Exhibit 1.1
BDM INTERNATIONAL, INC.
Common Stock
(par value $.01 per share)
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Underwriting Agreement
(U.S. Version)
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March __, 1996
Goldman, Sachs & Co.
Lehman Brothers Inc.
Oppenheimer & Co., Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
BDM International, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 360,000 shares of Common Stock, par value $.01 per share
("Stock") of the Company and the stockholders of the Company named in
Schedule II hereto (the "Selling Stockholders") propose, subject to the
terms and conditions stated herein, to sell to the Underwriters an
aggregate of 1,880,000 shares and The Carlyle Partners Leveraged Capital
Fund I, L.P. ("The Carlyle Fund") proposes to sell, at the election of the
Underwriters, up to 336,000 additional shares of Stock. The aggregate
of 2,240,000 shares to be sold by the Company and the Selling Stockholders
are herein called the "Firm Shares" and the aggregate of 336,000 additional
shares to be sold by The Carlyle Fund are herein called the "Optional
Shares". The Firm Shares and the Optional Shares that the Underwriters
elect to purchase pursuant to Section 2 hereof are herein collectively
called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the
Company and the Selling Stockholders of up to a total of 644,000 shares of
Stock (the "International Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters outside the
United States (the "International Underwriters"), for whom Goldman Sachs
International, Lehman Brothers International (Europe) and Oppenheimer
International, Ltd. are acting as lead managers. Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Underwriting Agreement are hereby expressly
made conditional on one another. The Underwriters hereunder and the
International Underwriters are simultaneously entering into an Agreement
between U.S. and International Underwriting
Syndicates (the "Agreement between Syndicates") which provides, among other
things, for the transfer of shares of Stock between the two syndicates.
Two forms of prospectus are to be used in connection with the offering and
sale of shares of Stock contemplated by the foregoing, one relating to the
Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for
certain substitute pages as included in the registration statement and
amendments thereto as mentioned below. Except as used in Sections 2, 3, 4,
9 and 11 herein, and except as the context may otherwise require,
references hereinafter to the Shares shall include all the shares of Stock
which may be sold pursuant to either this Agreement or the International
Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall
include both the U.S. and the international versions thereof.
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-
01513) (the "Initial Registration Statement") in respect of the
Shares has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus
contained therein, to you for each of the other Underwriters,
have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon filing, no other
document with respect to Initial Registration Statement or
document incorporated by reference therein has heretofore been
filed with the Commission; and no stop order suspending the
effectiveness of Initial Registration Statement, any post-
effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act and the
International version thereof, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including
(i) the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective or such part of
the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective and (ii) the documents incorporated
by reference in the prospectus contained in the registration
statement at the time such part of the registration statement
became effective, each as amended at the time such part of the
registration statement became effective, are hereinafter
collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule
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424(b) under the Act and the International version thereof, is
hereinafter called the "Prospectus"); and any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act (as the
information included in such incorporated by reference documents
may have been amended or modified in the Registration Statement
or Prospectus), as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement;
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, and
did 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, in the light of the circumstances
under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, complied as
to form in all material respects with the requirements of
Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents 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; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder 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; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing
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to the Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus 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;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co. expressly
for use therein or by a Selling Stockholder expressly for use in
the preparation of the answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its consolidated
subsidiaries (the "Subsidiaries") has sustained since the date of
the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or increase in long-term debt of the
Company or any of its Subsidiaries or any material adverse change
to the Company and its Subsidiaries, taken as a whole, or any
development which the Company has reasonable cause to believe
will involve a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and
its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(vi) The Company and its Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not
materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of
such property by the Company and its Subsidiaries; and any real
property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its Subsidiaries;
(vii) The Company has been duly incorporated and is
validly existing
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as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any
such jurisdiction; and each subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation;
(viii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description of the Stock contained in the
Prospectus; and all of the issued shares of capital stock of each
Subsidiary of the Company described in the Prospectus as being
owned directly or indirectly by the Company have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(ix) The unissued Shares to be issued and sold by the
Company to the Underwriters hereunder and under the International
Underwriting Agreement have been duly and validly authorized and,
when issued and delivered against payment therefor as provided
herein and in the International Underwriting Agreement, will be
duly and validly issued and fully paid and non-assessable and
will conform to the description of the Stock contained in the
Prospectus;
(x) The issue and sale of the Shares to be sold by the
Company hereunder and under the International Underwriting
Agreement and the compliance by the Company with all of the
provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and
therein contemplated will not result in a material breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by
this Agreement and the International Underwriting Agreement,
except the registration under the Act of
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the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the
International Underwriters and under the rules of the National
Association of Securities Dealers, Inc. with respect to the
underwriting arrangements reflected in the Agreement and the
International Underwriting Agreement;
(xi) Neither the Company nor any of its Subsidiaries is (A)
in violation of its Certificate of Incorporation or By-laws or
(B) in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other material agreement or instrument to which it is a party or
by which it or any of its properties may be bound, except, with
respect to clause (B), for such defaults which are disclosed in
the Registration Statement and the Prospectus;
(xii) The statements set forth in the Prospectus under
the captions "Description of Capital Stock" and "Underwriting",
insofar as such statements constitute a summary of documents or
matters of law referred to therein, are fair summaries of the
material provisions thereof and accurately present the
information required with respect to such documents and matters;
(xiii) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its Subsidiaries is a party or of which any
property of the Company or any of its Subsidiaries is the subject
which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and
its Subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened by governmental authorities or
threatened by others;
(xiv) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment
company" required to be registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(xv) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person located
in Cuba within the meaning of Section 517.075, Florida Statutes;
(xvi) Coopers & Lybrand, L.L.P., who have certified
certain financial statements of the Company and its Subsidiaries,
are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder; and
(xvii) The Company and its Subsidiaries possess all
trademarks, trade names, service marks, copyrights, patents,
licenses or other intellectual
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property, or rights in any thereof, necessary for the conduct,
without any known conflict with the rights or claimed rights of
others, of its business as now conducted and presently proposed
to be conducted.
