Exhibit 1.1
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COMPUTER SCIENCES CORPORATION
(a Nevada corporation)
6 3/4% Notes due June 15, 2006
7 3/8% Notes due June 15, 2011
UNDERWRITING AGREEMENT
Dated: June 8, 2001
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Table of Contents
UNDERWRITING AGREEMENT..................................................... 1
SECTION 1. Representations and Warranties................................. 3
(a) Representations and Warranties by Company......................... 3
(1) Compliance with Registration Requirements................... 3
(2) Incorporated Documents...................................... 4
(3) Independent Accountants..................................... 4
(4) Financial Statements........................................ 4
(5) No Material Adverse Change in Business...................... 4
(6) Good Standing of Company.................................... 5
(7) Good Standing of Designated Subsidiaries.................... 5
(8) Capitalization.............................................. 6
(9) Authorization of Agreement.................................. 6
(10) Authorization of Indenture.................................. 6
(11) Authorization of Securities................................. 6
(12) Description of Securities and Indenture..................... 6
(13) Absence of Defaults and Conflicts........................... 6
(14) Absence of Labor Dispute.................................... 7
(15) Absence of Proceedings...................................... 7
(16) Possession of Intellectual Property......................... 8
(17) Possession of Licenses and Permits.......................... 8
(18) Title to Property........................................... 8
(19) Tax Returns................................................. 9
(20) Environmental Laws.......................................... 9
(21) Investment Company Act...................................... 9
(22) Related Transactions........................................ 9
(b) Officer's Certificates............................................10
SECTION 2. Sale and Delivery to Underwriters; Closing.....................10
(a) Securities........................................................10
(b) Payment...........................................................10
(c) Examination of Global Note........................................10
SECTION 3. Covenants of Company...........................................10
(a) Compliance with Securities Regulations and Commission Requests....10
(b) Filing of Amendments..............................................11
(c) Delivery of Registration Statements...............................11
(d) Delivery of Prospectuses..........................................11
(e) Continued Compliance with Securities Laws.........................11
(f) Blue Sky Qualifications...........................................12
(g) Rule 158..........................................................12
(h) Use of Proceeds...................................................12
(i) Restriction on Sale of Securities.................................12
(j) Reporting Requirements............................................13
SECTION 4. Payment of Expenses............................................13
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(a) Expenses..........................................................13
(b) Termination of Agreement..........................................13
SECTION 5. Conditions of Underwriters' Obligations........................13
(a) Effectiveness of Registration Statement...........................14
(b) Opinions of Inside and Outside Counsel for Company................14
(c) Opinion of Counsel for Underwriters...............................14
(d) Officers' Certificate.............................................14
(e) Accountant's Comfort Letter.......................................14
(f) Bring-down Comfort Letter.........................................15
(g) Maintenance of Rating.............................................15
(h) Additional Documents..............................................15
(i) Termination of Agreement..........................................15
SECTION 6. Indemnification................................................15
(a) Indemnification of Underwriters...................................15
(b) Indemnification of Company, Directors and Officers................16
(c) Actions Against Parties; Notification.............................16
(d) Settlement without Consent if Failure to Reimburse................17
SECTION 7. Contribution...................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.18
SECTION 9. Termination of Agreement.......................................19
(a)..Termination; General..............................................19
(b) Liabilities.......................................................19
SECTION 10. Default by One or More of Underwriters.........................19
SECTION 11. Notices........................................................20
SECTION 12. Parties........................................................20
SECTION 13. GOVERNING LAW AND TIME.........................................20
SECTION 14. Effect of Headings.............................................20
SCHEDULES
Schedule A - List of Underwriters
Schedule B - Pricing Information
Schedule C - Jurisdictions of Qualification of Designated
Subsidiaries
EXHIBITS
Exhibit A - Form of Opinion of Company's Inside Counsel
Exhibit B - Form of Opinion of Company's Outside Counsel
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COMPUTER SCIENCES CORPORATION
(a Nevada corporation)
$500,000,000
6 3/4% Notes due June 15, 2006
$500,000,000
7 3/8% Notes due June 15, 2011
UNDERWRITING AGREEMENT
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June 8, 2001
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
Dresdner Kleinwort Wasserstein Securities LLC
First Union Securities, Inc.
Scotia Capital (USA) Inc.
Wells Fargo Brokerage Services, LLC
c/o Goldman, Sachs & Co.
One New York Plaza
New York, New York 10004
Ladies and Gentlemen:
Computer Sciences Corporation, a Nevada corporation (the "Company"),
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confirms its agreement with Goldman, Sachs & Co. and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters";
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which term shall also include any underwriter substituted as provided in
Section 10 hereof), for whom Goldman, Sachs & Co. is acting as representative
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(in such capacity, the "Representative"), with respect to the issue and sale
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by the Company and the purchase by the Underwriters, acting severally and not
jointly, of the respective principal amounts set forth in said Schedule A of
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$500,000,000 aggregate principal amount of the Company's 6 3/4% Notes due
June 15, 2006 (the "Five-Year Securities") and $500,000,000 aggregate
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principal amount of the Company's 7 3/8% Notes due June 15, 2011 (the
"Ten-Year Securities" and, together with the Five-Year Securities, the
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"Securities"). The Securities are to be issued pursuant to an indenture for
the senior debt securities described therein, dated as of February 26, 2001
(the "Senior Indenture"), between the Company and Citibank, N.A., a national
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banking association, as trustee (the "Trustee"), to be supplemented by a
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supplemental indenture to be executed at the Closing Time between the Company
and the
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Trustee (the "Supplemental Indenture" and the Senior Indenture, as
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supplemented by the Supplemental Indenture, the "Indenture").
