DynCorp International LLC DIV Capital Corporation 9.500% Senior Subordinated Notes due 2013 Purchase Agreement
Exhibit 1.1
Execution Version
DIV Capital Corporation
9.500% Senior Subordinated Notes due 2013
July 14 , 2008
| Wachovia Capital Markets, LLC | ||
| Xxxxxxx, Xxxxx & Co., | ||
| As Representatives of the Purchasers | ||
c/o
|
Wachovia Capital Markets, LLC | |
| One Wachovia Center | ||
| 000 Xxxxx Xxxxxxx Xxxxxx | ||
| Xxxxxxxxx, XX 00000-0000 | ||
Ladies and Gentlemen:
DynCorp International LLC, a Delaware limited liability company (the “Company”), and DIV
Capital Corporation, a wholly-owned subsidiary of the Company with nominal assets that conducts no
operations (“DIV Capital,” and together with the Company, the “Issuers”), propose, subject to the
terms and conditions stated herein, to issue and sell to the Purchasers named in Schedule I hereto
(the “Purchasers”) an aggregate of $125,000,000 principal amount of the 9.500% Senior Subordinated
Notes due 2013, specified above (the “Securities”). The Securities will be unconditionally
guaranteed as to the payment of principal, premium and interest (including special interest, if
any) (the “Guarantees”), by the parties listed in Schedule II hereto (each a “Guarantor,” and
collectively, the “Guarantors”).
The Company, Wachovia Bank, National Association and the other lenders and guarantors party
thereto will enter into a Credit Agreement (the “Credit Facility”), pursuant to which the Company
will borrow $200.0 million to refinance and terminate the Company’s existing Credit Agreement dated
as of February 11, 2005 (the “Refinancing”). The issue and sale of the Securities, the closing
under the Credit Facility and the Refinancing will take place concurrently, and the Refinancing
will be a condition to the consummation of this offering. As described in the Offering Memorandum
(as defined herein), proceeds from the issuance and sale of the Securities, together with
borrowings under the Credit Facility and cash on hand, will be used to complete the Refinancing and
to pay related transaction fees and expenses.
The Securities will be issued as additional debt securities under the Indenture (as defined
herein) pursuant to which the Issuers have previously issued $320,000,000 in aggregate principal
amount of their 9.500% Senior Subordinated Notes due 2013, of which $292,032,000 in aggregate
principal amount are currently outstanding (the “Outstanding Securities”). The Securities and the
Outstanding Securities will be treated as a single class of debt securities under the Indenture.
1. As used in this Agreement:
(a) "Applicable Time” means 4:15 p.m. (New York City time) on the date of this Agreement; and
(b) "Pricing Disclosure Supplement” means the summary of the terms of the Securities dated the
date of this Agreement and attached hereto as Schedule III.
2. The Securities will be offered, issued and sold to the Purchasers without registration
under the Securities Act of 1933, as amended (the “Act”), in reliance on an exemption pursuant to
Section 4(2) under the Act. At or prior to the Applicable Time, the Issuers and the Guarantors
shall have prepared a preliminary offering memorandum dated July 14, 2008 (including the Form 10-K
for the fiscal year ended March 28, 2008 attached as Annex A thereto (the “10-K Report”), the
"Preliminary Offering Memorandum”), and the Pricing Disclosure Supplement. Except as provided in
the last sentence of this paragraph, as used herein, “Offering Memorandum” shall mean the
Preliminary Offering Memorandum as supplemented by the Pricing Disclosure Supplement. Promptly
after the Applicable Time and in any event no later than the second business day following the
Applicable Time, the Issuers and the Guarantors will prepare an offering memorandum dated the date
hereof (including the 10-K Report, the “Final Offering Memorandum”). The Issuers and the
Guarantors hereby confirm that they have authorized the use of the Preliminary Offering Memorandum,
the Pricing Disclosure Supplement and the Final Offering Memorandum in connection with the offering
and resale of the Securities by the Purchasers. From and after the time the Final Offering
Memorandum is prepared, all references herein to the Offering Memorandum shall be deemed to be a
reference to both the Preliminary Offering Memorandum and the Final Offering Memorandum.
3. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to,
and agrees with, each of the Purchasers that:
(a) The Offering Memorandum, as of the Applicable Time, does not, and at the Time of Delivery
(as defined herein) will not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in conformity
with information relating to the Purchasers furnished in writing to the Issuers by a Purchaser
through Wachovia Capital Markets, LLC expressly for use therein;
(b) Neither Issuer (including its agents and representatives, other than the Purchasers in
their capacity as such) has prepared, made, used, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any written communication that constitutes an
offer to sell or solicitation of an offer to buy the Securities (each such communication by an
Issuer or its agents and representatives (other than a communication referred to in clause (i)
below) an “Issuer Written Communication”) other than (i) the Offering Memorandum and (ii) any
electronic road show or other written communications, in each case used in accordance with Section
7(o). Each such Issuer Written Communication does not conflict with the information contained in
the Offering Memorandum and, when taken together with the Offering Memorandum as of the Applicable
Time, did not, and at the Time of Delivery (as defined herein) will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Issuers and Guarantors make no representation and warranty with respect to any
statements or omissions made in any Issuer Written Communication in reliance upon and in conformity
with information relating to any Purchaser furnished in writing to the Issuers by a Purchaser
through Wachovia Capital Markets, LLC expressly for use therein;
(c) Neither the Company nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included in the Offering Memorandum any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Memorandum; and, since the respective dates as of
which information is given in the Offering Memorandum, there has not been any change in the capital
stock or other equity interests or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, members’ equity or results of
operations of the Company and its subsidiaries, other than as set forth in the Offering Memorandum;
(d) Each of the Issuers has all requisite limited liability company or corporate power, as the
case may be, and authority to execute, deliver and perform its obligations under this Agreement,
the Indenture, the Registration Rights Agreement (as defined herein) and the Securities; DIV Capital has
conducted no business prior to the date hereof other than in connection with the offering and sale
of the Outstanding Securities and the transactions contemplated by this Agreement and the Offering
Memorandum;
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(e) Each Guarantor has all requisite limited liability company or corporate power, as the case
may be, and authority to execute, deliver and perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement and the Guarantees;
(f) Each of the Company’s subsidiaries that is formed under the laws of the United States or
any state of the United States or the District of Columbia is named as a Guarantor under this
Agreement and will be, as of the Time of Delivery, a guarantor of the Securities;
(g) Other than as disclosed in the Offering Memorandum, neither of the Issuers owns capital
stock or other equity interests of any corporation or entity other than the Guarantors, which would
be required by the Indenture to be a Guarantor thereunder;
(h) The Company and its subsidiaries have good and marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and defects except such as
are described in the Offering Memorandum or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as would not individually or in the aggregate have a material adverse effect on the
business, prospects, condition (financial or otherwise), earnings or results of operations of the
Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”) and do not materially
interfere with the use made and proposed to be made of such property and buildings by the Company
and its subsidiaries;
(i) Neither the Company nor any of its subsidiaries owns any real property;
(j) Each of the Issuers has been duly organized and is validly existing as a limited liability
company or corporation, as applicable, and is in good standing under the laws of the Delaware, with
limited liability company or corporate power, as applicable, with authority to own or lease its
properties and conduct its business as described in the Offering Memorandum, and has been duly
qualified as a foreign corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction, except where the failure to be so
qualified or in good standing in any such jurisdiction would not individually or in the aggregate,
result in a Material Adverse Effect; and each subsidiary of the Company has been duly organized and
