Contract
Exhibit
99.1
Execution Version
L-3 COMMUNICATIONS CORPORATION
$500,000,000
3.95% Senior Notes due 2016
November 17, 2011
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Barclays Capital, Inc.
Deutsche Bank Securities Inc.
Barclays Capital, Inc.
Deutsche Bank Securities Inc.
November 17, 2011
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
As Representatives of the several Underwriters
c/x XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
One Bryant Park
New York , NY 10036
New York , NY 10036
Ladies and Gentlemen:
Introductory. L-3 Communications Corporation, a Delaware corporation (the “Company”),
proposes to issue and sell to the several underwriters named in Schedule A (the
“Underwriters”), acting severally and not jointly, the respective amounts set forth in such
Schedule A of $500,000,000 in aggregate principal amount of the Company’s 3.95% Senior
Notes due 2016 (the “Notes”). Barclays Capital Inc., Deutsche Bank Securities Inc. and
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated have agreed to act as representatives of the
several Underwriters (in such capacity, the “Representatives”) in connection with the
offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of May 21, 2010 (the “Base
Indenture”), among the Company, the Guarantors (as defined below) and The Bank of New York
Mellon, as trustee (the “Trustee”). Certain terms of the Notes will be established
pursuant to a supplemental indenture, dated as of the Closing Date (as defined in Section 2 below)
(the “Supplemental Indenture”) to the Base Indenture (together with the Base Indenture, the
“Indenture”). The Notes will be guaranteed (the “Guarantees”) on an unsecured
senior basis by each of the entities listed on Exhibit A hereto (the “Guarantors”).
The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The
Depository Trust Company (the “Depositary”), pursuant to a letter of representations, to be
dated on or before the Closing Date (as defined in Section 2 below) (the “DTC Agreement”),
among the Company, the Trustee and the Depositary.
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The Company and the Guarantors have prepared and filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-165756),
which contains a base prospectus (the “Base Prospectus”), to be used in connection with the
public offering and sale of debt securities, including the Notes, and other securities of the
Company under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), and the offering thereof from time to time
in accordance with Rule 415 under the Securities Act. Such registration statement, including the
financial statements, exhibits and schedules thereto, in the form in which it became effective
under the Securities Act, including any required information deemed to be a part thereof at the
time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
“Registration Statement.” The term “Prospectus” shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant
to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed
(the “Execution Time”) by the parties hereto. The term “Preliminary Prospectus”
shall mean the preliminary prospectus supplement relating to the Notes, together with the Base
Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any reference herein
to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents that are or are deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act prior to 3:40 p.m. on November 17, 2011
(the “Initial Sale Time”). All references in this Agreement to the Registration Statement,
the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be,
after the Initial Sale Time.
The Company and the Guarantors hereby confirm their agreements with the Underwriters as
follows:
Section 1. Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors hereby jointly and severally represent, warrant and covenant to
each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in
each case, a “Representation Date”), as follows:
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a) Compliance with Registration Requirements. The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission,
and any request on the part of the Commission for additional information has been complied with.
In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”).
At the respective times the Registration Statement and any post-effective amendments thereto
(including the filing with the Commission of the Company’s Annual Report on Form 10-K for the year
ended December 31, 2010) became effective and at each Representation Date, the Registration
Statement and any amendments thereto (i) complied and will comply in all material respects with the
requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. At the date of the
Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements
thereto included or will include an untrue statement of a material fact or omitted or will 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. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or any post-effective amendment or the Prospectus or any amendments
or supplements thereto made in reliance upon and in conformity with information furnished to the
Company in writing by any of the Underwriters through the Representatives expressly for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
through the Representatives consists of the information described as such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the
Commission, complied in all material respects with the Securities Act, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering
of the Notes will, at the time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
b) Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary
Prospectus dated November 17, 2011, (ii) the issuer free writing prospectuses as defined in Rule
433 of the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified
in Annex I hereto and (iii) any other free writing prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial
Sale Time, the Disclosure Package did not contain 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 Disclosure Package based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such
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information
furnished by any Underwriter through the Representatives consists of the information described as
such in Section 8 hereof.
c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the
time they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include 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.
d) Company is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Notes in
reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time, the
Company was and is a “well known seasoned issuer” as defined in Rule 405 of the Securities Act.
The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405
of the Securities Act, that automatically became effective not more than three years prior to the
Execution Time; the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form
and the Company has not otherwise ceased to be eligible to use the automatic shelf registration
form.
e) Company is not an Ineligible Issuer. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405
of the Securities Act), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.
f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Notes under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has promptly
notified or will promptly notify the Representatives and has promptly amended or supplemented or
will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict. The foregoing two sentences do not apply to statements in
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or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described as such in Section 8
hereof.
g) Distribution of Offering Material By the Company. The Company and the Guarantors have not
distributed and will not distribute, prior to the later of the Closing Date and the completion of
the Underwriters’ distribution of the Notes, any offering material in connection with the offering
and sale of the Notes other than the Registration Statement, the Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and
included in Annex I hereto or any electronic road show or other written communications reviewed and
consented to by the Representatives and listed on Xxxxx XX hereto (collectively, “Company
Additional Written Communication”). Each such Company Additional Written Communication, when
taken together with the Disclosure Package, did not, and at the Closing Date 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.