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The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-52710) and
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pre-effective Amendment No. 1 thereto for the registration of debt and equity
securities of the Company, including the Securities (the "Shelf Securities"),
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under the Securities Act of 1933, as amended (the "1933 Act"), and the
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offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"). Such registration statement has been declared
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effective by the Commission and, at the Closing Time, the Indenture will be
duly qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). Such registration statement, as amended at the time it became
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effective, or, if a post-effective amendment is filed with respect thereto,
as amended thereby at the time of such post-effective amendment's
effectiveness, including, in each case, the information, if any, deemed to be
a part thereof at the time of its effectiveness pursuant to Rule 430A of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434 of the 1933
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Act Regulations (the "Rule 434 Information"), is referred to herein as the
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"Registration Statement"; and the prospectus constituting a part of the
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Registration Statement, as supplemented by each prospectus supplement
relating to the offering of the Securities (whether or not such prospectus
supplement is required to be filed with the Commission pursuant to Rule 434
of the 1933 Act Regulations), in the forms first furnished to the
Underwriters by the Company to confirm sales of the Securities, including any
such prospectus supplement filed pursuant to Rule 424(b) (the
"Prospectus Supplement"), are collectively referred to herein as the
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"Prospectus"; provided, however, that all references to the "Registration
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Statement" and the "Prospectus" or any amendments or supplements thereto
shall also be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution hereof; provided, further, that the
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Prospectus Supplement shall be deemed to have supplemented the Prospectus
only with respect to the offering of the Shelf Securities to which it
relates. If the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all
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references to "Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement; provided that, if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the prospectus and the
applicable term sheet or abbreviated term sheet (the "Term Sheet"), as the
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case may be, in the forms first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references to
the date of the Prospectus shall mean the date of the Term Sheet. A
"preliminary prospectus supplement" shall be deemed to refer to each
prospectus supplement relating to the Securities filed by the Company
pursuant to the 1933 Act containing a "Subject to Completion" legend as
described in paragraph 10 of Item 501 of Regulation S-K of the 1933 Act
Regulations. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, the Prospectus or any Term Sheet or any amendment or supplement
to any of the
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foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
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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, any preliminary
prospectus, preliminary prospectus supplement or the Prospectus shall be
deemed to mean and include all such financial statements and schedules and
other information which is incorporated by reference therein, as of the
effective date of the Registration Statement, or as of the date of any
preliminary prospectus, preliminary prospectus supplement or the Prospectus,
as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by Company. The Company represents
and warrants to each Underwriter as of the date hereof and as of the Closing
Time referred to in Section 2(b) hereof and agrees with each Underwriter, as
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follows:
(1) Compliance with Registration Requirements.
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The Company meets the requirements for use of Form S-3 under
the 1933 Act. The Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or, to the knowledge of the Company, are
threatened by the Commission, and any request on the part of the Commission
for additional information has been complied with.
As of the applicable effective date of the Registration Statement and
any amendment or supplement thereto and at the Closing Time, the Registration
Statement (as amended or supplemented) complied or will comply, as the case
may be, in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not, as of the applicable effective date of
the Registration Statement and any amendment or supplement thereto, 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. The Registration Statement, as of the date hereof and at the
Closing Time, complies and will comply in all material respects with the 1939
Act and the rules and regulations promulgated thereunder (the
"1939 Act Regulations"). The Prospectus (taking into account any amendments
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or any applicable prospectus supplement contained therein), at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Time, did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Notwithstanding the foregoing,
the representations and warranties contained in this subsection shall not
apply to (i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the 1939 Act, and (ii) statements or omissions in the Registration Statement
or the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use therein. The
prospectus filed as part of the Registration Statement as originally filed or
as part of any amendment thereto complied or will comply, as the case may be,
in all material respects with the 1933 Act Regulations when so filed. If the
Company elects to rely upon Rule 434 of the 1933 Act Regulations, the Company
will comply with the requirements of Rule 434. Notwithstanding
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the foregoing, the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement or the
Prospectus.
(2) Incorporated Documents.
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The documents incorporated or deemed to be incorporated by
reference in the Prospectus at the time they were or hereafter are filed with
the Commission complied and will comply in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and, when read
together with the other information in the Prospectus, at the date of the
Prospectus and at the Closing Date, do not and will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that
this representation, warranty and agreement shall not apply to pricing
information omitted in the preliminary prospectus or preliminary prospectus
supplement or to statements in or omissions from the Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through the Representative expressly for use in
the Prospectus.
(3) Independent Accountants.
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The accountants who certified the financial statements and
supporting schedules included in the Registration Statement and the
Prospectus (including any financial statements and supporting schedules
incorporated by reference therein) are independent certified public
accountants with respect to the Company, within the meaning of Regulation S-X
under the 1933 Act and the 1934 Act.
(4) Financial Statements.
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The financial statements, together with the related schedules
and notes, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly (i) the financial position of the
Company and its consolidated subsidiaries at the dates indicated, (ii) the
statement of operations of the Company and its consolidated subsidiaries, and
(iii) stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
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applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in or incorporated by reference in the
Registration Statement and the Prospectus present fairly in accordance with
GAAP the information required to be stated therein. The selected financial
information included in the Registration Statement and the Prospectus present
fairly the information shown therein and has been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus.
(5) No Material Adverse Change in Business.
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Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise described
therein, (i) there has been no material adverse change, or any development
involving a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, assets, properties or business affairs of
the Company and its subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (ii) there has
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been no material change in the capital stock of the Company or the long-term
debt of the Company and its subsidiaries and (iii) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
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(6) Good Standing of Company.