is validly existing as an entity in good standing under the laws of its jurisdiction of
organization;
(k) The Company has a capitalization as set forth in the Offering Memorandum, the Company is a
wholly-owned subsidiary of DynCorp International Inc., a Delaware corporation, DIV Capital is a
wholly-owned subsidiary of the Company and all of the issued equity interests of the Company are
duly and validly authorized and issued and fully paid and non-assessable; and all of the issued
shares of capital stock or other equity interests of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and (except for directors’
qualifying shares) are owned directly or indirectly by the Company, and are free and clear of all
liens, encumbrances, equities or claims except for the Company’s existing credit facility and the
Credit Facility or where the existence of such liens, encumbrances or claims would not have a
Material Adverse Effect;
(l) The Securities have been duly authorized and, when issued and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Issuers entitled to the benefits provided by the
indenture dated as of February 11, 2005, as supplemented (the “Indenture”) between the Issuers and
The Bank of New York, as Trustee (the “Trustee”), under which they are to be issued; the Indenture
has been duly authorized and constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’ rights
and except as enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); the Indenture conforms, and the
Securities will conform at the Time of Delivery, to the descriptions thereof in the Offering
Memorandum in all material respects; the Indenture is, and the Securities will be, in substantially
the form previously delivered to you;
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(m) This Agreement has been duly authorized, executed and delivered by DIV Capital, the
Company and the Guarantors;
(n) The Guarantees have been duly authorized by each of the Guarantors, and when issued and
delivered by the Guarantors, were duly executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of such Guarantors, entitled to the benefits provided by the
Indenture and the Guarantees are substantially in the form previously delivered to you as an
exhibit to the Indenture, and are enforceable against them in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors’ rights and except as enforcement thereof
is subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(o) The exchange and registration rights agreement, to be dated the Time of Delivery, among
the Issuers, the Guarantors and the Purchasers (the “Registration Rights Agreement”) has been duly
authorized by each of the Issuers and the Guarantors;
(p) The Exchange Securities (as defined herein) have been duly authorized for issuance by each
of the Issuers, and when executed, authenticated, issued and delivered pursuant to this Agreement,
the Indenture and the Registration Rights Agreement, will constitute valid and legally binding
obligations of the Issuers, entitled to the benefits provided by the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors’ rights and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law);
(q) The guarantees of the Issuers’ obligations under the Exchange Securities (the “Exchange
Guarantees”) to be offered in exchange for the Guarantees in the Exchange Offer (as defined herein)
have been duly authorized by each of the Guarantors, and, when duly executed, issued and delivered,
will constitute valid and legally binding obligations of such Guarantors, entitled to the benefits
provided by the Indenture under which they are to be issued, which will be substantially in the
form previously delivered to you as an exhibit to the Indenture, and enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors’ rights and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law);
(r) The Issuers and each of the Guarantors have all requisite limited liability company or
corporate power and authority, as the case may be, to enter into the Credit Facility and any and
all other agreements and instruments ancillary to or entered into in connection with the
transactions contemplated by the Credit Facility (collectively, the “Credit Documents”);
(s) Each of the Credit Documents has been duly and validly authorized by the Issuers and each
of the Guarantors. When the Credit Documents have been duly executed and delivered, the Credit
Documents will constitute the valid and binding agreement of the Issuers and the Guarantors,
enforceable against the Issuers and such Guarantors in accordance with their respective terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors’ rights and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law);
(t) None of the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Securities) will violate or result in a violation of
Section 7 of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), or
any regulation promulgated thereunder, including, without limitation, Regulations T, U and X of the Board of Governors of
the Federal Reserve System;
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(u) Prior to the date hereof, none of the Issuers, the Guarantors nor any affiliate of an
Issuer or Guarantor has taken any action which is designed to or which has constituted or which
might have been expected to cause or result in stabilization or manipulation of the price of the
Securities in violation of any law, rule or regulation;
(v) The issue and sale of the Securities and the Guarantees, compliance by the Issuers and the
Guarantors with all of the provisions of the Securities, the Guarantees, the Indenture, the
Registration Rights Agreement and this Agreement (collectively, the “Operative Documents”), the
consummation of the transactions herein and therein contemplated, the consummation of the
Refinancing and the execution, delivery and performance of the Credit Documents will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (except such as will not individually or in the
aggregate have a Material Adverse Effect), (ii) result in any violation of the provisions of the
charter, by-laws, operating agreement or other organizational documents of the Company or any of
its subsidiaries or (iii) result in any violation of the provisions of any law or statute or any
order, rule or regulation, judgment or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their respective properties or
assets; and no consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and sale of the Securities
and the Guarantees or the consummation by the Issuers and the Guarantors of the transactions
contemplated by the Operative Documents, except for (A) the filing of a registration statement by
the Issuers with the U.S. Securities and Exchange Commission (the “Commission”) pursuant to the Act
and Section 7(k) hereof, (B) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers or (C) any consents, approvals,
authorizations, orders, registrations, qualifications or other actions that have been, or prior to
the Time of Delivery will be, obtained, waived or made;
(w) Neither the Company nor any of its subsidiaries is (i) in violation of its charter,
by-laws, operating agreement or other organizational documents or (ii) in default in the
performance or observance of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound, except for any defaults under
clause (ii) above that would not, individually or in the aggregate, have a Material Adverse Effect;
(x) The statements set forth in the Offering Memorandum under the caption “Description of
Notes,” insofar as they purport to constitute a summary of the terms of the Securities, the
Guarantees and the Indenture, and under the captions “Description of Certain Indebtedness,” and
“Certain U.S. Federal Income Tax Considerations,” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete and fair in all
material respects;
(y) In each case, except as set forth in the Offering Memorandum, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in the
aggregate, have a Material Adverse Effect; to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental authorities or threatened by others;
and, the statements incorporated by reference in Item 3, “Legal Proceedings” in the 10-K Report are
accurate, complete and fair in all material respects;
(z) When the Securities and the Guarantees are issued and delivered pursuant to this
Agreement, neither the Securities nor the Guarantees will be of the same class (within the meaning
of Rule 144A under the Act) as securities which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
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(aa) Neither of the Issuers, after giving effect to the offering and sale of the Securities,
will be an “investment company” as such term is defined in the United States Investment Company Act
of 1940, as amended, and the rules and regulations thereunder (the “Investment Company Act");
(bb) Assuming the accuracy of the representations, warranties and agreements of the Purchasers
contained in this Agreement, neither the Company nor any of its subsidiaries, nor any person acting
on its behalf (other than the Purchasers and their affiliates as to whom the Issuers and the
Guarantors make no representation), has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the Act or, with
