd Malaysia
URS Hong Kong Limited Hong Kong
URS Limited Thailand
URS Netherlands B.V. Netherlands
URS New Zealand Ltd. New Zealand
URS Philippines, Inc. Philippines
URS Stategic Issues Management Pty. Ltd. Australia
XXX Xxxxxxxx Xxxxxxxxx Holdings Ltd. Scotland
URS Verfication Ltd. UK
URSG Puerto Rico Puerto Rico
Walk Xxxxxx Arabia, Ltd. Saudi Arabia
WC Geo-Services Malaysia
WCI Umwelttechnik Germany
Xxxxxxxx Xxxxx Limited UK
Xxxxxxxx Xxxxx Sdn Bhd Malaysia
EG&G Technical Services, Inc. DE
EG&G Defense Materials, Inc. UT
Xxxx Xxxxxxx Services, Inc. XX
Xxxx Xxxxxxx Logistics International XX
Xxxx Xxxxxxx International Cayman
Antarctic Support Associates
Xxxx Xxxxxxx Management Services
Carlyle EG&G Holdings Corp. DE
EXHIBIT I
[Form of Registration Rights Agreement]
EXHIBIT II
[Form of Xxxxxx Godward LLP Opinion]
EXHIBIT III
[Form of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP Opinion]
EXHIBIT IV
[Form of Marshall, Hill, Cassas & de Lipkau Opinion]
EXHIBIT V
[Form of Xxxxxxxx Xxxx LLP Opinion]
EXHIBIT VI
[Form of Xxx Xxxxxxx & Xxxxxxx Opinion]
