EXHIBIT 2.7
$200,000,000
URS CORPORATION
12 1/4% Senior Subordinated Notes Due 2009
PLACEMENT AGREEMENT
June 18, 1999
June 18, 1999
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
URS Corporation, a Delaware corporation (the "COMPANY"), proposes to issue
and sell to Morgan Stanley & Co. Incorporated (the "PLACEMENT AGENT")
$200,000,000 principal amount of its 12 1/4% Senior Subordinated Notes due 2009
(the "SECURITIES") to be issued pursuant to the provisions of an Indenture dated
as of June 23, 1999 (the "INDENTURE") among the Company, the subsidiaries of the
Company listed on Schedule I hereto (collectively, the "GUARANTORS"), as
guarantors, and Firstar Bank of Minnesota, N.A., as Trustee (the "TRUSTEE").
The obligations of the Company under the Securities and the Indenture will be
jointly and severally guaranteed on a senior subordinated basis by the
Guarantors pursuant to the terms of the Indenture (the "GUARANTEES").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act and in offshore transactions in reliance
on Regulation S under the Securities Act ("REGULATION S").
The Placement Agent and its direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement, substantially in
the form attached hereto as Exhibit A, dated the date hereof between the
Company, the Guarantors and the Placement Agent (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will prepare
a final offering memorandum (the "FINAL MEMORANDUM" and, with the Preliminary
Memorandum, each a "MEMORANDUM") including or incorporating by reference a
description of the terms of the Securities, the terms of the offering and a
description of the Company. As used herein, the term "Memorandum" shall mean,
as of any date or time referred to in this Agreement, the most recent offering
memorandum (whether the Preliminary Memorandum or the Final Memorandum,
including any amendment or supplement to either such document) and including any
exhibits or schedules thereto and shall include in each case the documents
incorporated by reference therein. The terms "SUPPLEMENT", "AMENDMENT" and
"AMEND" as used herein with respect to a Memorandum shall include all documents
deemed to be incorporated by reference in the Preliminary Memorandum or Final
Memorandum that are filed subsequent to the date of such Memorandum with the
Securities and Exchange Commission (the "COMMISSION") pursuant to the Securities
Exchange Act of 1934, as
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amended (the "EXCHANGE ACT").
The Securities are being issued and sold in connection with the acquisition
(the "ACQUISITION") by the Company of all of the issued and outstanding shares
of the capital stock of Dames & Moore Group, a Delaware corporation ("DAMES &
MOORE"). The Acquisition is being accomplished through a tender offer (the
"TENDER OFFER") by Demeter Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of the Company ("DEMETER"), for up to all of the issued
and outstanding shares of the capital stock of Dames & Moore, followed by a
merger (the "MERGER") of Demeter with and into Dames & Moore, pursuant to an
Agreement and Plan of Merger, dated May 5, 1999, among the Company, Demeter and
Dames & Moore (the "MERGER AGREEMENT"), pursuant to which Dames & Moore will
continue as the surviving corporation. In connection with the Acquisition, on
June 9, 1999, the date of the consummation of the Tender Offer, the Company (i)
issued $100,000,000 of new Series A Preferred Stock and new Series C Preferred
Stock (the "RCBA EQUITY INVESTMENT") to RCBA Strategic Partners, L.P. ("RCBA")
pursuant to a Securities Purchase Agreement, dated May 5, 1999, between RCBA and
the Company (the "RCBA AGREEMENT"), (ii) issued $200,000,000 principal amount of
its Senior Subordinated Increasing Rate Notes due 2009 (the "BRIDGE NOTES") to
the Placement Agent pursuant to a Note Purchase Agreement, dated June 9, 1999,
between the Placement Agent and the Company (the "BRIDGE NOTES PURCHASE
AGREEMENT"), and (iii) entered into a Credit Agreement, dated June 9, 1999,
among the Company, Wells Fargo Bank, National Association, as administrative
agent, and the lenders party thereto (the "CREDIT AGREEMENT"). The Merger
Agreement, the RCBA Agreement, the Bridge Notes Purchase Agreement, the Credit
Agreement, this Agreement, the Indenture, the Registration Rights Agreement, and
all documents contemplated hereunder and thereunder, are collectively referred
to herein as the "TRANSACTION DOCUMENTS".