respect to Securities sold outside the United States to non-U.S. persons (as defined in Rule 902
under the Act), by means of any directed selling efforts within the meaning of Rule 902 under the
Securities Act, and the Company, its subsidiaries, any affiliate of the Company or its
subsidiaries, and any person acting on it behalf (other than the Purchasers and their affiliates as
to whom Issuers and the Guarantors make no representation) has complied with and will implement the
“offering restriction” within the meaning of such Rule 902;
(cc) Assuming the accuracy of the representations, warranties and agreements of the Purchasers
contained in this Agreement, within the preceding six months, neither the Issuers nor any other
person acting on their behalf (other than the Purchasers and their affiliates as to whom the
Issuers and the Guarantors make no representation) has offered or sold to any person any
Securities, or any securities of the same or a similar class as the Securities, other than
Securities offered or sold to the Purchasers hereunder. The Issuers will take reasonable
precautions designed to insure that any offer or sale, direct or indirect, in the United States or
to any U.S. person (as defined in Rule 902 under the Act) of any Securities or any substantially
similar security issued by the Issuers (other than the Exchange Securities), within six months
subsequent to the date on which the distribution of the Securities and the Guarantees has been
completed (as notified to the Issuers by Wachovia Capital Markets, LLC), is made under restrictions
and other circumstances reasonably designed not to affect the status of the offer and sale of the
Securities in the United States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Act;
(dd) Neither the Company nor any of its affiliates does business with the government of Cuba
or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(ee) Deloitte & Touche LLP, who have certified certain financial statements of the Company and
its subsidiaries, are independent registered public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(ff) The market-related and industry data included in the Offering Memorandum are based upon
estimates by the Issuers derived from sources which the Issuers believe to be reliable and accurate
in all material respects;
(gg) The consolidated historical financial statements, together with related notes forming
part of the Offering Memorandum (and any amendment or supplement thereto), present fairly in all
material respects the consolidated financial position, results of operations and changes in
financial position of the Issuers and the Guarantors on the basis stated in the Offering Memorandum
at the respective dates or for the respective periods to which they apply; such statements and
related notes have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed therein; and the selected
consolidated financial data and summary financial data set forth in the Offering Memorandum (and
any amendment or supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and records of the
Issuers and the Guarantors;
(hh) There has been no labor strike, slowdown or stoppage at the Company or any of its
subsidiaries and no labor disturbance by the employees of the Company or any of its subsidiaries,
to the Issuers’ knowledge, is imminent that is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect; except as otherwise set forth or contemplated in the Offering
Memorandum, neither the Company nor any of its subsidiaries is party to a collective bargaining
agreement; and there are no unfair labor practice complaints pending against the Company or any of
its subsidiaries or, to the Issuers’ knowledge, threatened against any of them which, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
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(ii) To the Company’s knowledge, neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or any provisions of the Foreign Corrupt
Practices Act or the rules and regulations promulgated thereunder, except for such violations
which, individually or in the aggregate, would not have a Material Adverse Effect; and
(jj) Each of the Company and its subsidiaries has such permits, consents, licenses,
franchises, certificates and authorizations of governmental or regulatory authorities (“permits”)
as are necessary to own its properties and to conduct its business in the manner described in the
Offering Memorandum, except for such permits which, if not obtained, would not, individually or in
the aggregate, have a Material Adverse Effect; each of the Company and its subsidiaries has
fulfilled and performed all its material obligations with respect to such permits which are due to
have been fulfilled and performed by such date and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or results in any impairment
of the rights of the holder of any such permit, except for such revocations, terminations and
impairments that would not, individually or in the aggregate, have a Material Adverse Effect; and,
except as described in the Offering Memorandum, none of such permits contains any restriction that
is materially burdensome to the Company and its subsidiaries, taken as a whole.
(kk) The Company (i) makes and keeps books, records and accounts, which, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of assets and (ii) maintains
systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the
Exchange Act) that comply with the requirements of the Exchange Act and have been devised and
maintained by the Company’s management, under the supervision of its principal executive and
principal financial officers, to provide reasonable assurances that (A) transactions are executed
in accordance with management’s general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access to assets is permitted
only in accordance with management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. There are no material weaknesses in the Company’s
internal controls.
(ll) The Company has established and maintains disclosure controls and procedures (as defined
in Rules 13a-15(e) and 15-d-15(e) under the Exchange Act), which are designed to provide reasonable
assurance that the information required to be disclosed by the Company in reports that it files
under the Exchange Act is accumulated and communicated to the Company’s management, including its
principal executive officer and principal financial officer, as appropriate, to allow timely
decisions regarding required disclosure. The Company’s management has carried out evaluations of
the effectiveness of its disclosure controls and procedures over financial reporting as of March
28, 2008 and such disclosure controls and procedures are effective in all material respects to
perform the functions for which they were established. Since the date of the most recent evaluation
of such disclosure controls and procedures, there have been no significant changes in internal
controls or in other factors that materially affected the Company’s internal control over financial
reporting.
(mm) There is and has been no failure on the part of the Company and, to the Company’s
knowledge, any of the Company’s directors or officers, in their capacities as such, to comply with
the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith.
(nn) The Company and its subsidiaries maintain insurance covering their properties,
operations, personnel and businesses against such losses and risk as are believed to be reasonably
adequate to protect them and their businesses in a manner consistent with other businesses
similarly situated. Neither the Company nor any subsidiary has received notice from any insurer or
agent of such insurer that substantial capital improvements or other expenditures will have to be
made in order to continue such insurance, and all such insurance is outstanding and duly in force
on the date hereof and will be outstanding and duly in force at the Time of Delivery.
(oo) Each of the Company and its subsidiaries (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety and the environment or imposing liability or standards of conduct concerning any
Hazardous Materials (as defined herein) (“Environmental Laws”), (ii) has received all permits
required of it under applicable Environmental Laws to
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conduct its respective businesses, (iii) are in compliance with all terms and conditions of
any such permit, and (iv) to the knowledge of the Company and its subsidiaries, does not have any
liability in connection with the release into the environment of any Hazardous Materials, expect
where such noncompliance with Environmental Laws, failure to receive required permits, or failure
to comply with the terms and conditions of such permits or liability in connection with such
releases would not, individually or in the aggregate, have a Material Adverse Effect. The term
"Hazardous Material” means (A) any “hazardous substance” as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (B) any “hazardous
waste” as defined in the Resource Conversation and Recovery Act, as amended, (C) any petroleum or
petroleum product, (D) any polychlorinated biphenyl and (E) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the
meaning of any other Environmental Law.