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The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Nevada and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement. The Company is duly qualified
as a foreign corporation to transact business in all 50 states of the United
States (except for the state of its incorporation) and is in good standing in
all 50 states of the United States.
(7) Good Standing of Designated Subsidiaries.
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(i) CSC Consulting, Inc., CSC Credit Services, Inc., CSC Healthcare,
Inc., Mynd Corporation and Computer Sciences UK Limited shall hereinafter
each be referred to as a "Designated Subsidiary" and collectively as the
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"Designated Subsidiaries." Each of the Designated Subsidiaries, other than
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Computer Sciences UK Limited, has been duly organized and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect (all such jurisdictions are
listed on Schedule C hereto). Except as otherwise disclosed in the
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Prospectus, all of the issued and outstanding capital stock of each such
Designated Subsidiary (other than Computer Sciences UK Limited) has been duly
authorized and validly issued, is fully paid and non-assessable and is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
None of the outstanding shares of capital stock of any Designated Subsidiary
(other than Computer Sciences UK Limited) was issued in violation of any
preemptive or similar rights arising by operation of law, or under the
charter or bylaws of any Designated Subsidiary (other than Computer Sciences
UK Limited) or under any agreement to which the Company or any Designated
Subsidiary (other than Computer Sciences UK Limited) is a party. The Company
has no "significant subsidiaries" (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act ("Rule 1-02")) other than the
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Designated Subsidiaries; provided, however, that the Company makes no
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representation that any Designated Subsidiary is a "significant subsidiary"
(as such term is defined in Rule 1-02).
(ii) Computer Sciences UK Limited has been duly incorporated under the
laws of the jurisdiction of its incorporation, has power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus. Except as otherwise disclosed in the
Prospectus, all of the issued and outstanding shares of Computer Sciences UK
Limited have been duly authorized and validly issued, are fully paid and non-
assessable and are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of Computer Sciences UK
Limited were issued in violation of any preemptive or similar rights arising
by operation of law, or under its memorandum and articles of association or
under an agreement to which the Company or Computer Sciences UK Limited is a
party.
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(8) Capitalization.
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The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances or
subsequent repurchases, if any, pursuant to employee benefit or option plans
referred to in the Company's amended Annual Report on Form 10-K for the year
ended March 31, 2000 or subsequent repurchases or cancellations, if any, of
restricted stock awards that do not vest upon termination of employment or
subsequent issuances of cash in lieu of fractional shares in connection with
the Company's acquisition of The Continuum Company, Inc.).
(9) Authorization of Agreement.
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This Agreement has been duly authorized, executed and
delivered by the Company.
(10) Authorization of Indenture.
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The Indenture has been duly authorized and, at the Closing
Time, will be duly qualified under the 1939 Act and, when duly executed and
delivered by the Company at the Closing Time, will constitute a legally valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights generally, or by
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(11) Authorization of Securities.
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The Securities have been duly authorized and, at the Closing
Time, will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment of the
purchase price therefor, will constitute legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights generally, or by
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form contemplated
by, and entitled to the benefits of, the Indenture.
(12) Description of Securities and Indenture.
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The Indenture and the Securities will conform in all material
respects to the respective statements relating thereto contained in the
preliminary prospectus supplement and the Prospectus. The Securities will be
in substantially the form previously delivered to the Underwriters;
provided, however, that the preliminary prospectus supplement excludes
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certain pricing information.
(13) Absence of Defaults and Conflicts.
---------------------------------
Neither the Company nor any of its subsidiaries is in
violation of its charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments"), except for such
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defaults that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Agreement, the Indenture, the Securities and
any other agreement or instrument entered into or issued or to be
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entered into or issued by the Company in connection with the transactions
contemplated hereby or thereby or by the Prospectus Supplement and the
consummation of the transactions contemplated herein and in the Prospectus
Supplement (including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the Prospectus
Supplement under the caption "Use of Proceeds") and compliance by the Company
with its obligations hereunder and under the Indenture and the Securities
have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or a Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, the Agreements and Instruments except
for such conflicts, breaches or defaults or liens, charges or encumbrances
that, individually or in the aggregate, would not result in a Material
Adverse Effect, nor will such action result in any violation of the
provisions of the charter, bylaws or the memorandum and articles of
association, as applicable, or other organizational documents of the Company
or any of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their assets or properties. As used herein, a
"Repayment Event" means any event or condition which gives the holder of any
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note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of
its subsidiaries prior to its scheduled maturity. No consent, approval,
authorization, order, license, registration or qualification of or with any
such government instrumentality or court is required for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications
as have been obtained under the 1933 Act, the 1939 Act and as may be required
under state securities or "blue sky" laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(14) Absence of Labor Dispute.
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No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company, is imminent, and
the Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, would result
in a Material Adverse Effect.
(15) Absence of Proceedings.
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To the knowledge of the Company, there are no actions, suits,
proceedings, inquiries or investigations before or brought by any court or
governmental agency or body, domestic or foreign, now pending or threatened,
against or applicable to the Company or any of its subsidiaries which (i)
could reasonably be expected, either individually or in the aggregate, to
result in a Material Adverse Effect, or (ii) would materially and adversely
affect the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder. There are no
contracts or other documents that are required to be filed as exhibits to the
Registration Statement which are not, or will not be, as of the business day
on which the Closing Time occurs, filed as exhibits thereto or incorporated
by reference therein as permitted by the 1933 Act Regulations.
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(16) Possession of Intellectual Property.
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The Company and its subsidiaries own or have the right to use
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated by
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them, and neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would result in a Material Adverse Effect.