1. Representations and Warranties. The Company and each of the Guarantors
represents and warrants to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in either Memorandum complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and (ii) the
Preliminary Memorandum does not contain and the Final Memorandum, in the form
used by the Placement Agent to confirm sales and on the Closing Date (as defined
in Section 4), will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in either Memorandum based upon information relating to
the Placement Agent furnished to the Company in writing by the Placement
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Agent expressly for use therein.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Memorandum and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole (a "MATERIAL
ADVERSE EFFECT").
(c) The Guarantors constitute the "Initial Subsidiary Guarantors" as
such term is defined in the Preliminary Memorandum.
(d) Each Guarantor has been duly organized, is validly existing as an
organization in good standing under the laws of the jurisdiction of its
organization, has the power and authority to own its property and to
conduct its business as described in the Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect;
all of the issued shares of capital stock or other equity interests of each
Guarantor have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, other than
(i) as contemplated pursuant to the Credit Agreement, (ii) any director's
qualifying shares, shares owned by professional engineers in connection
with licensing requirements or investments by foreign nationals mandated by
applicable law, or (iii) any outstanding shares of Dames & Moore not owned
by the Company on the date hereof, which shares will be acquired by the
Company upon consummation of the Merger.
(e) This Agreement has been duly authorized, executed and delivered
by the Company and each Guarantor.
(f) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Placement Agent in accordance with the
terms of this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement.
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(g) Each of the Merger Agreement, the RCBA Agreement, the Bridge
Notes Purchase Agreement, the Credit Agreement, the Indenture, and the
Registration Rights Agreement has been duly authorized and, when executed
and delivered by the Company and, if applicable, each Guarantor, will be a
valid and binding agreement of the Company and, if applicable, each
Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and except as rights to
indemnification and contribution may be limited under applicable law.
(h) The execution and delivery by the Company and, if applicable,
each Guarantor of, and the performance by the Company and, if applicable,
each Guarantor of its obligations under the Transaction Documents and, in
the case of the Company, the Securities will not contravene any provision
of applicable law or the certificate of incorporation or by-laws of the
Company or, if applicable, any Guarantor or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company and, if applicable,
each Guarantor of its obligations under the Transaction Documents and, in
the case of the Company, the Securities, other than consents, approvals,
authorizations or orders, which the failure to receive would not have a
Material Adverse Effect, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Securities and by Federal and state securities laws with
respect to the Company's and each Guarantor's obligations under the
Registration Rights Agreement.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Final Memorandum.
(j) There are no legal or governmental proceedings pending or to the
knowledge of the Company threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject, other than proceedings accurately
described in all material respects in each Memorandum and proceedings that
would not have a Material Adverse Effect or a material adverse effect on
the power or ability of the Company and, if applicable, each Guarantor to
perform its obligations under the Transaction Documents or, in the case of
the Company, the Securities, or to consummate the transactions contemplated
by the Final Memorandum.
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(k) Except as disclosed in the Memorandum, the Company and its
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
(l) Except as disclosed in the Memorandum, there are no costs or
liabilities of the Company or its subsidiaries associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(m) Neither the Company nor any Guarantor is, nor after giving effect
to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Memorandum, will be an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(n) Neither the Company, any Guarantor nor any affiliate (as defined
in Rule 501(b) of Regulation D under the Securities Act, an "AFFILIATE") of
the Company or of any Guarantor has directly, or through any agent, (i)
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act) which is or
will be integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities or (ii)
engaged in any form of general solicitation or general advertising in
connection with the offering of the Securities (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(o) None of the Company, its Affiliates or any person acting on its
or their behalf (other than the Placement Agent, as to which no
representation is made) has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the Securities
and the Company and its Affiliates and any person acting on its or their
behalf (other than the Placement Agent, as to which no
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representation is made) have complied and will comply with the offering
restrictions requirement of Regulation S.
(p) It is not necessary in connection with the offer, sale and
delivery of the Securities and the Guarantees to the Placement Agent in the
manner contemplated by this Agreement to register the Securities or the
Guarantees under the Securities Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended.
(q) The Securities and the Guarantees satisfy the requirements set
forth in Rule 144A(d)(3) under the Securities Act.
(r) The Securities and the Guarantees conform in all material respects
to the description thereof contained in the Final Memorandum under the
heading "Description of the Notes".