(pp) Each certificate signed by any officer of the Issuers or any Guarantor and delivered to
the Purchasers or counsel for the Purchasers shall be deemed to be a representation and warranty by
such Issuer or Guarantor to the Purchasers as to the matters covered thereby.
Each of the Issuers and the Guarantors acknowledges that the Purchasers and, for purposes of
the opinions to be delivered to the Purchasers pursuant to Section 9 hereof, counsel to the
Purchasers will rely upon the accuracy and truth of the foregoing representations and the Issuers
hereby consent to such reliance.
4. Subject to the terms and conditions herein set forth, the Issuers agree to issue and sell
to each of the Purchasers, and each of the Purchasers agrees, severally and not jointly, to
purchase from the Issuers, at a purchase price of 96.001% of the principal amount thereof, plus
accrued interest from February 15, 2008 to the Time of Delivery hereunder, the principal amount of
Securities (and the Guarantees thereof) set forth opposite the name of such Purchaser in Schedule I
hereto.
5. Upon the authorization by you of the release of the Securities and the Guarantees, the
several Purchasers propose to offer the Securities and the Guarantees for sale upon the terms and
conditions set forth in this Agreement and the Offering Memorandum and each Purchaser hereby
represents and warrants to, and agrees with the Issuers and the Guarantors that:
(a) It is an Accredited Investor;
(b) It will offer and sell the Securities only to: (i) persons who it reasonably believes are
“qualified institutional buyers” within the meaning of Rule 144A under the Act in transactions
meeting the requirements of Rule 144A or (ii) persons permitted to purchase the Securities in
offshore transactions in reliance upon Regulation S under the Act; and
(c) It will not offer or sell the Securities by any form of general solicitation or general
advertising, including but not limited to the methods described in Rule 502(c) under the Act.
6. (a) The Securities to be purchased by each Purchaser hereunder will be represented by one
or more definitive global Securities in book-entry form which will be deposited by or on behalf of
the Issuers with The Depository Trust Company (“DTC”) or its designated custodian. The Issuers will
deliver the Securities and the Guarantees to Wachovia Capital Markets, LLC for the account of each
Purchaser, against payment by or on behalf of such Purchaser of the purchase price therefor by wire
transfer, in Federal (same day) funds to an account designated by the Issuers, by causing DTC to
credit the Securities and the Guarantees to the account of Wachovia Capital Markets, LLC at DTC.
The Issuers will cause the certificates representing the Securities and the Guarantees to be made
available to Wachovia Capital Markets, LLC for checking at least twenty-four hours prior to the
Time of Delivery at the office of DTC or its designated custodian (the “Designated Office”). The
time and date of such delivery and payment shall be 9:00 a.m., New York City time, on July 28, 2008
or such other time and date as Wachovia Capital Markets, LLC and the Issuers may agree upon in
writing. Such time and date are herein called the “Time of Delivery.”
8
(b) Unless otherwise agreed in writing by the parties hereto, the documents to be delivered at
the Time of Delivery by or on behalf of the parties hereto pursuant to Section 9 hereof, including
the cross-receipt for the Securities and any additional documents requested by the Purchasers pursuant to
Section 9(l) hereof, will be delivered at such time and date at the offices of Xxxxxxx Xxxx & Xxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Closing Location”), and the Securities will
be delivered at the Designated Office, all at the Time of Delivery.
7. Each of the Issuers and the Guarantors agrees, jointly and severally, with each of the
Purchasers:
(a) To prepare the Offering Memorandum in a form approved by you, to make no amendment or any
supplement to the Offering Memorandum which shall be disapproved by you promptly after reasonable
notice thereof, and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith neither any Issuer nor any Guarantor shall be
required to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction;
(c) To furnish the Purchasers with three copies of the Offering Memorandum and each amendment
or supplement thereto with the independent accountants’ reports in the Offering Memorandum, and any
amendment or supplement containing amendments to the financial statements covered by such reports,
signed by the accountants, and additional written and electronic copies thereof in such quantities
as you may from time to time reasonably request, and if, at any time prior to the completion of the
distribution of the Securities by the Purchasers, any event shall have occurred as a result of
which the Offering Memorandum 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 when such Offering Memorandum
is delivered, not misleading, or, if for any other reason it shall be necessary or desirable during
such same period to amend or supplement the Offering Memorandum, to notify you and upon your
request to prepare and furnish without charge to each Purchaser and to any dealer in securities as
many written and electronic copies as you may from time to time reasonably request of an amended
Offering Memorandum or a supplement to the Offering Memorandum which will correct such statement or
omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing until the date that is 90
days after the Time of Delivery, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Company that are substantially similar to the
Securities (other than the Exchange Securities);
(e) Not to be or become, at any time prior to the expiration of two years after the Time of
Delivery, an open-end investment company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Securities are outstanding and the Issuers are not subject to Section
13 or 15(d) of the Exchange Act, for the benefit of holders from time to time of Securities, to
furnish at its expense, upon request, to holders of Securities and prospective purchasers of
securities information satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the
Act;
(g) To use its best efforts to cause such Securities to be eligible for the PORTAL trading
system of The Nasdaq Stock Market LLC;
(h) To furnish to the holders of the Securities as soon as practicable after the end of each
fiscal year an annual report (including a balance sheet and statements of income, securityholders’
equity and cash flows of the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each of the first three quarter of
each fiscal year (beginning with the fiscal quarter ending after the date of the Offering
Memorandum), to make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable
detail unless the delivery of such information is otherwise required by and such information is
furnished under the terms of the Indenture;
9
(i) If not otherwise available on the Commission’s Electronic Data Gathering Analyses and
Retrieval System, to furnish to you copies of all reports or other communications (financial or
other) furnished to securityholders of the Issuers, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed with the Commission
or any securities exchange on which the Securities or any class of securities of the Issuers is
listed; and (ii) such additional information concerning the business and financial condition of the
Issuers as you may from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its securityholders generally or to the Commission);
(j) During the period of one year after the Time of Delivery, the Issuers will not, and will
not permit any of their “affiliates” (as defined in Rule 144 under the Act) to, resell any of the
Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any
of them;
(k) The Issuers shall file and use all commercially reasonable efforts to cause to be declared
or become effective under the Act, on or prior to 270 days after the Time of Delivery, a
registration statement on Form S-4 providing for the registration of (i) another series of debt
securities of the Issuers, with terms identical to the Securities (the “Exchange Securities”), and
the exchange of the Securities for the Exchange Securities (the “Exchange Offer”), all in a manner
which will permit persons who acquire the Exchange Securities to resell the Exchange Securities
pursuant to Section 4(1) of the Act;
(l) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Offering Memorandum under the caption “Use of Proceeds”;
(m) To do and perform all things required to be done and performed under the Operative
Documents prior to and after the Time of Delivery;
(n) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply
with all of its agreements set forth in the representation letters of the Issuers to DTC relating
to the approval of the Securities by DTC for “book-entry” transfer and to permit the Securities to