(17) Possession of Licenses and Permits.
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The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
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foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to have any such Governmental
License would not, either individually or in the aggregate, have a Material
Adverse Effect. The Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure to comply would not, individually or in the aggregate, have a
Material Adverse Effect. All of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(18) Title to Property.
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The Company and its subsidiaries have good title to all real
property owned by the Company and its subsidiaries, as the case may be, and
good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (i) are described in
the Prospectus or (ii) do not, individually or in the aggregate, interfere
with the use made and proposed to be made of such property by the Company or
any of its subsidiaries, except where such interferences, either individually
or in the aggregate, would not have a Material Adverse Effect. All of the
leases and subleases to which the Company or any of its subsidiaries is a
party and under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, except where the
failure to be in full force and effect would not, either individually or in
the aggregate, have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries has received any notice of any claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any such leases or subleases, or affecting or questioning
the rights of the Company or any of its subsidiaries to the continued
possession of the leased or subleased premises under any such lease or
sublease, except where such claim, either individually or in the aggregate,
would not have a Material Adverse Effect.
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(19) Tax Returns.
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The Company and its subsidiaries have filed all federal,
state, local and foreign tax returns that are required to be filed or have
duly requested extensions thereof and have paid all taxes required to be paid
by any of them and any related assessments, fines or penalties, except for
any such tax, assessment, fine or penalty that is being contested in good
faith and by appropriate proceedings, and except where the failure to have
made such filings, paid such taxes or requested such extensions would not,
either individually or in the aggregate, have a Material Adverse Effect.
Adequate charges, accruals and reserves have been provided for in the
financial statements referred to in Section 1(a)(4) above in respect of all
---------------
federal, state, local and foreign taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been finally
determined or remains open to examination by applicable taxing authorities,
except where the failure to provide for such adequate charges, accruals and
reserves would not, individually or in the aggregate, have a Material Adverse
Effect.
(20) Environmental Laws.
------------------
Except as described in the Prospectus and except as would not,
individually or in the aggregate, result in a Material Adverse Effect, (i)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
-------------------
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (ii) the Company
------------------
and its subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Laws against the Company or any of its
subsidiaries and (iv) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or Environmental Laws.
(21) Investment Company Act.
----------------------
The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company"
or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
----------------------
(22) Related Transactions.
--------------------
The Company is not aware of any relationship, direct or
indirect, between or among the Company or any of its subsidiaries on the one
hand, and the directors and officers of the Company or any of its
subsidiaries on the other hand, which is required by the 1933 Act to be
described in the Registration Statement and the Prospectus and which is not
so described.
9
(b) Officer's Certificates.
----------------------
Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Representative or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing
-------------------------------------------
(a) Securities.
----------
On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees
to sell to each Underwriter and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the price set forth in Schedule B,
----------
the aggregate principal amount of Five-Year Securities and Ten-Year
Securities set forth in Schedule A opposite the name of such Underwriter,
----------
plus any additional principal amount of Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
----------
(b) Payment.
-------
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the account of the Underwriters
of one or more global notes representing the Five-Year Securities and the
Ten-Year Securities (collectively, the "Global Note"), with transfer taxes
-----------
payable in connection with the transfer to the Underwriters of the Securities
duly paid by the Company on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date
hereof, or such other time not later than ten business days after such date
as shall be agreed upon by the Representative and the Company (such time and
date of payment and delivery being herein called the "Closing Time").
------------
Goldman, Sachs & Co., individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
of the Global Note as described above.
(c) Examination of Global Note.
--------------------------
The Global Note will be made available for examination by the
Representative in The City of New York not later than 11:00 A.M. (Eastern
time) on the business day prior to the Closing Time.
SECTION 3. Covenants of Company.
--------------------
The Company covenants 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 430A or Rule 434, if applicable, and will notify the
Representative promptly, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information and (iv) of the issuance by the Commission of any
stop order
10
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or preliminary
prospectus supplement, or of the suspension of the qualification of the
Securities 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(b) and will take
such steps as it deems necessary to ascertain promptly whether the form of
Prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such Prospectus. The Company will make every reasonable effort 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.
--------------------
The Company will give the Representative notice of its intention to
file or prepare any amendment to the Registration Statement, any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative 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 Representative or counsel
for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements.
-----------------------------------
The Company has furnished or will deliver to the Representative and
counsel for the Underwriters, without charge, conformed 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
conformed copies of all consents and certificates of experts, and will also
deliver to the Representative, 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 copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T or by Rule 424(b).
(d) Delivery of Prospectuses.
------------------------
The Company has delivered to each Underwriter, without charge, as
many copies of the preliminary prospectus supplement as such Underwriter
reasonably requested, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T or by Rule 424(b).
(e) Continued Compliance with Securities Laws.
-----------------------------------------
The Company will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and
the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") so as to permit the completion of the distribution of
--------------------
the Securities as contemplated
11
in this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, 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 or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct
- ------------
such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, 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 Qualifications.
-----------------------
The Company will use its commercially reasonable best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other
jurisdictions as the Representative may designate and to maintain such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities; provided, however, that the Company shall not
-----------------
be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for as long as
may be necessary to complete the distribution of the Securities. The Company
will also supply the Underwriters with such information as is necessary for
the determination of the legality of the Securities for investment under the
laws of such jurisdictions as the Underwriters may request.
(g) Rule 158.
--------
The Company will timely file such reports pursuant to the 1934 Act
as are necessary in order to make generally available to its securityholders
as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(h) Use of Proceeds.
---------------
The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under "Use of
Proceeds".