The preceding sentence does not apply to statements in or omissions from the Company Additional
Written Communication based upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter through the
Representatives consists of the information described as such in Section 8 hereof.
h) No Applicable Registration or Other Similar Rights. There are no persons with registration
or other similar rights to have any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by this Agreement, except for such
rights as have been duly waived.
i) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
j) Authorization of the Indenture. The Indenture has been duly authorized by the Company and
each of the Guarantors and, when duly executed by the proper officers of the Company and each of
the Guarantors (assuming the Indenture is the valid and binding obligation of the Trustee),
executed and delivered by the Company and each of the Guarantors, will constitute a valid and
binding agreement of the Company and each of the Guarantors, enforceable against the Company and
each of the Guarantors in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws relating to or affecting creditors’ rights generally and
by general equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) or an implied covenant of good faith and fair dealing (the
“Enforceability Exceptions”). The Indenture has been duly qualified under the Trust
Indenture Act.
k) Authorization of the Notes. The Notes to be purchased by the Underwriters from the Company
are in the form contemplated by the Indenture, have been duly authorized by the
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Company and, when
executed by the Company and authenticated by the Trustee in accordance with the Indenture and
delivered to the Underwriters against payment therefor in accordance with the terms of this
Agreement, will be validly issued and delivered, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the Enforceability Exceptions.
l) Authorization of the Guarantees. The Guarantees have been duly authorized by the
Guarantors and, when executed and delivered by the Guarantors, and when the Notes have been duly
authorized and executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor on the Closing Date in
accordance with the terms of this Agreement, will constitute valid and binding obligations of the
Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in
accordance with their terms, subject to the Enforceability Exceptions.
m) Description of the Notes and the Indenture. The Notes, the Indenture and the Guarantees
conform, or will conform, in all material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus.
n) Accuracy of Statements in Prospectus. The statements in each of the Preliminary Prospectus
and the Prospectus under the captions “Description of the Senior Notes,” “Description of Senior
Unsecured Notes” and “Material U.S. Federal Income and Estate Tax Consequences,” in each case
insofar as such statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material respects, the matters referred
to therein.
o) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package, (i)
neither the Company nor any of its subsidiaries has sustained 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 and, except as would not,
individually or in the aggregate, result in a Material Adverse Change (as defined below) (ii) there
has been no material adverse change, or any development that could reasonably be expected to result
in a material adverse change, in the condition (financial or otherwise) or in the business,
properties, stockholders’ equity, results of operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its subsidiaries, considered as
one entity (any such change is called a “Material Adverse Change”).
p) Independent Accountants. PricewaterhouseCoopers LLP, which have audited the Company’s
audited financial statements for the fiscal years ended December 31, 2010, 2009 and 2008
incorporated by reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus, are an independent registered public accounting firm with respect to the Company as
required by the Securities Act and the Exchange Act and the Public Company Accounting Oversight
Board.
q) Preparation of the Financial Statements. The financial statements and the notes thereto
included or incorporated by reference in the Registration Statement, the Preliminary
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Prospectus and
the Prospectus present fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at the dates and for the
periods indicated and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated and comply as to form in
all material respects with the rules and regulations of the Commission, except as otherwise noted.
r) Incorporation and Good Standing of the Company and its Subsidiaries. The Company and
each of the Guarantors has been duly organized and is validly existing and in good standing as a
corporation or other business entity under the laws of its jurisdiction of incorporation or
organization, with all power and authority necessary to conduct the business in which it is engaged
or to own or lease its properties; and each of the Company and the Guarantors is duly qualified to
do business and in good standing as a foreign corporation or other business entity in each
jurisdiction 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 or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Change. All of
the issued shares of capital stock of the Company have been duly authorized and validly authorized
and issued, are fully paid and nonassessable.
s) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
None of the execution or delivery of this Agreement by the Company and the Guarantors, the
consummation of the transactions contemplated hereby, the execution and delivery of the Indenture,
the Notes and the Guarantees by the Company and the Guarantors, as applicable, or compliance by the
Company and the Guarantors with all of the provisions of this Agreement, the Indenture, the Notes
and the Guarantees, as applicable, will result in a breach or violation of, or constitute a default
under (i) the certificate of incorporation, by-laws, certificate of limited partnership, limited
liability company agreement, partnership agreement or other constitutive documents of the Company,
the Guarantors or any of the Company’s significant subsidiaries (the Company’s significant
subsidiaries as defined in Rule 1-02 of Regulation S-X are collectively referred to as the
“Significant Subsidiaries”), (ii) any loan agreement, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which any
of them is bound or to which any of their properties is subject that is material to the financial
condition or prospects of the Company and its subsidiaries taken as a whole, or (iii) any law or
any rule, regulation, order or decree of any
governmental agency or body or court having
jurisdiction over the Company or any of the Guarantors or any of their respective properties or
assets, except, in the case of clauses (ii) and (iii) above, for such breach, violation or default
which, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Change. Neither the Company nor any of its
Significant Subsidiaries is in violation or breach of its certificate of incorporation, by-laws,
certificate of limited partnership, limited liability company agreement, partnership agreement or
other constitutive documents, (ii) none of the Company, any of the Guarantors or any of the
Company’s Significant Subsidiaries is in default, and no event has occurred that, with notice or
lapse of time or both, would constitute such a default, in the due performance or observance of any
loan agreement, indenture, mortgage, deed of trust or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties or assets is subject, (iii) none
of the Company, any of the Guarantors or any of the Company’s Significant Subsidiaries is in
violation of any law or any rule, regulation, order or decree of any
7
governmental agency or body or
court having jurisdiction over the Company or its subsidiaries or any of their respective
properties or assets or (iv) has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary for the conduct of its business or the
ownership or holding of its property, except in the case of clauses (ii), (iii) and (iv), to the
extent any such violation, breach, default or failure would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Change.
t) Governmental Approvals. No consent, approval, order or authorization of any governmental
agency or body or court is required in connection with the consummation of the transactions
contemplated by this Agreement, the Indenture, the Notes or the Guarantees, except for such
consents, approvals, orders and authorizations required under the securities or “Blue Sky” laws of
certain jurisdictions, and except, further, for such consents, approvals, orders and authorizations
which have been obtained and are in full force and effect.
u) No Material Actions or Proceedings. Except as described or contemplated in the Disclosure
Package and the Prospectus, there is no litigation or legal or governmental proceeding to which the
Company or any Guarantor is a party or to which any property or assets of the Company or any
Guarantor is subject or which is pending or, to the knowledge of the Company or any Guarantor,
threatened against the Company or any Guarantor which if adversely determined, would, individually
or in the aggregate, be reasonably likely to result in a Material Adverse Change.