be eligible for clearance and settlement through DTC;
(o) Before making, preparing, using, authorizing, approving or referring to any Issuer Written
Communication, the Issuers will furnish to the Purchasers and counsel for the Purchasers a copy of
such written communication for review and will not make, prepare, use, authorize, approve or refer
to any such written communication to which the Purchasers object; and
(p) The Issuers will advise the Purchasers promptly, and confirm such advice in writing, (i)
of the issuance by any governmental or regulatory authority of any order preventing or suspending
the use of the Preliminary Offering Memorandum, the Pricing Disclosure Supplement, any Issuer
Written Communication or the Final Offering Memorandum, or the initiation or threatening of any
proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the
completion of the initial offering of the Securities as a result of which the Preliminary Offering
Memorandum, the Pricing Disclosure Supplement, any Issuer Written Communication or the Final
Offering Memorandum as then amended or supplemented would include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing when such Preliminary Offering Memorandum, Pricing
Disclosure Supplement, Issuer Written Communication or the Final Offering Memorandum is delivered
to a purchaser, not misleading; and (iii) of the receipt by either Issuer of any notice with
respect to any suspension of the qualification of the Securities for offer, and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and each Issuer
will use its reasonable best efforts to prevent the issuance of any such order preventing or
suspending the use of any of the Preliminary Offering Memorandum, the Pricing Disclosure
Supplement, any Issuer Written Communication or the Final Offering Memorandum or suspending any
such qualification of the Securities and, if any such order is issued, will obtain as soon as
possible the withdrawal thereof.
10
(q) Except as stated in this Agreement and in the Offering Memorandum, none of the Issuers,
the Guarantors nor any affiliate of an Issuer or Guarantor will take, directly or indirectly, any
action which is designed to or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Securities.
8. Each of the Issuers and the Guarantors, jointly and severally, covenants and agrees with
the several Purchasers that the Issuers and the Guarantors will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Issuers’ counsel and accountants in
connection with the issue of the Securities, the Exchange Securities, the Guarantees and the
Exchange Guarantees, and all other expenses in connection with the preparation, printing and filing
of the Offering Memorandum and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of printing or producing
any agreement among Purchasers, this Agreement, the Indenture, the Registration Rights Agreement,
the Blue Sky and legal investment surveys, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and delivery of the
Securities and the Exchange Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in Section 7(b)
hereof, including the reasonable fees and disbursements of counsel for the Purchasers in connection
with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any
fees charged by securities rating services for rating the Securities; (v) the cost of preparing the
Securities and the Guarantees; (vi) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture
and the Securities; (vii) any cost incurred in connection with the designation of the Securities
for trading in PORTAL; (viii) any taxes payable in connection with the issuance of the Securities
and the Guarantees; (ix) the approval of the Securities by DTC for “book-entry” transfer (including
fees and expenses of counsel for the Issuer); (x) all road show expenses, including any private
plane expenses and other travel expenses of representatives of the Company and the Purchasers in
connection with the offering of Securities; and (xi) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section, and Sections 10 and
13 hereof, the Purchasers will pay all of their own costs and expenses, including the fees of their
counsel and any advertising expenses connected with any offers they may make.
9. The obligations of the Purchasers hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Issuers and the
Guarantors herein are, at and as of the Time of Delivery, true and correct, the condition that the
Issuers and the Guarantors shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) Winston & Xxxxxx LLP, counsel for the Purchasers, shall have furnished to you such opinion
or opinions, dated the Time of Delivery, with respect to the matters as you may reasonably request,
and such counsel shall have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(b) Xxxxxxx, Xxxx & Xxxxx LLP, counsel for the Issuers, shall have furnished to you their
written opinion, dated the Time of Delivery, substantially in the form set forth in Annex I hereto;
(c) Xxxxxxx and Xxxxxx LLP, California local counsel for the Issuers, shall have furnished to
you their written opinion, dated the Time of Delivery, substantially in the form set forth in Annex
II hereto;
(d) Xxxxx Xxxxxx, Nevada local counsel for the Issuers, shall have furnished to you their
written opinion, dated the Time of Delivery, substantially in the form set forth in Annex III
hereto;
(e) Xxxxxx Xxxxx LLP, Virginia local counsel for the Issuers, shall have furnished to you
their written opinion, dated the Time of Delivery, substantially in the form set forth in Annex IV
hereto;
(f) On the date of the Preliminary Offering Memorandum prior to the execution of this
Agreement and also at the Time of Delivery, Deloitte & Touche LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex V hereto;
11
(g) The Purchasers shall not have discovered and disclosed to the Issuers on or prior to the
Time of Delivery that the Offering Memorandum contained an untrue statement of a fact that, in the
opinion of such Purchasers on advice of counsel, is material or omits to state a fact that, in the
opinion of such Purchasers on advice of counsel, is material and is required to be stated therein
or in the documents incorporated therein by reference or is necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading;
(h) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Offering Memorandum any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum, and (ii) since the
respective dates as of which information is given in the Offering Memorandum there shall not have
been any change in the capital stock or other equity interests or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, members’ equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the
Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is in
the judgment of Wachovia Capital Markets, LLC and Xxxxxxx, Sachs & Co. (the “Representatives”) so
material and adverse as to make it impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated in this Agreement and in the
Offering Memorandum;
(i) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded
the Issuers’ debt securities by any “nationally recognized statistical rating organization,” as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no
such organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Issuers’ debt securities;
(j) On or after the date hereof there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
(the “NYSE”); (ii) trading in any securities of DynCorp International Inc. the NYSE shall have been
suspended; (iii) a general moratorium on commercial banking activities declared by either Federal
or New York authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national emergency or war; or (v)
the occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed
with the offering or the delivery of the Securities on the terms and in the manner contemplated in
the Offering Memorandum;
(k) The Securities have been designated for trading on PORTALSM ;
(l) Each of the Issuers and Guarantors shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Issuers and the Guarantors reasonably
satisfactory to you as to the accuracy of the representations and warranties of the Issuers and
Guarantors herein at and as of such Time of Delivery as to the performance by the Issuers and the
Guarantors of all of their obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (h) and (i) of this Section and as to such
other matters as you may reasonably request;
(m) Prior to or concurrently with the Time of Delivery, the Company shall have entered into
the Credit Facility and other Credit Documents and the Purchasers shall have received counterparts,
conformed as executed, thereof, the Company shall have borrowed and applied such amounts thereunder
as set forth in the Offering Memorandum under the caption “Use of Proceeds”; and
(n) The Issuers and each of the Guarantors shall have delivered executed copies of the
Securities, the Guarantees, the Indenture and the Registration Rights Agreement.