(i) Restriction on Sale of Securities.
---------------------------------
During the period from the date hereof to and including the business
day following the Closing Time, the Company will not, without first obtaining
the written consent of the Representative, sell or transfer any of its debt
securities which are substantially similar to the Securities. Specifically,
the Company will not, directly or indirectly: (1) issue, sell, offer or
contract to sell any of its debt securities which are substantially similar
to the Securities; (2) grant any option for the sale of any of its debt
securities which are substantially similar to the Securities; or (3)
otherwise transfer or dispose of any of its debt securities which are
substantially similar to the Securities.
12
The preceding lockup provision applies to (1) the Company's debt
securities which are substantially similar to the Securities and (2) to any
of the Company's securities convertible into or exercisable or exchangeable
for its debt securities which are substantially similar to the Securities.
(j) Reporting Requirements.
----------------------
The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses
--------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
agreement among the Underwriters, the Indenture and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the
------------
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and preliminary
prospectus supplement, any Term Sheets and of the Prospectus and any
amendments or supplements thereto, (vii) printing and delivery to the
Underwriters of copies of any Blue Sky Survey relating to the Securities and
any supplement thereto, (viii) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities, and (ix) any fees payable in
connection with the rating of the Securities; provided, however, that the
-----------------
Underwriters will pay all expenses of their counsel incident to the
performance of their obligations under this Agreement and any agreement among
the Underwriters (other than fees and disbursements of Latham & Watkins
associated with state securities or blue sky laws relating to the
Securities).
(b) Termination of Agreement.
------------------------
If this Agreement is terminated by the Representative in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
--------- ---------------
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
---------------------------------------
The obligations of the several Underwriters hereunder are
subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company or any subsidiary of the Company delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
13
(a) Effectiveness of Registration Statement.
---------------------------------------
The Registration Statement has become effective and at the Closing
Time no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission, and 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. The Prospectus shall
have been filed with the Commission in accordance with Rule 424(b) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been filed
with the Commission in accordance with Rule 424(b).
(b) Opinions of Inside and Outside Counsel for Company.
--------------------------------------------------
At the Closing Time, the Representative shall have received the
favorable opinions, dated as of the Closing Time, of (i) Hayward D. Fisk, the
Vice President, General Counsel and Secretary of the Company, in the form
attached hereto as Exhibit A and (ii) Gibson, Dunn & Crutcher LLP, counsel
---------
for the Company, in the form attached hereto as Exhibit B. In giving such
---------
opinion, Gibson, Dunn & Crutcher LLP may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel satisfactory
to the Representative and counsel to the Underwriters. Gibson, Dunn &
Crutcher LLP may also state that, insofar as their opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates
of officers of the Company and its subsidiaries and certificates of public
officials.
(c) Opinion of Counsel for Underwriters.
-----------------------------------
At the Closing Time, the Representative shall have received the
favorable opinion, dated as of the Closing Time, of Latham & Watkins, counsel
for the Underwriters with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other related
matters as the Representative may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(d) Officers' Certificate.
---------------------
At the Closing Time, other than as described in the Prospectus,
there shall not have been, since the date hereof or since the respective
dates as of which information is given in the Prospectus, other than as
described in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force
------------
and effect as though expressly made at and as of the Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time and (iv) no
stop order suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such officer, no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(e) Accountant's Comfort Letter.
---------------------------
At the time of the execution of this Agreement the Representative
shall have received from Deloitte and Touche LLP a letter dated such date, in
form and substance satisfactory to the Representative containing statements
and information of
14
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter.
-------------------------
At the Closing Time, the Representative shall have received from
Deloitte and Touche LLP a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
Section 5(e), except that the specified date referred to shall be a date not
- ------------
more than three business days prior to the Closing Time.
(g) Maintenance of Rating.
---------------------
At the Closing Time, the Securities shall be rated at least "A2" by
Moody's Investors Service Inc., "A" by Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc., and "A+" from Fitch, Inc. Since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's other debt securities by
any "nationally recognized statistical rating agency," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act,
and no such organization shall have publicly announced that it has under
review, with negative implications, its rating of the Securities or any of
the Company's other debt securities.
(h) Additional Documents.
--------------------
At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representative and counsel for the
Underwriters.
(i) Termination of Agreement.
------------------------
If any condition specified in this Section 5 shall not have been
---------
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representative by notice to the Company at any time at or
prior to the Closing Time, and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except
---------
that Sections 1, 6, 7 and 8 shall survive any such termination and remain in
---------- - - -
full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters.
-------------------------------
The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense (including, without limitation,
any legal fees and expenses incurred in connection with any suit, action or
proceeding or any claim asserted and any amounts paid in settlement)
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, 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 arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus supplement
15
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;
provided, however, that this indemnity agreement shall not apply to any loss,
- -----------------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly for use in
the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto); and provided, further, that the indemnity agreement
-----------------
provided in this Section 6 with respect to any preliminary prospectus
supplement shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) if (a) the person
asserting any such loss, claim, damage or expense does so based upon an
untrue statement or alleged untrue statement of material fact or the omission
or alleged omission thereof in such preliminary prospectus supplement which
is eliminated or remedied in the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto); and
(b) such Prospectus (as amended or supplemented and exclusive of any
documents incorporated by reference therein) had not been sent or given to
such person within the time required by the 1933 Act and the Company has
satisfied its obligation pursuant to Section 3(d) hereof to furnish such
Underwriter with copies of the Prospectus (as amended or supplemented) prior
to the confirmation of the sale of the Securities.
(b) Indemnification of Company, Directors and Officers.
--------------------------------------------------
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus supplement or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto).