v) Labor Matters. None of the Company, the Guarantors or any of the Company’s Significant
Subsidiaries is involved in any strike, job action or labor dispute with any group of employees
that would reasonably be expected to have a Material Adverse Change, and, to the Company’s
knowledge, no such action or dispute is threatened.
w) Intellectual Property Rights. The Company, each of the Guarantors and each of the
Company’s Significant Subsidiaries own or possess adequate rights to use all material patents,
trademarks, service marks, trade names, copyrights, licenses, inventions, trade secrets and other
rights, and all registrations or applications relating thereto, described in the Disclosure Package
and the Prospectus as being owned by them or necessary for the conduct of their business, except as
such would not reasonably be expected to have a Material Adverse Change (individually or in the
aggregate), and the Company is not aware of any pending or threatened claim to the contrary or any
pending or threatened challenge by any other person to the rights of the Company and its
subsidiaries with respect to the foregoing which, if determined adversely to
the Company and its subsidiaries, would reasonably be expected to have a Material Adverse
Effect (individually or in the aggregate).
x) No Additional Documents. There are no contracts or documents which would be required to be
described in a prospectus contained in a registration statement on Form S-3 under the Securities
Act or by the rules and regulations thereunder which have not been described in the Disclosure
Package and the Prospectus.
y) Capital Stock and Long-Term Debt. Since the respective dates as of which information is
given in the Disclosure Package and the Prospectus, and except as disclosed or contemplated in the
Disclosure Package and the Prospectus, there has not been any material
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change in the capital stock,
membership, partnership or other equity interests or material increase in long-term debt of the
Company or its subsidiaries or any Material Adverse Change, or any development involving or which
would reasonably be expected to involve a Material Adverse Change.
z) Liabilities and Dividends. Since the respective dates as of which information is given in
the Disclosure Package and the Prospectus, and except as disclosed or contemplated in the
Disclosure Package and the Prospectus, the Company and its subsidiaries have not incurred any
liability or obligation, direct or contingent, or entered into any transaction, in each case not in
the ordinary course of business, that would reasonably be expected to have a Material Adverse
Change or declared or paid any special dividend on its capital stock, partnership or other equity
interests.
aa) Company Not an Investment Company. The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company
Act”). The Company is not, and after receipt of payment for the Notes and the application of
the proceeds thereof as contemplated under the caption “Use of Proceeds” in the Preliminary
Prospectus and the Prospectus will not be, required to register as an “investment company” within
the meaning of the Investment Company Act.
bb) No Price Stabilization or Manipulation. The Company and the Guarantors have not taken and
will not take, directly or indirectly, any action designed to result in stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
cc) No Unlawful Contributions or Other Payments. To the best of the Company’s knowledge, none
of the Company, any of the Guarantors or any of the Company’s Significant Subsidiaries, nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment, except as would not reasonably be expected to have a
Material Adverse Change or as described in the Preliminary Prospectus and the Prospectus.
dd) No Conflict with Money Laundering Laws. To the Company’s knowledge, the operations of the
Company, the Guarantors and the Company’s subsidiaries are, and have been, conducted at all times
in compliance in all material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the Company,
the Guarantors or any of the Company’s Significant Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, the Guarantors or any of the
Company’s Significant
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Subsidiaries, threatened, except for any such action, suit or proceeding as
would not be reasonably be expected to have a Material Adverse Change.
ee) No Conflict with OFAC Laws. None of the Company, the Guarantors or any of the Company’s
Significant Subsidiaries nor, to the knowledge of the Company or the Guarantors, any director,
officer, agent, employee or affiliate of the Company or any of the Guarantors is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
ff) Compliance with Environmental Laws. Except as disclosed in the Disclosure Package and the
Prospectus (i) to the knowledge of the Company, there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or any of their
predecessors in interest) at, upon or from any of the property now or previously owned or leased by
the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or would not be reasonably likely to have, singularly or in
the aggregate with all such violations and remedial actions, a Material Adverse Change; and (ii) to
the knowledge of the Company, there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances with respect to the Company or any of its subsidiaries, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse
Change; and the terms “hazardous wastes,” “toxic wastes,” “hazardous substances” and “medical
wastes” shall have the meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
gg) ERISA Compliance. Except as disclosed in the Disclosure Package and the Prospectus, the
Company is in compliance in all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ERISA”); no “reportable event” (as defined in ERISA)
has occurred with respect to any “pension plan” (as defined in ERISA) subject to Title IV of ERISA
for which the Company would have any material liability; the Company has not incurred and does not
expect to incur any liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any such “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published interpretations thereunder (the
“Code”) which, in the case of each of the foregoing clauses (i) and (ii), would result in a
Material Adverse Change (other than contributions in the normal course which are not in default);
and each “pension plan” for which the Company would
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have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would reasonably be expected to cause the
loss of such qualification.
hh) Xxxxxxxx-Xxxxx Compliance. There is and has been no failure on the part of the Company
and any of the Company’s directors or officers, in their capacities as such, to comply in all
material respects with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
ii) Internal Controls and Procedures. The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles and
to maintain accountability for assets, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with
respect thereto. The Company’s internal controls over financial reporting were effective as of
December 31, 2010 and, to the Company’s knowledge, continue to be effective in all material
respects. The Company is not aware of any material weaknesses in its internal control over
financial reporting. The historical financial information in the Preliminary Prospectus or the
Prospectus with regard to the performance of Engility and National Security Solutions for the nine
months ended September 30, 2011 were prepared by the Company in good faith.
jj) Disclosure Controls and Procedures. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; and such disclosure controls and procedures have been designed to
ensure that information required to be disclosed in the Company’s reports under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the Commission’s
rules and forms, and that such information is accumulated and communicated to the Company’s
management, including its principal executive officer and principal financial officer, in order to
allow timely decisions regarding required disclosures; and
such disclosure controls and procedures were effective at the reasonable assurance level at
December 31, 2010 and, to the Company’s knowledge, continue to be effective at the reasonable
assurance level.
kk) Ranking. The Notes and the Guarantees will be pari passu with all existing and future
unsecured and unsubordinated indebtedness of the Company and the Guarantors, as applicable.