12
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Purchasers.
10. (a) The Issuers and each of the Guarantors, jointly and severally, will indemnify and hold
harmless each of the Purchasers from and against any losses, damages or liabilities, joint or
several, to which the Purchasers may become subject, under the Act, or otherwise, insofar as such
losses, damages or liabilities (or actions or claims in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum, the Pricing Disclosure Supplement, any Issuer Written
Communication or the Final Offering Memorandum, or any amendment or supplement thereto, or arise
out of or are based upon any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances in which they were made,
not misleading, and will reimburse each of the Purchasers for any legal or other expenses
reasonably incurred by such Purchasers in connection with investigating, preparing, pursuing or
defending against or appearing as a third party witness in connection with any such loss, damage,
liability or action or claim, including, without limitation, any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable fees and expenses of
counsel to the indemnified party, as such expenses are incurred (including such losses, damages,
liabilities or expenses to the extent of the aggregate amount paid in settlement of any such action
or claim, provided that (subject to Section 10(c) hereof) any such settlement is effected with the
written consent of the Issuers, which consent shall not be unreasonably withheld); provided,
however, that the Issuers and Guarantors shall not be liable in any such case to the extent, but
only to the extent, that any such loss, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the
Preliminary Offering Memorandum, the Pricing Disclosure Supplement, any Issuer Written
Communication or the Final Offering Memorandum, or in any amendment or supplement thereto, in
reliance upon and in conformity with written information relating to the Purchasers furnished to
the Issuers by any Purchaser through Wachovia Capital Markets, LLC expressly for use in the
preparation thereof which information is specified in Section 22.
(b) Each of the Purchasers, severally and not jointly, will indemnify and hold harmless the
Issuers and the Guarantors from and against any losses, damages or liabilities to which the Issuers
or the Guarantors may become subject, under the Act or otherwise, insofar as such losses, damages
or liabilities (or actions or claims in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum, the Pricing Disclosure Supplement, any Issuer Written Communication or the
Final Offering Memorandum, or in any amendment or supplement thereto, or arise out of or are based
upon any omission or alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances in 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 the Preliminary Offering Memorandum, the Pricing
Disclosure Supplement, any Issuer Written Communication or the Final Offering Memorandum, or in any
amendment or supplement thereto, in reliance upon and in conformity with written information
relating to the Purchasers furnished to the Issuers by such Purchaser though Wachovia Capital
Markets, LLC, expressly for use in the preparation thereof (as provided in Section 22 hereof, and
will reimburse the Issuers and the Guarantors for any legal or other expenses incurred by the
Issuers and the Guarantors in connection with investigating or defending any such action or claim
as such expenses are incurred (including such losses, damages, liabilities or expenses to the
extent of the aggregate amount paid in the settlement of such action or claim, provided that
(subject to Section 10(d) hereof) any such settlement is effected with the written consent of the
Purchasers, which consent shall not be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under Section 10(a) or 10(b) hereof of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under Section 10(a) or 10(b) hereof, notify
each such indemnifying party in writing of the commencement thereof, but the failure so to notify
such indemnifying party shall not relieve such indemnifying party from any liability it may have
under Section 10(a) or 10(b) hereof except to the extent it has been materially prejudiced (through
the forfeiture of substantive rights and defenses by such failure), and such failure shall not
relieve such indemnifying party from any liability it may have to any such indemnified party
otherwise than under Section 10(a) or 10(b) hereof. In case any such action shall be brought
against any such indemnified party and it shall notify each indemnifying party of the commencement
thereof, each such indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party under Section 10(a)
13
or 10(b) hereof similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent of such indemnified
party, be counsel to such indemnifying party), and, after notice from such indemnifying party to
such indemnified party of its election so to assume the defense thereof, such indemnifying party
shall not be liable to such indemnified party under Section 10(a) or 10(b) hereof for any legal
expenses of other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the expense of the indemnifying
party has been authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by such counsel that there may be a conflict of interest between the indemnifying party and
the indemnified party in the conduct of the defense, or certain aspects of the defense, of such
action (in which case the indemnifying party shall not have the right to direct the defense of such
action with respect to those matters or aspects of the defense on which a conflict exists or may
exist on behalf of the indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel reasonably satisfactory to such indemnified party to assume the defense of such
action, in any of which events such fees and expenses to the extent applicable shall be borne, and
shall be paid as incurred, by the indemnifying party. If at any time such indemnified party shall
have requested such indemnifying party under Section 10(a) or 10(b) hereof to reimburse such
indemnified party for fees and expenses of counsel and such reimbursement is required hereunder,
such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 10(a) or 10(b) hereof effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying party of such
request for reimbursement and (ii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request for reimbursement prior to the date of such
settlement. No such indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential party to
such action or claim) unless (i) such settlement, compromise or judgment includes an unconditional
release of the indemnified party from all liability arising out of such action or claim, (ii) such
settlement, compromise or judgment does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any such indemnified party and (iii) such
indemnified party shall have received notice of the terms of such settlement at least 45 days prior
to such settlement being entered into.
(d) If the indemnification provided for in this Section 10 is unavailable to or insufficient
to indemnify or hold harmless an indemnified party under Section 10(a) or 10(b) hereof in respect
of any losses, damages or liabilities (or actions or claims in respect thereof) referred to
therein, then each indemnifying party under Section 10(a) or 10(b) hereof shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages or liabilities
(or actions or claims in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Issuers and the Guarantors on the one hand, and the Purchasers on
the other hand, from the offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under Section 10(c) hereof and such indemnifying party was
prejudiced in a material respect by such failure, then each such indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault, as applicable,
of the Issuers and the Guarantors on the one hand, and the Purchasers, on the other hand in
connection with the statements or omissions that resulted in such losses, damages or liabilities
(or actions or claims in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by, as applicable, the Issuers and the Guarantors on the one hand
and the Purchasers, on the other hand, shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the Issuers bear to the
total discounts and commissions received by the Purchasers. The relative fault, as applicable, of
the Issuers and the Guarantors, on the one hand and the Purchasers, on the other hand, 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 Issuers and the Guarantors on the one hand, or the Purchasers on the other hand and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Issuers and the Guarantors and the Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 10(d) were determined
by pro rata allocation or by any other method of allocation that does not take account of the
equitable considerations referred to above in this Section 10(d). The amount paid or payable by
such an indemnified party as a result of the losses, damages or liabilities (or
14
actions or claims in respect thereof) referred to above in this Section 10(d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 10(d), no Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities purchased by it and distributed to the investors were
offered to the investors exceeds the amount of any damages that such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Purchasers’ obligations to contribute pursuant to this Section 10 are
several in proportion to their respective purchase obligations hereunder and not joint.