(s) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of
the Company or any of its subsidiaries will be affected by the Year 2000
Problem (that is, any significant risk that computer hardware or software
applications used by the Company and its subsidiaries will not, in the case
of dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000); as a result of such review, the Company has no
reason to believe, and does not believe, that (A) there are any issues
related to the Company's preparedness to address the Year 2000 Problem that
are of a character required to be described or referred to in the Final
Memorandum which have not been accurately described in the Final Memorandum
and (B) the Year 2000 Problem will have a Material Adverse Effect.
(t) The Company and each of its subsidiaries (i) have all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and have made all declarations and filings with, all federal,
state, local and other governmental, administrative or regulatory
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use their respective properties and
assets and to conduct their respective businesses in the manner described
in the Memorandum, except to the extent that the failure to obtain such
consents, authorizations, approvals, orders, certificates and permits or
make such declarations and filings would not have a Material Adverse
Effect, and (ii) have not received any notice of proceedings relating to
revocation or modification of any such consent, authorization, approval,
order, certificate or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as described in the Memorandum.
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(u) The Company and each of the Guarantors have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them which is material to their respective
businesses, in each case free and clear of all liens, encumbrances and
defects, other than as contemplated pursuant to the Credit Agreement,
except such as (i) are described in the Memorandum, (ii) do not materially
affect the value of such property or (iii) do not interfere with the use
made and proposed to be made of such property by them; and any real
property and buildings held under lease by them are held under valid,
subsisting and enforceable leases with such exceptions as are not material
and do not materially interfere with the use made and proposed to be made
of such property and buildings by them, in each case except as described in
the Memorandum.
(v) No material labor dispute exists with the employees of the Company
or any of its subsidiaries, except as described in or contemplated by the
Memorandum, or, to its knowledge, is imminent; and it is not aware of any
existing, threatened or imminent labor disturbance by the employees of any
of its principal suppliers, manufacturers or contractors that could have a
Material Adverse Effect.
(w) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; since November 1, 1998, neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or applied for;
and neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect, except as described in each
Memorandum.
(x) Except for the presentation of Adjusted EBITDA (as defined in the
Memorandum), the financial statements and pro forma financial information
contained in the Memorandum comply with the requirements of Regulation S-X
of the Commission.
(y) The Tender Offer has been consummated in accordance with the terms
of the Merger Agreement, no term, provision or condition of which has been
amended, supplemented, waived or otherwise modified in any material respect
without the prior written consent of the Placement Agent and the Merger
Agreement is in full force and effect.
(z) The RCBA Equity Investment has been consummated in accordance with
the terms of the RCBA Agreement, no term, provision or condition of which
has been
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amended, supplemented, waived or otherwise modified in any material respect
and the RCBA Agreement is in full force and effect.
(aa) The Bridge Notes Purchase Agreement has been executed by the
parties thereto and is in full force and effect and the Company has issued
the Bridge Notes to the Placement Agent.
(aa) The Credit Agreement has been executed by the parties thereto and
is in full force and effect, all conditions to the initial loans thereunder
have been satisfied or waived and the initial Term Loans and Acquisition
Revolving Loans (each as defined in the Credit Agreement) have been made to
the Company and the proceeds of the loans have been applied by the Company
as contemplated under the Credit Agreement.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the Placement Agent, and the Placement Agent, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Company $200,000,000 principal
amount of the Securities at a purchase price of 97.25% of the principal amount
thereof (the "PURCHASE PRICE") plus accrued interest, if any, to the Closing
Date.
The Company hereby agrees that, without the prior written consent of
the Placement Agent, it will not, during the period beginning on the date hereof
and continuing to and including the Closing Date, offer, sell, contract to sell
or otherwise dispose of any debt of the Company or warrants to purchase debt of
the Company substantially similar to the Securities (other than the sale of the
Securities under this Agreement.)
3. Terms of Offering. You have advised the Company and the
Guarantors that the Placement Agent will make an offering of the Securities
purchased by the Placement Agent hereunder on the terms to be set forth in the
Final Memorandum, as soon as practicable after this Agreement is entered into as
in your judgment is advisable.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the account of the Placement Agent at
10:00 a.m., New York City time, on June 23, 1999, or at such other time on the
same or such other date, not later than June 30, 1999, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to
as the "CLOSING DATE."
Certificates for the Securities shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates
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evidencing the Securities shall be delivered to you on the Closing Date for the
account of the Placement Agent, with any transfer taxes payable in connection
with the transfer of the Securities to the Placement Agent duly paid, against
payment of the Purchase Price therefor plus accrued interest, if any, to the
date of payment and delivery.