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
11
Section 2. Purchase, Sale and Delivery of the Notes.
a) The Notes. The Company agrees to issue and sell to the several Underwriters, severally and
not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, each Underwriter agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Notes set forth opposite such Underwriter’s name on
Schedule A at a purchase price of 98.673% of the principal amount of the Notes, payable on
the Closing Date. The Notes will have annexed thereto a notation relating to the Guarantees.
b) The Closing Date. Delivery of certificates for the Notes in global form to be purchased by
the Underwriters and payment therefor shall be made at the offices of Xxxxxx & Xxxxxxx LLP at 000
Xxxxx Xxxxxx, Xxx Xxxx, XX (or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m., New York City time, on November 22, 2011, or such other time and
date as the Underwriters and the Company shall mutually agree (the time and date of such closing
are called the “Closing Date”).
c) Public Offering of the Notes. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
e) Delivery of the Notes. The Company and the Guarantors shall deliver, or cause to be
delivered, to the Representatives for the accounts of the several Underwriters certificates for the
Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The certificates for the Notes
shall be in such denominations and registered in such names and denominations as the
Representatives shall have requested at least two full business days prior to the Closing Date and
shall be made available for inspection on the business day preceding the Closing Date at a location
in New York City, as the Representatives may designate. Time shall be of the essence, and delivery
at the time and place specified in this Agreement is a further condition to the obligations of the
Underwriters.
Section 3. Covenants of the Company.
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The Company and the Guarantors jointly and severally covenant and agree with each Underwriter
as follows:
a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus
or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus
Delivery Period, (iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule
424 of the Securities Act and will take such steps as it deems necessary to ascertain promptly
whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 of the
Securities Act was received for filing by the Commission and, in the event that it was not, it will
promptly file such document. During the Prospectus Delivery Period, the Company will use its
reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
b) Filing of Amendments. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the Securities Act (the “Prospectus Delivery Period”),
the Company will give the Representatives notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b) of the Securities Act), or
any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant
to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
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d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package
or the Prospectus, as the case may be, will not include 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 existing at the Initial Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or amend or supplement the Disclosure Package or
the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the
Representatives of any such event, development or condition and (2) promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement, the Disclosure Package or
the Prospectus comply with such law, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the Underwriters may reasonably
request.
f) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes. The Company and
each of the Guarantors shall not be required to qualify to transact business or to take any action
that would subject the Company or any Guarantor to general service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to taxation as a
foreign business. The Company and each of the Guarantors will advise the Representatives promptly
of the suspension of the qualification or registration of (or any such exemption relating to) the
Notes for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any
order suspending such qualification, registration or exemption, the Company and each Guarantor
shall use their respective best efforts to obtain the withdrawal thereof at the earliest possible
moment.
14
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption “Use of Proceeds” in the Preliminary Prospectus and
the Prospectus.
h) Depositary. The Company will cooperate with the Underwriters and use its best efforts to
permit the Notes to be eligible for clearance and settlement through the facilities of the
Depositary.
i) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the
date hereof and ending on the Closing Date, the Company will not, without the prior written consent
of the Representatives (which consent may be withheld at the sole discretion of the
Representatives), directly or indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file
any registration statement under the Securities Act in respect of, any debt securities of the
Company similar to the Notes or securities exchangeable for or convertible into debt securities
similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
j) Final Term Sheet. The Company and the Guarantors will prepare a final term sheet
containing only a description of the Notes, in a form approved by the Underwriters and attached
substantially in the form of Annex III hereto, and will file such term sheet pursuant to
Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the
“Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for
purposes of this Agreement.
k) Permitted Free Writing Prospectuses. The Company and the Guarantors represent that they
have not made, and agree that, unless they obtain the prior written consent of the Representatives,
they will not make, any offer relating to the Notes that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405
of the Securities Act) required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act; provided that the prior written consent of the
Representatives shall be deemed to have been given in respect of any Issuer Free Writing
Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to
or deemed to be consented to by the Representatives is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the
case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii)
it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of
the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping. The Company consents to the use
by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus”
as defined in Rule 433 under the Securities Act, and (b) contains only (i) information describing the preliminary terms of the
Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii)
information that describes the final terms of the Notes or their offering and that is included in
the Final Term Sheet of the Company contemplated in Section 3(k).
15
l) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time
during the Prospectus Delivery Period, the Company or any Guarantor receives from the Commission a
notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf
registration statement form, the Company and the Guarantors will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or post-effective amendment on the
proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use their
best efforts to cause such registration statement of post-effective amendment to be declared
effective and (iv) promptly notify the Representatives of such effectiveness. The Company and the
Guarantors will take all other action necessary or appropriate to permit the public offering and
sale of the Notes to continue as contemplated in the registration statement that was the subject of
the Rule 401(g)(2) notice or for which the Company or any Guarantor has otherwise become
ineligible. References herein to the Registration Statement shall include such new registration
statement or post-effective amendment, as the case may be.
m) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the
Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the
Securities Act.
n) Compliance with Xxxxxxxx-Xxxxx Act. During the Prospectus Delivery Period, the Company and
the Guarantors will comply with all applicable securities and other laws, rules and regulations,
including, without limitation, the Xxxxxxxx-Xxxxx Act, and use their best efforts to cause the
Company’s and each Guarantor’s respective directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without limitation, the provisions of the
Xxxxxxxx-Xxxxx Act.
o) No Manipulation of Price. Neither the Company nor any Guarantor will take, directly or
indirectly, any action designed to cause or result in, the stabilization or manipulation of the
price of the Notes to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company or the Guarantors of any one or more of the
foregoing covenants or extend the time for their performance.