(e) The obligations of the Issuers and the Guarantors under this Section 10 shall be in
addition to any liability that the Issuers and the Guarantors may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director, employee, agent or other
representative of each Purchaser and to each person, if any, who controls any Purchaser within the
meaning of the Act; and the obligations of each of the Purchasers under this Section 10 shall be in
addition to any liability that the respective Purchaser may otherwise have and shall extend, upon
the same terms and conditions, to each officer, director, employee, agent or other representative
of the Issuers and to each person who controls the Issuers and the Guarantors within the meaning of
the Act.
11. (a) If any Purchaser shall default in its obligation to purchase the Securities which it
has agreed to purchase hereunder, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If within thirty-six hours
after such default by any Purchaser you do not arrange for the purchase of such Securities, then
the Issuers shall be entitled to a further period of thirty-six hours within which to procure
another party or other parties reasonably satisfactory to you to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, you notify the Issuers that you
have so arranged for the purchase of such Securities, or the Issuers notify you that they have so
arranged for the purchase of such Securities, you or the Issuers shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Offering Memorandum, or in any other documents or
arrangements, and the Issuers agree to prepare promptly any amendments to the Offering Memorandum
which in your opinion may thereby be made necessary. The term “Purchaser” as used in this Agreement
shall include any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Purchaser or Purchasers by you and the Issuers as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Securities, then the Issuers shall have
the right to require each non-defaulting Purchaser to purchase the principal amount of Securities
which such Purchaser agreed to purchase hereunder and, in addition, to require each non-defaulting
Purchaser to purchase its pro rata share (based on the principal amount of Securities which such
Purchaser agreed to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Purchaser or Purchasers by you and the Issuers as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Issuers shall not exercise the right
described in subsection (b) above to require non-defaulting Purchasers to purchase Securities of a
defaulting Purchaser or Purchasers, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Purchaser or the Issuers, except for the expenses to be
borne by the Issuers and the Purchasers as provided in Section 8 hereof and the indemnity and
contribution agreements in Section 10 hereof; but nothing herein shall relieve a defaulting
Purchaser from liability for its default.
15
12. The respective indemnities, agreements, representations, warranties and other statements
of the Issuers, the Guarantors and the several Purchasers, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on behalf of any
Purchaser or any controlling person of any Purchaser, or the Issuers or any Guarantor, or any
officer or director or controlling person of the Issuers or a Guarantor, and shall survive delivery
of and payment for the Securities.
13. Notwithstanding anything to the contrary, if for any reason (other than a termination of
this Agreement pursuant to Section 11 hereof) the Securities and the Guarantees are not delivered
by or on behalf of the Issuers as provided herein, the Issuers will reimburse the Purchasers
through you for all out-of-pocket fees and expenses reasonably incurred in connection with the
offering of the Securities, including, but not limited to, the fees, disbursements and other
charges of legal counsel, expenses incurred in connection with their due diligence investigation,
consultants’ fees and travel expenses, but the Issuers shall then be under no further liability to
any Purchaser except as provided in Sections 8 and 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the Purchasers, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Purchaser made or given by you jointly or by Wachovia Capital Markets, LLC on
behalf of you as the representative.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Purchasers shall be delivered or sent by mail, telex or facsimile transmission to you as the
Representatives in care of Wachovia Capital Markets, LLC, One Wachovia Center, 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: High Yield Capital Markets, with a copy to
Xxxxx X. Xxxxxxxx, Xxxxxxx & Xxxxxx LLP, 00 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000; and if to
the Issuers or any Guarantor shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Issuers set forth in the Offering Memorandum, Attention: Secretary, with copies
to Xxxxxxx X. Xxxxxxxxxx, Esq., Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; provided, however, that any notice to a Purchaser pursuant to Section 10(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Purchaser at its address set
forth in its Purchasers’ Questionnaire, or telex constituting such Questionnaire, which address
will be supplied to the Issuers by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the Purchasers,
the Issuers and the Guarantors and, to the extent provided in Sections 10 and 12 hereof, the
officers and directors of the Issuers and the Guarantors and each person who controls the Issuers,
any Guarantor or any Purchaser, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Purchaser shall be deemed a successor or
assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement.
17. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
18. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
19. The Issuers and the Guarantors are authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any U.S. federal income
tax benefits expected to be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits, without the Purchasers
imposing any limitation of any kind.
20. The Issuers and the Guarantors acknowledge that the Purchasers’ research analysts and
research departments are required to be independent from their respective investment banking
divisions and are subject to certain regulations and internal policies, and that such Purchasers’
research analysts may hold and make statements or investment recommendations and/or publish
research reports with respect to the Company and its affiliates and/or the offering that differ
from the views of its investment bankers. The Issuers and the Guarantors hereby waive and
16
release, to the fullest extent permitted by law, any claims that the Issuers and the
Guarantors may have against the Purchasers with respect to any conflict of interest that may arise
from the fact that the views expressed by their independent research analysts and research
departments may be different from or inconsistent with the views or advice communicated to the
Issuers by such Purchasers’ investment banking divisions. The Issuers and the Guarantors
acknowledge that each of the Purchasers is a full service securities firm and as such from time to
time, subject to applicable securities laws, may effect transactions for its own account or the
account of its customers and hold long or short positions in debt or equity securities of the
companies or their affiliates which may be the subject of the transactions contemplated by this
Agreement.
21. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties
or any oral representations or assurances previously or subsequently made by the Purchasers, each
of the Issuers and the Guarantors acknowledges and agrees that: (i) nothing herein shall create a
fiduciary or agency relationship between any of the Issuers or the Guarantors, on the one hand, and
the Purchasers, on the other; (ii) the Purchasers are not acting as advisors, expert or otherwise,
to the Issuers or the Guarantors in connection with this offering, the sale of the Securities or
any other services the Purchasers may be deemed to be providing hereunder, including, without
limitation, with respect to the public offering price of the Securities; (iii) the relationship
between the Issuers and the Guarantors, on the one hand and the Purchasers, on the other, is
entirely and solely commercial, based on arms-length negotiations; (iv) any duties and obligations
that the Purchasers may have to any of the Issuers or the Guarantors shall be limited to those
duties and obligations specifically stated herein; and (v) notwithstanding anything in this
Agreement to the contrary, you acknowledge that the Purchasers may have financial interests in the
success of the offering that are not limited to the difference between the price to the public and
the purchase price paid to you by the Purchasers for the Securities, and the Purchasers have no
obligation to disclose, or account to you for, any of such additional financial interests. Each of
the Issuers and the Guarantors hereby waives and releases, to the fullest extent permitted by law,
any claims that any of the Issuers or the Guarantors may have against the Purchasers with respect
to any breach or alleged breach of fiduciary duty with respect to the transactions contemplated by
this Agreement.