(c) Actions Against Parties; Notification.
-------------------------------------
Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability under this Section 6 to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 6(a) above, counsel to
------------
the indemnified parties shall be selected by the Representative, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
------------
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of
16
any such action; provided, however, that counsel to the indemnifying party
-----------------
shall not (except with the consent of the indemnified party) also be counsel
to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 6 or Section 7 hereof (whether or not the
--------- ---------
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim 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.
(d) Settlement without Consent if Failure to Reimburse.
--------------------------------------------------
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided, however, that the indemnifying party
-----------------
shall not be liable for any settlement of any proceeding effected without its
written consent if (x) such indemnifying party reimburses such indemnified
party in accordance with such aforesaid request to the extent the
indemnifying party in good faith considers such request to be reasonable and
(y) such indemnifying party provides written notice to the indemnified party
stating that in good faith the indemnifying party believes the unpaid balance
to be unreasonable and substantiating the reasons therefor, in each case
prior to the date of such settlement.
SECTION 7. Contribution.
------------
If the indemnification provided for in Section 6 hereof is
---------
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company
17
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to
the aggregate initial public offering price of the Securities 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 or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
---------
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
---------
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
---------
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
---------
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
---------
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery.
--------
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the Underwriters.
18
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General.
--------------------
The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
the effect of which, in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or delivery
of the Securities at the Closing Time on the terms and in the manner
contemplated in the Prospectus, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading
in any securities of the Company has been suspended or materially limited by
the Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities.
-----------
If this Agreement is terminated pursuant to this Section 9, such
---------
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof, and provided further that Sections 1, 6, 7
-------- ---------- - -
and 8 shall survive such termination and remain in full force and effect.
-
SECTION 10. Default by One or More of Underwriters.
--------------------------------------
If one or more of the Underwriters shall fail at the Closing
Time to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Representative shall
--------------------
have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representative shall not have completed such arrangements within
such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder, each
of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
19
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
----------
SECTION 11. Notices.
-------
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall
be directed to the Underwriters at Goldman, Sachs & Co., 1 Liberty Plaza, 7th
Floor, New York, New York 10006, attention of Don Hansen; and notices to the
Company shall be directed to it at 2100 East Grand Avenue, El Segundo,
California 90245, attention of Hayward D. Fisk, Esq. and Stephen E. Johnson,
Esq.
SECTION 12. Parties.
--------
This Agreement shall each inure to the benefit of and be
binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
- ---------- -
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
----------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PROVISIONS THEREOF. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
[signature page follows]
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
COMPUTER SCIENCES CORPORATION
By /s/ Leon J. Level
---------------------------------
Name: Leon J. Level
Title: Vice President &
Chief Financial Officer
By /s/ Thomas R. Irvin
---------------------------------
Name: Thomas R. Irvin
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
BANC ONE CAPITAL MARKETS, INC.
BNY CAPITAL MARKETS, INC.
DRESDNER KLEINWORT WASSERSTEIN SECURITIES LLC
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
WELLS FARGO BROKERAGE SERVICES, LLC
By: GOLDMAN, SACHS & CO.
By: /s/ GOLDMAN, SACHS & CO.
-----------------------------
GOLDMAN, SACHS & CO.
SIGNATURE PAGE OF UNDERWRITING AGREEMENT
SCHEDULE A
----------
$500,000,000 6 3/4% Notes due June 15, 2006
Principal
Underwriter Amount
----------- -------------
Goldman, Sachs & Co. ..................................$320,000,000
J.P. Morgan Securities Inc. ........................... $40,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated..... $40,000,000
Morgan Stanley & Co. Incorporated...................... $40,000,000
Salomon Smith Barney Inc. ............................. $15,000,000
Banc One Capital Markets, Inc. ........................ $7,500,000
BNY Capital Markets, Inc. ............................. $7,500,000
Dresdner Kleinwort Wasserstein Securities LLC.......... $7,500,000
First Union Securities, Inc. .......................... $7,500,000
Scotia Capital (USA) Inc. ............................. $7,500,000
Wells Fargo Brokerage Services, LLC.................... $7,500,000
-------------
Total...............................$500,000,000
=============
$500,000,000 7 3/8% Notes due June 15, 2011
Principal
Underwriter Amount
----------- -------------
Goldman, Sachs & Co. ..................................$320,000,000
J.P. Morgan Securities Inc. ........................... $40,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated..... $40,000,000
Morgan Stanley & Co. Incorporated...................... $40,000,000
Salomon Smith Barney Inc. ............................. $15,000,000
Banc One Capital Markets, Inc. ........................ $7,500,000
BNY Capital Markets, Inc. ............................. $7,500,000
Dresdner Kleinwort Wasserstein Securities LLC.......... $7,500,000
First Union Securities, Inc. .......................... $7,500,000
Scotia Capital (USA) Inc. ............................. $7,500,000
Wells Fargo Brokerage Services, LLC.................... $7,500,000
-------------
Total...............................$500,000,000
SCHEDULE A
----------
SCHEDULE B
----------
COMPUTER SCIENCES CORPORATION
$500,000,000 6 3/4% Notes due June 15, 2006
1. The initial public offering price of the Five-Year Securities shall
be 99.665% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance.
2. The purchase price to be paid by the Underwriters for the Five-Year
Securities shall be 99.065% of the principal amount thereof.
3. The interest rate on the Five-Year Securities shall be 6 3/4% per
annum.
$500,000,000 7 3/8% Notes due June 15, 2011
1. The initial public offering price of the Ten-Year Securities shall
be 99.262% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance.