Section 4. Payment of Expenses. The Company and the Guarantors agree to pay all
costs, fees and expenses incurred in connection with the performance of their obligations hereunder
and in connection with the transactions contemplated hereby, including without limitation (i) all
expenses incident to the issuance and delivery of the Notes (including all printing and engraving
costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Notes, (iii) all fees and expenses of the Company’s or any Guarantor’s counsel,
independent public or certified public accountants and other advisors
to the Company or any Guarantor, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free
Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and
supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v) all
filing fees, reasonable attorneys’ fees and expenses incurred by the Company, the Guarantors
16
or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and sale under the state
securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky
Survey” or memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by
the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the terms of the sale of the
Notes, (vii) the fees and expenses of the Trustee (including the fees and disbursements of counsel
for the Trustee) in connection with the Indenture and the Notes, (viii) any fees payable in
connection with the rating of the Notes with the ratings agencies, (ix) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company in connection with approval of
the Notes by the Depositary for “book-entry” transfer, (x) all other fees, costs and expenses
referred to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and
expenses incurred in connection with the performance of their obligations hereunder for which
provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections
6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the
Closing Date as though then made and to the timely performance by the Company of its covenants and
other obligations hereunder, and to each of the following additional conditions:
a) Effectiveness of Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from
the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall
have been filed with the Commission in accordance with Rule 424(b) of the Securities Act (or any
required post-effective amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A of the Securities Act).
b) Accountants’ Comfort Letter. On the date hereof, the Representatives shall have received
from PricewaterhouseCoopers LLC, an independent registered public accounting firm
for the Company, a letter dated the date hereof addressed to the Underwriters, in form and
substance satisfactory to the Representatives with respect to the audited and unaudited financial
statements and certain financial information contained in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received
from PricewaterhouseCoopers LLP, independent public or certified public accountants
17
for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to
the effect that they reaffirm the statements made in the letter furnished by them pursuant to
subsection (b) of this Section 5, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days prior to the Closing Date.
d) No Objection. If the Registration Statement and/or the offering of the Notes has been
filed with FINRA for review, FINRA shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
e) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (c) of this Section 5 which is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
f) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have
received the favorable opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Company and the Guarantors, dated as of such Closing Date, substantially in the
form of which is attached as Exhibit B-1 and Exhibit B-2.
g) Opinion of Xxxxxx X. Post. On the Closing Date, the Representatives shall have received
the favorable opinion of Xxxxxx X. Post, General Counsel of the Company, dated as of such Closing
Date, substantially in the form of which is attached as Exhibit C.
h) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall
have received the favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel
for the Underwriters, dated as of such Closing Date, with respect to such matters as may be
reasonably requested by the Underwriters.
i) Officers’ Certificate. On the Closing Date, the Representatives shall have received a
written certificate from the Company and the Guarantors executed by their respective Chairman of
the Board or their respective Chief Executive Officer and by their respective Chief Financial
Officer or Chief Accounting Officer, dated as of such Closing Date, to the effect that:
18
(i) the Company and the Guarantors have received no stop order suspending the
effectiveness of the Registration Statement, and no proceedings for such purpose have been
instituted or threatened by the Commission;
(ii) the Company and the Guarantors have not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form;
(iii) the representations, warranties and covenants of the Company and the Guarantors
set forth in Section 1 of this Agreement are true and correct with the same force and effect
as though expressly made on and as of such Closing Date; and
(iv) the Company and the Guarantors have complied with all the agreements hereunder
and satisfied all the conditions on their part to be performed or satisfied hereunder at or
prior to such Closing Date.
j) Additional Documents. On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Notes as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated
by the Representatives pursuant to Section 5 or 11(i) or (iv), or if the sale to the Underwriters
of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company or any Guarantor to perform any agreement herein or to comply with any
provision hereof, the Company and the Guarantors agree to reimburse the Representatives and the
other Underwriters (or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses (including fees and
disbursements of counsel) that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale of the
Notes, including but not limited to fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company and the Guarantors hereby jointly and
severally agree to indemnify and hold harmless each Underwriter, its directors,
19
officers, and employees, and each person, if any, who controls any Underwriter within the meaning of the
Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter or such director, officer, employee or controlling person may
become subject, under the Securities Act, the Exchange Act or other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or
is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not
misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact
contained in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and to reimburse each
Underwriter and each such director, officer, employee and controlling person for any and all
expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives)
as such expenses are reasonably incurred by such Underwriter or such director, officer, employee or
controlling person in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement, any Company Additional Written Communication, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company and the Guarantors may otherwise have.