5. Conditions to the Placement Agent's Obligations. The obligations
of the Placement Agent to purchase and pay for the Securities on the Closing
Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company
or any of the Company's securities or in the rating outlook for the
Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Final Memorandum (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and in
the manner contemplated in the Final Memorandum.
(b) The Placement Agent shall have received on the Closing Date
certificates from the Company and each Guarantor, dated the Closing Date
and signed by an executive officer of the Company and of each Guarantor, to
the effect set forth in Section 5(a)(i), if applicable, and to the effect
that the representations and warranties of the Company and each Guarantor
contained in this Agreement are true and correct as of the Closing Date and
the Company and each Guarantor has complied in all material respects with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
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(c) The Placement Agent shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for
the Company, dated the Closing Date, to the effect set forth in Exhibit B.
Such opinion shall be rendered to the Placement Agent at the request of the
Company and shall so state therein.
(d) (i) The Placement Agent shall have received on the Closing
Date an opinion of Cooley Godward LLP, special counsel for the Company,
dated the Closing Date, to the effect set forth in Exhibit C. Such opinion
shall be rendered to the Placement Agent at the request of the Company and
shall so state therein.
(ii) The Placement Agent shall have received on the Closing
Date an opinion of Vorys, Sater, Seymour and Pease LLP, special Ohio
counsel for URS Greiner Woodward-Clyde, Inc.- Ohio, dated the Closing
Date, in form and substance satisfactory to you.
(iii) The Placement Agent shall have received on the Closing
Date an opinion of Marshall Hill Cassas & de Lipkau, special Nevada
counsel for each of URS Greiner Woodward-Clyde International-Americas,
Inc., URS Greiner Woodward-Clyde Engineering, Inc. and URS Greiner
Woodward-Clyde, Inc. Pacific, dated the Closing Date, in form and
substance satisfactory to you.
(e) The Placement Agent shall have received on the Closing Date an
opinion of Latham & Watkins, special counsel for Dames & Moore, dated the
Closing Date, to the effect set forth in Exhibit D.
(f) The Placement Agent shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Placement Agent, dated the
Closing Date, in form and substance satisfactory to you.
(g) The Placement Agent shall have received on each of the date
hereof and the Closing Date a letter, dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Placement Agent, from PricewaterhouseCoopers LLC, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements of the Company and certain financial information
contained in or incorporated by reference into the Final Memorandum;
provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
(h) The Placement Agent shall have received on each of the date
hereof and
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the Closing Date a letter, dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to the Placement Agent,
from KPMG Peat Marwick LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
of Dames & Moore and certain financial information contained in or
incorporated by reference into the Final Memorandum; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(i) The Placement Agent shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
(j) On or prior to the Closing Date, the Bridge Notes shall have been
redeemed by the Company.
6. Covenants of the Company and the Guarantors. In further
consideration of the agreements of the Placement Agent contained in this
Agreement, the Company and the Guarantors each covenants with the Placement
Agent as follows:
(a) To furnish to you in New York City, without charge, prior to 5:00
p.m. New York City time on the business day next succeeding the date of
this Agreement (or such other date as you and we may mutually agree) and
during the period mentioned in Section 6(c), as many copies of the Final
Memorandum and any supplements and amendments thereto as you may reasonably
request.
(b) Before amending or supplementing either Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use any
such proposed amendment or supplement to which you reasonably object;
provided, however, that your consent to such amendment or supplement may
not be unreasonably withheld or delayed.
(c) If, during such period after the date hereof and prior to the
date on which all of the Securities shall have been sold by the Placement
Agent, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Final Memorandum in order to make the
statements therein, in the light of the circumstances when the Final
Memorandum is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Placement Agent, it is necessary to amend or
supplement the Final Memorandum to comply with applicable law, forthwith to
prepare and furnish, at its own expense, to the Placement Agent, either
amendments or supplements to the Final Memorandum so that the statements in
the Final Memorandum as so amended or supplemented will not, in the light
of the
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circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Final Memorandum, as amended or supplemented,
will comply with applicable law.
(d) To endeavor to qualify the Securities and the Guarantees for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request; provided, however, that the Company shall
not be required in connection therewith to register or qualify as a foreign
corporation where it is not now so qualified.