22. For purposes of this Agreement, the statements set forth in the fourth sentence of the
second paragraph, the sixth paragraph and the seventh paragraph, in each case under the section
captioned “Plan of Distribution” in the Offering Memorandum, constitute the only information
furnished by or on behalf of the Purchasers for use in the Offering Memorandum or any Issuer
Written Communication.
23. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Purchasers are required to obtain, verify and record
information that identifies their respective clients, including the Issuers, which information may
include the name and address of their respective clients, as well as other information that will
allow the Purchasers to properly identify their respective clients.
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Purchasers,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Purchasers, the Issuers and the Guarantors. It is understood that your acceptance of this letter on
behalf of each of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Issuers for examination upon request,
but without warranty on your part as to the authority of the signers thereof.
(Signature Pages Follow)
17
| Very truly yours, DynCorp International LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| DIV Capital Corporation |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| DTS Aviation Services LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| DynCorp Aerospace Operations LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| DynCorp International Services LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Dyn Marine Services LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Dyn Marine Services of Virginia LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Global Linguist Solutions LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Manager | |||
| Services International LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Worldwide Humanitarian Services LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Worldwide Recruiting and Staffing Services LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
Accepted as of the date hereof:
| Wachovia Capital Markets, LLC | ||||
By:
|
/s/ Wachovia Capital Markets, LLC
|
|||
| Xxxxxxx, Xxxxx & Co. | ||||
By:
|
/s/ Xxxxxxx Sachs
|
|||
As Representatives of the Purchasers
set forth on Schedule I hereto
set forth on Schedule I hereto
SCHEDULE I
| Principal Amount | ||||
| of Securities | ||||
| Purchaser | to be Purchased | |||
Wachovia Capital Markets, LLC |
$ | 62,500,000 | ||
Xxxxxxx, Sachs & Co. |
43,750,000 | |||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
18,750,000 | |||
Total |
$ | 125,000,000 | ||
I
SCHEDULE II
Guarantors
DTS Aviation Services LLC
DynCorp Aerospace Operations LLC
DynCorp International Services LLC
Dyn Marine Services LLC
Dyn Marine Services of Virginia LLC
Global Linguist Solutions LLC
Services International LLC
Worldwide Humanitarian Services LLC
Worldwide Recruiting and Staffing Services LLC
DynCorp Aerospace Operations LLC
DynCorp International Services LLC
Dyn Marine Services LLC
Dyn Marine Services of Virginia LLC
Global Linguist Solutions LLC
Services International LLC
Worldwide Humanitarian Services LLC
Worldwide Recruiting and Staffing Services LLC
SCHEDULE III
Pricing Disclosure Supplement
| PRICING DISCLOSURE SUPPLEMENT | STRICTLY CONFIDENTIAL |
$125,000,000
DynCorp International LLC
DIV Capital Corporation
9.500% Senior Subordinated Notes due 2013
DynCorp International LLC
DIV Capital Corporation
9.500% Senior Subordinated Notes due 2013
July 14, 2008
Pricing Disclosure Supplement dated July 14 , 2008 to Preliminary Offering Memorandum dated
July 14, 2008 of DYNCORP INTERNATIONAL LLC and DIV CAPITAL CORPORATION
This Pricing Disclosure Supplement is qualified in its entirety by reference to the
Preliminary Offering Memorandum, except to the extent inconsistent with the information in the
Preliminary Offering Memorandum. The information in this Pricing Disclosure Supplement
supplements the Preliminary Offering Memorandum and supersedes the information in the
Preliminary Offering Memorandum to the extent inconsistent with the information in the
Preliminary Offering Memorandum. Capitalized terms used below have the meanings given in the
Preliminary Offering Memorandum.
The notes have not been registered under the Securities Act of 1933, as amended, or any state
securities laws and the notes may not be offered or sold in the United States or to any U.S.
persons unless the notes are registered under the Securities Act or offered or pursuant to an
exemption from the registration requirements of the Securities Act. Therefore, the notes are
only being offered to you if you are: (1) a U.S. “qualified institutional buyer” as defined in
Rule 144A under the Securities Act; or (2) a non-U.S. purchaser in an offshore transaction
pursuant to Regulation S adopted under the Securities Act. For details about eligible
offerees, deemed representations and agreements by investors and transfer restrictions, see
“Notice to Investors” in the Preliminary Offering Memorandum.
Issuers:
|
DynCorp International LLC and DIV Capital Corporation (the “Issuers”) | |
Principal Amount:
|
$125,000,000 | |
Notes Offered:
|
Senior Subordinated Notes | |
Maturity Date:
|
February 15, 2013 | |
Issue Price:
|
99.001 %, plus accrued interest from February 15, 2008 | |
Coupon:
|
9.500% | |
Interest Payment Dates:
|
February 15 and August 15 of each year, beginning August 15, 2008 | |
Trade Date:
|
July 14, 2008 | |
Settlement Date:
|
July 28, 2008 (T+ 10) |
Distribution:
|
l44A and Regulation S with registration rights as set forth in the Preliminary Offering Memorandum | |
Initial Purchasers:
|
Wachovia Capital Markets, LLC, Xxxxxxx, Xxxxx & Co. and SunTrust Xxxxxxxx Xxxxxxxx, Inc. | |
CUSIP:
|
00000XXX0 (l44A) and X00000XX0 (Reg S) | |
Proceeds:
|
The Issuers will receive net proceeds from this offering of approximately $117.3 million, after deducting initial purchaser discounts and the estimated expenses of the offering. | |
Changes From the
Preliminary Offering
Memorandum:
|
The Preliminary Offering Memorandum assumed that we would issue the Senior Subordinated Notes at an issue price of 100.000%. Given that the actual issue price is 99.001%, the Preliminary Offering Memorandum is revised as follows: |
| • | Under the heading “Use of Proceeds,” the amount of $125.0 million for the line item “Notes offered hereby” is revised to be $123.8 million and the line item for “Total Sources” is revised to be $323.8 million. | ||
| • | Under the heading “Use of Proceeds,” the amount of $17.4 million for the line item “Cash on balance sheet” is revised to be $16.2 million and the line item for “Total Uses” is revised to be $323.8 million. |
Under the heading “Capitalization,” the amount of $102,749,000
for the line item “Cash and cash equivalents” is revised to be
$101,500,000.