(b) Indemnification of the Company and the Guarantors. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Guarantors, each of their
respective directors, each of their respective officers who signed the Registration Statement and
each person, if any, who controls the Company or the Guarantors within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, the Guarantors or any such respective director,
officer or controlling person may become subject, under the Securities Act, the Exchange Act,
or other federal or state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Company Additional
Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or alleged omission
20
xxxxxxxxx of 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 the Registration Statement, any Company Additional Written Communication, any Issuer
Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein; and to reimburse
the Company, the Guarantors or any such respective director, officer or controlling person for any
legal and other expense reasonably incurred by the Company, any Guarantor or any such respective
director, officer or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action. The Company and
the Guarantors hereby acknowledge that the only information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration Statement, any
Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set forth
in paragraphs 8 and 9 under the heading entitled “Underwriting” in the Preliminary Prospectus and
the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any
liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing 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 for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, such indemnified party shall have the right to employ its own counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the
employment of such counsel has been specifically authorized in writing by the indemnifying party;
(ii) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably
satisfactory to the indemnified party; or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party and the indemnifying party or any affiliate
of the indemnifying party, and such indemnified party shall have reasonably concluded that either
(x) there may be one or more legal defenses available to it which are different from or additional
to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a
conflict may exist between such indemnified party and the indemnifying party or such affiliate of
the indemnifying party (it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm
21
of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by the
Representatives and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). Upon receipt of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence, in which case the
reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent (i)
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other
hand, from the offering of the Notes pursuant to this Agreement 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 and the Guarantors, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the
other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the offering of the Notes
pursuant
22
to this Agreement (before deducting expenses) received by the Company, and the total
underwriting discount received by the Underwriters, in each case as set forth on the front cover
page of the Prospectus bear to the aggregate initial public offering price of the Notes as set
forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on
the other hand, shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the
other hand, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each director, officer, and employee of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company and the Guarantors, each officer of the Company and the Guarantors
who signed the Registration Statement, and each person, if any, who controls the Company or the Guarantors with the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
Section 10. Default of One or More of the Several Underwriters. If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of
such Notes set forth opposite their respective names on Schedule A bears to the aggregate
principal amount of such Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as may be specified by the Representatives with the
consent of the non-defaulting Underwriters, to purchase such Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date, any one or more of the Underwriters shall fail or refuse to purchase such
23
Notes and the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10%
of the aggregate principal amount of Notes to be purchased on such date, and arrangements
satisfactory to the Representatives and the Company for the purchase of such Notes are not made
within 48 hours after such default, this Agreement shall terminate without liability of any party
to any other party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination. In any such case, either the Representatives or the
Company shall have the right to postpone the Closing Date, but in no event for longer than seven
days in order that the required changes, if any, to the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or
arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Company’s securities shall have been suspended or limited by
the Commission or the New York Stock Exchange, or trading in securities generally on either the
Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of such stock exchanges by the
Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal
or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity involving the United States, or any change in
the United States or international financial markets, or any substantial change or development
involving a prospective substantial change in United States’ or international political, financial
or economic conditions, as in the judgment of the Representatives is material and adverse and makes
it impracticable or inadvisable to market the Notes in the manner and on the terms described in the
Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in
the judgment of the Representatives there shall
have occurred any Material Adverse Change; or (v) there shall have occurred a material
disruption in commercial banking or securities settlement or clearance services. Any termination
pursuant to this Section 11 shall be without liability of any party to any other party except as
provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall
survive such termination and remain in full force and effect.
Section 12. No Fiduciary Duty. Each of the Company and the Guarantors acknowledges
and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the
determination of the public offering price of the Notes and any related discounts and commissions,
is an arm’s-length commercial transaction between the Company and the Guarantors, on the one hand,
and the several Underwriters, on the other hand, and the Company and the Guarantors are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the financial advisor, agent or fiduciary of the Company, the Guarantors,
or any of their respective affiliates, stockholders,
24
creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in
favor of the Company or the Guarantors with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or the Guarantors on other matters) and no Underwriter has any
obligation to the Company or the Guarantors with respect to the offering contemplated hereby except
the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their
respective affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Company and the Guarantors and that the several Underwriters have no
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company and the Guarantors have
consulted their own legal, accounting, regulatory and tax advisors to the extent deemed
appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantors and the several Underwriters with respect to the subject matter
hereof. The Company and the Guarantors hereby waive and release, to the fullest extent permitted
by law, any claims that the Company may have against the several Underwriters with respect to any
breach or alleged breach of agency or fiduciary duty.
Section 13. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company and the
Guarantors, of their respective officers and of the several Underwriters set forth in or made
pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of
any (A) investigation, or statement as to the results thereof, made by or on behalf of any
Underwriter, the officers or employees of any Underwriter, or any person controlling the
Underwriter, the Company, the Guarantors, the officers or employees of the Company or the
Guarantors, or any person controlling the Company or the Guarantors, as the case may be or (B)
acceptance of the Notes and payment for them hereunder and (ii) will survive delivery of and
payment for the Notes sold hereunder and any termination of this Agreement.
Section 14. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attn: Syndicate Registration
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attn: Syndicate Registration
or
25
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets Syndicate Desk
fax: (000) 000-0000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets Syndicate Desk
fax: (000) 000-0000
or
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Incorporated
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: High Grade Debt Capital Markets Transaction Management/Legal
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxx X. Xxxxxxxxx XX
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxx X. Xxxxxxxxx XX
If to the Company or the Guarantors:
L-3 Communications Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxx
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees, agents and controlling persons referred to in
Sections 8 and 9, and in each case their respective successors, and no other person will have any
26
right or obligation hereunder. The term “successors” shall not include any purchaser of the Notes
as such from any of the Underwriters merely by reason of such purchase.
Section 16. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
Section 18. General Provisions. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the
Disclosure Package and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
27
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement among the Company, the Guarantors and the
several Underwriters in accordance with its terms.
| Very truly yours, L-3 COMMUNICATIONS CORPORATION, as Issuer |
||||
| By: | /s/ Xxxxxx X. Post | |||
| Name: | Xxxxxx X. Post | |||
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |||
Guarantors:
BROADCAST SPORTS INC.
D.P. ASSOCIATES, INC.
ELECTRODYNAMICS, INC.
INTERNATIONAL RESOURCES GROUP LTD.
INTERSTATE ELECTRONICS CORPORATION
LINCOM WIRELESS, INC.
L-3 CHESAPEAKE SCIENCES CORPORATION
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS CORPORATION
L-3 COMMUNICATIONS CYTERRA CORPORATION
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC.
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC.
L-3 COMMUNICATIONS EO/IR, INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC.
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC
L-3 COMMUNICATIONS INVESTMENTS INC.
L-3 COMMUNICATIONS XXXXX ASSOCIATES, INC.
L-3 COMMUNICATIONS MARIPRO, INC.
L-3 COMMUNICATIONS MOBILE-VISION, INC.
L-3 COMMUNICATIONS NOVA ENGINEERING, INC.
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC.
L-3 COMMUNICATIONS SHARED SERVICES, LLC
BROADCAST SPORTS INC.
D.P. ASSOCIATES, INC.
ELECTRODYNAMICS, INC.
INTERNATIONAL RESOURCES GROUP LTD.