(e) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of its obligations under this
Agreement, including:
(i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the issuance
and sale of the Securities and all other fees or expenses in
connection with the preparation of each Memorandum and all amendments
and supplements thereto, including all printing costs associated
therewith, and the delivering of copies thereof to the Placement
Agent, in the quantities herein above specified,
(ii) all costs and expenses related to the transfer and
delivery of the Securities to the Placement Agent, including any
transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal
investment memorandum in connection with the offer and sale of the
Securities under state securities laws and all expenses in connection
with the qualification of the Securities for offer and sale under
state securities laws as provided in Section 6(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Placement Agent in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum,
(iv) any fees charged by rating agencies for the rating of the
Securities,
(v) the fees and expenses, if any, incurred in connection with
the admission of the Securities for trading in PORTAL or any
appropriate market system,
(vi) the costs and charges of the Trustee and any transfer
agent, registrar or depositary,
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(vii) the cost of the preparation, issuance and delivery of the
Securities and the Guarantees,
(viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection
with the marketing of the offering of the Securities, including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and
(ix) all other costs and expenses incident to the performance
of the obligations of the Company and the Guarantors hereunder for
which provision is not otherwise made in this Section.
It is understood, however, that except as provided in this Section,
Section 8, and the last paragraph of Section 10, the Placement Agent will
pay all of its costs and expenses, including fees and disbursements of its
counsel, transfer taxes payable on resale of any of the Securities by it
and any advertising expenses connected with any offers it may make.
(f) Neither the Company, any Guarantor nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in the Securities Act) which could be
integrated with the sale of the Securities in a manner which would require
the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities
by means of any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(h) While any of the Securities remain "restricted securities" within
the meaning of the Securities Act, to make available, upon request, to any
seller of the Securities the information specified in Rule 144A(d)(4) under
the Securities Act, unless the Company is then subject to Section 13 or
15(d) of the Exchange Act.
(i) If requested by you, to use its best efforts to permit the
Securities to be
14
designated PORTAL securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. relating to
trading in the PORTAL Market.
(j) None of the Company, its Affiliates or any person acting on its
or their behalf (other than the Placement Agent) will engage in any
directed selling efforts (as that term is defined in Regulation S) with
respect to the Securities, and the Company and its Affiliates and each
person acting on its or their behalf (other than the Placement Agent) will
comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired
by any of them.
(l) The Company will apply the Purchase Price as set forth in the
Final Memorandum under the caption "The Dames & Moore Acquisition, The
Financing Plan and Use of Proceeds".
(m) The Company will use its best efforts to consummate the Merger, in
accordance with the Merger Agreement, as soon as practicable following the
date hereof.
7. Offering of Securities; Restrictions on Transfer. (a) The
Placement Agent represents and warrants that it is a qualified institutional
buyer as defined in Rule 144A under the Securities Act (a "QIB"). The Placement
Agent agrees with the Company and the Guarantors that (i) it will not solicit
offers for, or offer or sell, such Securities by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act and (ii) it will solicit
offers for such Securities only from, and will offer such Securities only to,
persons that it reasonably believes to be (A) in the case of offers inside the
United States, QIBs and (B) in the case of offers outside the United States, to
persons other than U.S. persons ("FOREIGN PURCHASERS," which term shall include
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)) in reliance upon Regulation S under the Securities Act that, in each
case, in purchasing such Securities are deemed to have represented and agreed as
provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) The Placement Agent represents, warrants, and agrees with respect to
offers and sales outside the United States that:
(i) it understands that no action has been or will be taken in any
jurisdiction
15
by the Company or the Guarantors that would permit a public offering of the
Securities, or possession or distribution of either Memorandum or any other
offering or publicity material relating to the Securities, in any country
or jurisdiction where action for that purpose is required;
(ii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or
has in its possession or distributes either Memorandum or any such other
material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities
Act and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with Rule 144A
or Regulation S under the Securities Act or pursuant to another exemption
from the registration requirements of the Securities Act;
(iv) it has offered the Securities and will offer and sell the
Securities (A) as part of its distribution at any time and (B) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 of Regulation S or as
otherwise permitted in Section 7(a); accordingly, neither the Placement
Agent, its Affiliates nor any persons acting on its or their behalf have
engaged or will engage in any directed selling efforts (within the meaning
of Regulation S) with respect to the Securities, and the Placement Agent,
its Affiliates and any such persons have complied and will comply with the
offering restrictions requirement of Regulation S;
(v) it has (A) not offered or sold and, prior to the date six
months after the Closing Date, will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their businesses or otherwise
in circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (B) complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom, and (C) only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on;
16
(vi) it understands that the Securities have not been and will not
be registered under the Securities and Exchange Law of Japan, and
represents that it has not offered or sold, and agrees not to offer or
sell, directly or indirectly, any Securities in Japan or for the account of
any resident thereof except pursuant to any exemption from the registration
requirements of the Securities and Exchange Law of Japan and otherwise in
compliance with applicable provisions of Japanese law; and
(vii) it agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have
the meaning given to them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by
Regulation S.