2. The purchase price to be paid by the Underwriters for the Ten-Year
Securities shall be 98.612% of the principal amount thereof.
3. The interest rate on the Ten-Year Securities shall be 7 3/8% per
annum.
SCHEDULE B
----------
SCHEDULE C
----------
JURISDICTIONS OF QUALIFICATION OF
DESIGNATED SUBSIDIARIES
(OTHER THAN COMPUTER SCIENCES UK LIMITED)
1. CSC Consulting, Inc. Texas
------------------- Vermont
Alabama Virginia
Arizona Washington
Arkansas Washington, D.C.
California West Virginia
Colorado Wisconsin
Connecticut
Delaware 2. CSC Credit Services, Inc.
Florida
Georgia Florida
Illinois Illinois
Indiana Indiana
Iowa Iowa
Kansas Kansas
Kentucky Kentucky
Louisiana Louisiana
Maine Minnesota
Maryland Missouri
Michigan Nebraska
Minnesota New York
Mississippi North Carolina
Missouri North Dakota
Nebraska Ohio
Nevada Oklahoma
New Hampshire Oregon
New Jersey Pennsylvania
New Mexico South Dakota
New York Virginia
North Carolina Wisconsin
North Dakota
Ohio 3. CSC Healthcare, Inc.
Oklahoma
Oregon Alabama
Pennsylvania Alaska
Rhode Island Arizona
South Carolina Arkansas
South Dakota Colorado
Tennessee Connecticut
Schedule C-1
------------
Delaware 4. Mynd Corporation
Florida
Georgia Alabama
Hawaii Alaska
Idaho Arizona
Illinois Arkansas
Indiana California
Iowa Colorado
Kansas Connecticut
Kentucky Delaware
Louisiana Florida
Maine Georgia
Maryland Hawaii
Massachusetts Idaho
Michigan Illinois
Minnesota Indiana
Mississippi Iowa
Missouri Kansas
Montana Kentucky
Nebraska Louisiana
Nevada Maine
New Hampshire Maryland
New Jersey Massachusetts
New Mexico Michigan
New York Minnesota
North Carolina Mississippi
North Dakota Missouri
Ohio Montana
Oklahoma Nebraska
Ontario, Canada Nevada
Oregon New Hampshire
Pennsylvania New Jersey
Puerto Rico New Mexico
Rhode Island New York
South Carolina North Carolina
South Dakota North Dakota
Tennessee Ohio
Texas Oklahoma
Utah Oregon
Vermont Pennsylvania
Virginia Rhode Island
Washington South Dakota
Washington, D.C. Tennessee
West Virginia Texas
Wisconsin Utah
Wyoming Vermont
Schedule C-2
------------
Virginia
Washington
Washington, D.C.
West Virginia
Wisconsin
Wyoming
Schedule C-3
------------
EXHIBIT A
FORM OF OPINION OF COMPANY'S INSIDE COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)(i)
1. The Company is a Nevada corporation duly qualified as a foreign
corporation to transact business in each of the other 49 states of the United
States and is in good standing in all 50 states.
2. The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization"(except for subsequent issuances or subsequent
repurchases, if any, pursuant to employee benefit or option plans referred to
in the Company's amended Annual Report on Form 10-K for the year ended March
31, 2000 or subsequent repurchases or cancellations, if any, of restricted
stock awards that do not vest upon termination of employment or subsequent
issuances of cash in lieu of fractional shares in connection with the
Company's acquisition of The Continuum Company, Inc.).
3. Each Designated Subsidiary other than Computer Sciences UK Limited
("CSC UK") has been duly organized and is validly existing as a corporation,
in good standing under the laws of the jurisdiction of its incorporation, has
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect (all such jurisdictions are listed on Schedule I
hereto); except as otherwise disclosed in the Prospectus, all of the issued
and outstanding capital stock of each such Designated Subsidiary (other than
CSC UK) has been duly authorized and validly issued, is fully paid and non-
assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of any
Designated Subsidiary (other than CSC UK) was issued in violation of any
preemptive or similar rights arising by operation of law, or under the
charter or by-laws of any Designated Subsidiary (other than CSC UK) or under
an agreement to which the Company or any Designated Subsidiary (other than
CSC UK) is a party.
CSC UK has been duly incorporated under the laws of the jurisdiction of
its incorporation, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus.
Except as otherwise disclosed in the Prospectus, all of the issued and
outstanding shares of CSC UK have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding shares of
CSC UK were issued in violation of any preemptive or similar rights arising
by operation of law, or under its memorandum and articles of association or
under an agreement to which the Company or CSC UK is a party.
4. The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Securities, and the consummation of the
transactions contemplated in the Underwriting Agreement and in the Prospectus
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds"), and compliance by the Company with its
obligations under the Underwriting Agreement, the Indenture and the
Securities, do not and will not, whether with or without the giving of notice
or lapse of time or both, conflict with or constitute a breach of, or default
or repayment event under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to me, to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the applicable
organizational documents, charter or bylaws or, if applicable, the memorandum
and articles of association of any of the subsidiaries of the Company.
5. The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which I express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as
to form in all material respects with the requirements of the Securities Act
or the Securities Exchange Act of 1934, as amended, as applicable, and the
rules and regulations of the Commission thereunder.
6. There are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Prospectus or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by reference
as exhibits thereto, and the descriptions thereof or references thereto are
correct in all material respects.
7. The Company and its subsidiaries possess such Governmental Licenses
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them,
except where the failure to have any such Governmental License would not,
either individually or in the aggregate, have a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply
would not, individually or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
I have participated in conferences with officers and representatives of
the Company, representatives of the independent public accountants for the
Company and the Representatives and their counsel at which the contents of
the Registration Statement and Prospectus and related matters were discussed.