INTERSTATE ELECTRONICS CORPORATION
LINCOM WIRELESS, INC.
L-3 CHESAPEAKE SCIENCES CORPORATION
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS CORPORATION
L-3 COMMUNICATIONS CYTERRA CORPORATION
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC.
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC.
L-3 COMMUNICATIONS EO/IR, INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC.
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC
L-3 COMMUNICATIONS INVESTMENTS INC.
L-3 COMMUNICATIONS XXXXX ASSOCIATES, INC.
L-3 COMMUNICATIONS MARIPRO, INC.
L-3 COMMUNICATIONS MOBILE-VISION, INC.
L-3 COMMUNICATIONS NOVA ENGINEERING, INC.
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC.
L-3 COMMUNICATIONS SHARED SERVICES, LLC
L-3 COMMUNICATIONS SONOMA EO, INC.
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC
L-3 COMMUNICATIONS WESTWOOD CORPORATION
L-3 FUZING AND ORDNANCE SYSTEMS, INC.
L-3 G.A. INTERNATIONAL, INC.
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.
L-3 SERVICES, INC.
L-3 UNMANNED SYSTEMS, INC.
PAC ORD INC.
POWER PARAGON, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD SWITCHGEAR INC.
TITAN FACILITIES, INC.
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC
L-3 COMMUNICATIONS WESTWOOD CORPORATION
L-3 FUZING AND ORDNANCE SYSTEMS, INC.
L-3 G.A. INTERNATIONAL, INC.
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.
L-3 SERVICES, INC.
L-3 UNMANNED SYSTEMS, INC.
PAC ORD INC.
POWER PARAGON, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD SWITCHGEAR INC.
TITAN FACILITIES, INC.
As Guarantors
| By: | /s/ Xxxxxx X. Post | |||||
| Name: | ||||||
| Title: | Senior Vice President, Secretary |
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a Delaware limited partnership
As a Guarantor
| By: L-3 COMMUNICATIONS AIS GP CORPORATION, as General Partner | ||||||
| By: | /s/ Xxxxxx X. Post | |||||
| Name: | ||||||
| Title: | Senior Vice President, Secretary | |||||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
DEUTSCHE BANK SECURITIES INC.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
several Underwriters named in
the attached Schedule A.
By:
|
Barclays Capital Inc. | |||
By:
|
/s/ Xxxxxx Xxxxxxx
|
|||
| Title: Director | ||||
By:
|
Deutsche Bank Securities Inc. | |||
By:
|
/s/ Xxxxxxx Xxxxx
|
|||
| Title: Director | ||||
By:
|
/s/ Xxxx Xxxxxx
|
|||
| Title: Managing Director | ||||
By:
|
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx | |||
| Incorporated | ||||
By:
|
/s/ Happy Daily
|
|||
| Title: Managing Director |
SCHEDULE A
| Aggregate | ||||
| Principal | ||||
| Amount of | ||||
| Notes to be | ||||
| Underwriters | Purchased | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
$ | 90,000,000 | ||
Barclays Capital Inc. |
$ | 90,000,000 | ||
Deutsche Bank Securities Inc. |
$ | 90,000,000 | ||
Scotia Capital (USA) Inc. |
$ | 40,000,000 | ||
Suntrust Xxxxxxxx Xxxxxxxx, Inc. |
$ | 40,000,000 | ||
Xxxxx Fargo Securities, LLC |
$ | 40,000,000 | ||
Mitsubishi UFJ Securities (USA), Inc. |
$ | 20,000,000 | ||
Credit
Agricole Securities (USA) Inc. |
$ | 20,000,000 | ||
ANZ Securities, Inc. |
$ | 15,000,000 | ||
BNY Mellon Capital Markets, LLC |
$ | 15,000,000 | ||
Comerica Securities Inc. |
$ | 10,000,000 | ||
HSBC Securities (USA) Inc. |
$ | 10,000,000 | ||
SMBC Nikko Capital Markets Limited |
$ | 10,000,000 | ||
U.S. Bancorp
Investments, Inc. |
$ | 10,000,000 | ||
Total |
$ | 500,000,000 | ||
Sch-1
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated November 17, 2011.
A-1
ANNEX II
Company Additional Written Communication
None
A-2
ANNEX III
L-3 COMMUNICATIONS CORPORATION
Final Term Sheet
$500,000,000 3.95% Senior Notes due 2016
Issuer:
|
L-3 Communications Corporation | |
Security Type:
|
Senior Unsecured Notes | |
Principal Amount:
|
$500,000,000 | |
Ratings (Xxxxx’x/ S&P / Fitch):*
|
Baa3/ BBB-/ BBB- | |
Maturity Date:
|
November 15, 2016 | |
Trade Date:
|
November 17, 2011 | |
Settlement Date:
|
November 22, 2011; T+3 | |
Interest Payment Dates:
|
May 15 and November 15, commencing on May 15, 2012 | |
Interest Rate:
|
3.95% | |
Yield to Maturity:
|
4.113% | |
Spread to Benchmark Treasury:
|
T+325 bps | |
Benchmark Treasury:
|
1.000% due October 31, 2016 | |
Benchmark Treasury Price and
Yield:
|
100-211/4 / 0.863% | |
Price to Public
|
99.273% | |
Optional Redemption:
|
Make-whole redemption at T+50 bps at any time prior to maturity. | |
CUSIP / ISIN:
|
502413 BB2 / US502413BB28 | |
Joint Book-Running Managers:
|
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated |
|
| Barclays Capital Inc. | ||
| Deutsche Bank Securities Inc. | ||
| Scotia Capital (USA) Inc | ||
| SunTrust Xxxxxxxx Xxxxxxxx, Inc. | ||
| Xxxxx Fargo Securities, LLC | ||
Joint Lead Managers:
|
Mitsubishi UFJ Securities (USA), Inc. | |
| Calyon Securities (USA) Inc. |
A-3
Co-Managers:
|
ANZ Securities, Inc. | |
| BNY Mellon Capital Markets, LLC | ||
| Comerica Securities Inc. | ||
| HSBC Securities (USA) Inc. | ||
| SMBC Nikko Capital Markets Limited | ||
| U.S. Bancorp Investments Inc. |
| * | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the active joint book-running managers
can arrange to send you the prospectus if you request it by (i) Xxxxxxx Xxxxx, Xxxxxx Xxxxxx &
Xxxxx Incorporated at 0-000-000-0000 or
xx.xxxxxxxxxx_xxxxxxxx@xxxx.xxx; (ii) Barclays Capital Inc.
at 0-000-000-0000; or (iii) Deutsche Bank Securities Inc. at 1-800-503-4611.