8. Indemnity and Contribution. (a) The Company and each Guarantor
agrees to indemnify and hold harmless the Placement Agent and each person, if
any, who controls the Placement Agent within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in either Memorandum (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Placement Agent furnished to the Company in writing
by the Placement Agent expressly for use therein; provided, however, that the
foregoing indemnity with respect to any Preliminary Memorandum shall not inure
to the benefit of the Placement Agent from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities, or any person
controlling the Placement Agent, if a copy of the Final Memorandum (as then
amended or supplemented if the Company shall have furnished any
17
amendments or supplements thereto) was not sent or given by or on behalf of the
Placement agent to such person at or prior to the written confirmation of the
sale of the Securities to such person, and if the Final Memorandum (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability.
(b) The Placement Agent agrees to indemnify and hold harmless the Company,
the Guarantors, their directors, their officers and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to the Placement Agent, but only with reference to
information relating to the Placement Agent furnished to the Company in writing
by the Placement Agent expressly for use in either Memorandum or any amendments
or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel and the
indemnifying party has agreed to pay the fees and expenses of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred upon written request and presentation of invoices. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by
18
the second and third sentences of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party for such fees
and expenses of counsel in accordance with such request prior to the date of
such settlement. Notwithstanding the immediately preceding sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by this Section 8(c) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent that it in good faith considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Placement Agent on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company and the Guarantors on the one hand
and of the Placement Agent on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantors on the one hand and the Placement
Agent on the other hand in connection with the offering of the Securities shall
be deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total discounts and commissions received by the Placement Agent in
respect thereof, as set forth in the Final Memorandum, bear to the aggregate
offering price of the Securities, as set forth in the Final Memorandum. The
relative fault of the Company and the Guarantors on the one hand and of the
Placement Agent on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates
19
to information supplied by the Company, the Guarantors or by the Placement Agent
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Placement Agent agree that it
would not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 8(d) shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, the Placement Agent shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities resold by
it in the initial placement of such Securities were offered to investors exceeds
the amount of any damages that the Placement Agent has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company and the
Guarantors contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Placement Agent or any person
controlling the Placement Agent or by or on behalf of the Company and the
Guarantors, their officers or directors or any person controlling the Company or
the Guarantors and (iii) acceptance of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company and the Guarantors, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company or the Guarantors shall have been suspended on
any exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 9(a)(i) through 9(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment,
20
impracticable to market the Securities on the terms and in the manner
contemplated in the Final Memorandum.
10. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Placement Agent, because
of any failure or refusal on the part of the Company or any Guarantor to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company or any Guarantor shall be unable to perform its
obligations under this Agreement, the Company and the Guarantors will reimburse
the Placement Agent for all out-of-pocket expenses (including the fees and
disbursements of its counsel) reasonably incurred by the Placement Agent in
connection with this Agreement or the offering contemplated hereunder.
11. Notices. All notices and other communications under this
Agreement shall be in writing and mailed, delivered or sent by facsimile
transmission to: if sent to the Placement Agent, Morgan Stanley & Co.
Incorporated, 1585 Broadway, New York, New York 10036, attention: High Yield New
Issues Group, facsimile number (212) 761-0587 and if sent to the Company or the
Guarantors, to URS Corporation, 100 California Street, Suite 500, San Francisco,
CA, attention: General Counsel, facsimile number (415) 834-1506.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
URS CORPORATION
By /s/ Kent P. Ainsworth
----------------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President, Chief
Financial Officer and Secretary
GUARANTORS: DAMES & MOORE GROUP
By /s/ Kent P. Ainsworth
----------------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President and Secretary
DEMETER ACQUISITION CORPORATION
URS CONSULTANTS, INC. -- FLORIDA
URS GREINER WOODWARD-CLYDE CONSULTANTS, INC.