Except as set forth in paragraph 7, I have not undertaken to determine
independently the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus (including, without
limitation, the financial statements, notes thereto, financial statement
schedules, other financial or accounting data included or incorporated by
reference in the Registration Statement or omitted therein or information
derived therefrom, as to which I make no comment), and because of the
limitations inherent in the examination made by me and knowledge available to
me and the nature and extent of my participation in such conferences, except
as set forth in paragraph 7, I am not passing upon and am unable to assume,
explicitly or implicitly, and, except as set forth in paragraph 7, I do not
assume, any responsibility for the accuracy, completeness or fairness of such
statements and I can give no assurance that such examination, knowledge and
participation in such conferences would necessarily reveal matters of
significance with respect to the items discussed in the remainder of this
paragraph. However, based on and subject to the foregoing, nothing has come
to my attention that would lead me to believe that the Registration Statement
(except for financial statements, notes thereto, financial statement
schedules, other financial or accounting data included or incorporated by
reference in the Registration Statement or omitted therefrom or information
derived therefrom, as to which I make no statement), at the time it became
effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (except for
financial statements, notes thereto, financial statement schedules, other
financial or accounting data included or incorporated by reference therein or
omitted therefrom or information derived therefrom, as to which I make no
statement), as of the date of the Prospectus or at the Closing Time,
contained an untrue statement of a material fact or omitted or omits 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 (it
being understood that I make no statement and express no belief with respect
to that part of the Registration Statement that constitutes the Form T-1).
EXHIBIT B
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)(ii)
1. The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the State of Nevada.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a legally valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms.
The Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended.
5. The Securities are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, assuming
that the Securities have been duly authenticated by the Trustee in the manner
described in the authentication order delivered to the Trustee by the Company
on the date hereof upon payment therefor, the Securities have been duly
issued and delivered by the Company and constitute legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms and will be entitled to the benefits of the Indenture.
6. The Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Prospectus.
7. The statements set forth in the Registration Statement under the
heading "Indemnification of Directors and Officers," insofar as such
statements constitute a summary of legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect
to such legal matters, documents or proceedings.
8. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority
or agency, other than under the blue sky laws of the various states and/or
foreign jurisdictions (as to which we render no opinion), is necessary or
required in connection with the due authorization, execution and delivery of
the Underwriting Agreement or the due execution, delivery or performance of
the Indenture by the Company or for the offering, issuance, sale or delivery
of the Securities, except
such authorization, approval, consent, license, order, registration,
qualification or decree as have been obtained under the Securities Act and
the Trust Indenture Act of 1939, as amended.
9. The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Underwriting Agreement and compliance by the
Company with its obligations under the Underwriting Agreement, the Indenture
and the Securities do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with, constitute a breach of or
result in any violation of, the provisions of the charter or by-laws of the
Company, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government instrumentality or
court having jurisdiction over the Company or any of its subsidiaries or any
of its properties, assets or operations.
10. The Company is not an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended.
11. The Registration Statement, including the Rule 430A Information and
the Rule 434 Information, as applicable, and the Prospectus, in each case
including the exhibits attached to the Company's Current Report on Form 8-K
filed with the Commission as of the date hereof, but otherwise excluding the
documents incorporated by reference therein, and each amendment or supplement
to the Registration Statement and Prospectus, in each case including the
exhibits attached to the Company's Current Report on Form 8-K filed with the
Commission as of the date hereof, but otherwise excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements, supporting schedules and other
financial or accounting data included therein or omitted therefrom, and the
Form T-1, as to which we express no opinion) complied as to form in all
material respects with the requirements of the Securities Act and the 1933
Act Regulations.
We have participated in conferences with officers and representatives of
the Company, representatives of the independent public accountants for the
Company and the Representatives and their counsel at which the contents of
the Registration Statement and Prospectus and related matters were discussed.
Except as set forth in paragraph 7, we have not undertaken to determine
independently the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus (including, without
limitation, the financial statements, notes thereto, financial statement
schedules, valuations of contracts or other financial, statistical or
accounting data included or incorporated by reference therein or omitted
therein or information derived therefrom, as to which we make no comment) and
because of the limitations inherent in the examination made by us and
knowledge available to us and the nature and extent of our participation in
such conferences, except as set forth in paragraph 7, we are not passing upon
and are unable to assume, explicitly or implicitly, and, except as set forth
in paragraph 7, we do not assume, any responsibility for the accuracy,
completeness or fairness of such statements and we can give no assurance that
such examination, knowledge and participation in such conferences would
necessarily reveal matters of significance with respect to the items
discussed in the remainder of this paragraph. However, based on and subject
to the foregoing, nothing has come to our attention that would lead us to
believe that the Registration Statement (except for financial statements,
notes thereto, financial statement schedules, other financial, statistical or
accounting data, including, without limitation, valuations of contracts,
included or incorporated by reference in the Registration Statement or
omitted therefrom or information derived therefrom, as to which we make no
statement), at the time it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein, or necessary to make the statements therein not misleading or that
the Prospectus (except for financial statements, notes thereto, financial
statement schedules, other financial, statistical or accounting data,
including, without limitation, valuations of contracts, included or
incorporated by reference therein or omitted therefrom or information derived
therefrom, as to which we make no statement), as of the date of the
Prospectus or at the Closing Time, contained an untrue statement of a
material fact or omitted or omits 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 (it being understood that we make no statement
and express no belief with respect to that part of the Registration Statement
that constitutes the Form T-1).