A-4
EXHIBIT A
Guarantors
BROADCAST SPORTS INC., a Delaware corporation
D.P. ASSOCIATES, INC., a Virginia corporation
ELECTRODYNAMICS, INC., an Arizona corporation
INTERNATIONAL RESOURCES GROUP LTD., a Delaware corporation
INTERSTATE ELECTRONICS CORPORATION, a California corporation
LINCOM WIRELESS, INC., a Delaware corporation
L-3 CHESAPEAKE SCIENCES CORPORATION, a Maryland corporation
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC., a Florida corporation
L-3 COMMUNICATIONS AIS GP CORPORATION, a Delaware corporation
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC., a Delaware corporation
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS CORPORATION, an Ohio corporation
L-3 COMMUNICATIONS CYTERRA CORPORATION, a Delaware corporation
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC., a California corporation
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC., a Delaware corporation
L-3 COMMUNICATIONS EO/IR, INC., a Florida corporation
L-3 COMMUNICATIONS ESSCO, INC., a Delaware corporation
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC, a Delaware limited liability company
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC, a Delaware limited liability company
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC., a Delaware corporation
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC, a Delaware limited liability company
L-3 COMMUNICATIONS INTEGRATED SYSTEMS, L.P., a Delaware limited partnership
L-3 COMMUNICATIONS INVESTMENTS INC., a Delaware corporation
L-3 COMMUNICATIONS XXXXX ASSOCIATES, INC., a Delaware corporation
L-3 COMMUNICATIONS MARIPRO, INC., a California corporation
L-3 COMMUNICATIONS MOBILE-VISION, INC., a New Jersey corporation
L-3 COMMUNICATIONS NOVA ENGINEERING, INC., an Ohio corporation
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC., a Delaware corporation
L-3 COMMUNICATIONS SHARED SERVICES, LLC, a Delaware limited liability company
L-3 COMMUNICATIONS SONOMA EO, INC., a California corporation
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC, a Delaware limited liability company
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC, a Delaware limited liability company
L-3 COMMUNICATIONS WESTWOOD CORPORATION, a Nevada corporation
L-3 FUZING AND ORDNANCE SYSTEMS, INC., a Delaware corporation
L-3 G.A. INTERNATIONAL, INC., a Florida corporation
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC., a Virginia corporation
L-3 SERVICES, INC., a Delaware corporation
D.P. ASSOCIATES, INC., a Virginia corporation
ELECTRODYNAMICS, INC., an Arizona corporation
INTERNATIONAL RESOURCES GROUP LTD., a Delaware corporation
INTERSTATE ELECTRONICS CORPORATION, a California corporation
LINCOM WIRELESS, INC., a Delaware corporation
L-3 CHESAPEAKE SCIENCES CORPORATION, a Maryland corporation
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC., a Florida corporation
L-3 COMMUNICATIONS AIS GP CORPORATION, a Delaware corporation
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC., a Delaware corporation
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS CORPORATION, an Ohio corporation
L-3 COMMUNICATIONS CYTERRA CORPORATION, a Delaware corporation
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC., a California corporation
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC., a Delaware corporation
L-3 COMMUNICATIONS EO/IR, INC., a Florida corporation
L-3 COMMUNICATIONS ESSCO, INC., a Delaware corporation
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC, a Delaware limited liability company
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC, a Delaware limited liability company
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC., a Delaware corporation
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC, a Delaware limited liability company
L-3 COMMUNICATIONS INTEGRATED SYSTEMS, L.P., a Delaware limited partnership
L-3 COMMUNICATIONS INVESTMENTS INC., a Delaware corporation
L-3 COMMUNICATIONS XXXXX ASSOCIATES, INC., a Delaware corporation
L-3 COMMUNICATIONS MARIPRO, INC., a California corporation
L-3 COMMUNICATIONS MOBILE-VISION, INC., a New Jersey corporation
L-3 COMMUNICATIONS NOVA ENGINEERING, INC., an Ohio corporation
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC., a Delaware corporation
L-3 COMMUNICATIONS SHARED SERVICES, LLC, a Delaware limited liability company
L-3 COMMUNICATIONS SONOMA EO, INC., a California corporation
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC, a Delaware limited liability company
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC, a Delaware limited liability company
L-3 COMMUNICATIONS WESTWOOD CORPORATION, a Nevada corporation
L-3 FUZING AND ORDNANCE SYSTEMS, INC., a Delaware corporation
L-3 G.A. INTERNATIONAL, INC., a Florida corporation
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC., a Virginia corporation
L-3 SERVICES, INC., a Delaware corporation
A-1
L-3 UNMANNED SYSTEMS, INC., a Texas corporation
PAC ORD INC., a Delaware corporation
POWER PARAGON, INC., a Delaware corporation
SPD ELECTRICAL SYSTEMS, INC., a Delaware corporation
SPD SWITCHGEAR INC., a Delaware corporation
TITAN FACILITIES, INC., a Virginia corporation
PAC ORD INC., a Delaware corporation
POWER PARAGON, INC., a Delaware corporation
SPD ELECTRICAL SYSTEMS, INC., a Delaware corporation
SPD SWITCHGEAR INC., a Delaware corporation
TITAN FACILITIES, INC., a Virginia corporation
A-2