URS GREINER WOODWARD-CLYDE CONSULTANTS, INC. --
COLORADO
URS GREINER WOODWARD-CLYDE ENGINEERING, INC.
URS GREINER WOODWARD-CLYDE GROUP CONSULTANTS, INC.
URS GREINER WOODWARD-CLYDE, INC. -- CALIFORNIA
URS GREINER WOODWARD-CLYDE, INC. -- OHIO
URS GREINER WOODWARD-CLYDE, INC. -- WASHINGTON
URS GREINER WOODWARD-CLYDE, INC. (COLORADO)
URS GREINER WOODWARD-CLYDE, INC. (CONNECTICUT)
URS GREINER WOODWARD-CLYDE, INC. GREAT LAKES
URS GREINER WOODWARD-CLYDE, INC. (MARYLAND)
URS GREINER WOODWARD-CLYDE, INC. PACIFIC
URS GREINER WOODWARD-CLYDE, INC. SOUTHERN
URS GREINER WOODWARD-CLYDE, INC. SOUTHWEST
URS GREINER WOODWARD-CLYDE INTERNATIONAL --
AMERICAS, INC.
URS GREINER WOODWARD-CLYDE
INTERNATIONAL HOLDINGS, INC.
By /s/ Kent P. Ainsworth
----------------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President, Chief
Financial Officer and Secretary
WVP CORPORATION
By /s/ Kent P. Ainsworth
----------------------------------------
Name: Kent P. Ainsworth
Title: Vice President, Chief Financial Officer
and Secretary
URS GREINER WOODWARD-CLYDE
GROUP, INC.
By /s/ Kent P. Ainsworth
----------------------------------------
Name: Kent P. Ainsworth
Title: Chief Financial Officer and Secretary
GCH ACQUISITION CORP.
By /s/ Jean-Yves Perez
----------------------------------------
Name: Jean-Yves Perez
Title: President
GEO-CON, INC.
By /s/ Jean-Yves Perez
----------------------------------------
Name: Jean-Yves Perez
Title: Vice President
URS GREINER WOODWARD-CLYDE FEDERAL SERVICES, INC.
By /s/ Gary V. Jandegian
----------------------------------------
Name: Gary V. Jandegian
Title: President
URS GREINER WOODWARD-CLYDE LICENSING CORP.
By /s/ Cynthia L. Jorgensen
----------------------------------------
Name: Cynthia L. Jorgensen
Title: President and Treasurer
URS GREINER WOODWARD-CLYDE OPERATING
SERVICES, INC.
By /s/ Cynthia L. Jorgensen
----------------------------------------
Name: Cynthia L. Jorgensen
Title: Vice President and Treasurer
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Brian Andrzejewski
--------------------------------------
Name: Bryan Andrzejewski
Title: Vice-President
SCHEDULE I
GUARANTORS
Demeter Acquisition Corporation
URS Consultants, Inc. -- Florida
URS Greiner Woodward-Clyde Consultants, Inc.
URS Greiner Woodward-Clyde Consultants, Inc. -- Colorado
URS Greiner Woodward-Clyde Engineering, Inc.
URS Greiner Woodward-Clyde Group Consultants, Inc.
URS Greiner Woodward-Clyde, Inc. -- California
URS Greiner Woodward-Clyde, Inc. -- Ohio
URS Greiner Woodward-Clyde, Inc. -- Washington
URS Greiner Woodward-Clyde, Inc. (Colorado)
URS Greiner Woodward-Clyde, Inc. (Connecticut)
URS Greiner Woodward-Clyde, Inc. Great Lakes
URS Greiner Woodward-Clyde, Inc. (Maryland)
URS Greiner Woodward-Clyde, Inc. Pacific
URS Greiner Woodward-Clyde, Inc. Southern
URS Greiner Woodward-Clyde, Inc. Southwest
URS Greiner Woodward-Clyde International -- Americas, Inc.
URS Greiner Woodward-Clyde International Holdings, Inc.
WVP Corporation
URS Greiner Woodward-Clyde Group, Inc.
GCH Acquisition Corp.
Geo-con, Inc.
URS Greiner Woodward-Clyde Federal Services, Inc.
URS Greiner Woodward-Clyde Licensing Corp.
URS Greiner Woodward-Clyde Operating Services, Inc.
Dames & Moore Group