(b) Each of the Selling Stockholders severally represents and
warrants (as to itself or himself only) to, and agrees with, each of
the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling
Stockholder of this Agreement, the International
Underwriting Agreement, the Power of Attorney (the "Power of
Attorney") and the Custody Agreement (the "Custody
Agreement") hereinafter referred to, and for the sale and
delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling
Stockholder has full right, power and authority to enter
into this Agreement, the International Underwriting
Agreement, the Power of Attorney and the Custody Agreement
and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and under the International
Underwriting Agreement and the compliance by such Selling
Stockholder with all of the provisions of this Agreement,
the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any statute, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, nor will such
action result in any violation of the provisions of the
Certificate of Incorporation or By-Laws of such Selling
Stockholder if such Selling Stockholder is a corporation, or
the Articles of Partnership of such Selling Stockholder if
such Selling Stockholder is a partnership, or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling stockholder;
(iii) Such Selling Stockholder has, and immediately
prior to the First Time of Delivery (as defined in Section 4
hereof) such Selling Stockholder will have, good and valid
title to the Shares to be sold at such Time of Delivery by
such Selling Stockholder hereunder and under the terms of
the International Underwriting Agreement (and in the case of
the Equitable Deal Flow Fund, L.P. and Equitable Capital
Private Income and Equity Partnership II, L.P., each Selling
Stockholder has, and immediately prior to the First Time of
Delivery each Selling Stockholder will have, good and valid
title to the shares of
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Class B Common Stock, par value $.01 per share of the Company
(the "Class B Shares"), which Class B Shares will be converted
into the Shares to be sold at such Time of Delivery by such
Selling Stockholder hereunder), free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such
Shares and payment therefor pursuant hereto and pursuant to the
International Underwriting Agreement, good and valid title to
such Shares, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters or International
Underwriters, as the case may be;
(iv) Such Selling Stockholder will not, without the
prior written consent of Goldman, Sachs & Co., offer, sell,
contract to sell or otherwise dispose of any shares of Stock
of the Company or securities of the Company that are
substantially similar to the Stock of the Company,
including, but not limited to, any securities convertible
into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities
during the period beginning on the date of this Agreement
and continuing to and including the date 90 days after the
date of the Prospectus (other than Shares offered hereby or
pursuant to the International Underwriting Agreement);
(v) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate
the sale or resale of the Shares; and
(vi) To the extent that any statements or omissions made
in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto are
made in reliance upon and in conformity with written
information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus will, when they
become effective or are filed with the Commission, as the
case may be, conform in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and not contain any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading.
(vii) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax
Equity and Fiscal Responsibility Act of 1982 with respect to
the transactions herein contemplated, each of the Selling
Stockholders agrees to deliver to you prior to or at the
First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(viii) Each of the Selling Stockholders represents and
warrants that
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certificates in negotiable form representing all of the Shares to
be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement have been placed in custody
under a Custody Agreement, in the form heretofore furnished to
you, duly executed and delivered by such Selling Stockholder to
BDM International, Inc., as custodian (the "Custodian"), and that
such Selling Stockholder has duly executed and delivered a Power
of Attorney, in the form heretofore furnished to you, appointing
the persons indicated in Schedule II hereto, and each of them, as
such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-
Fact") with authority to execute and deliver this Agreement and
the International Underwriting Agreement on behalf of such
Selling Stockholder, to determine the purchase price to be paid
by the Underwriters and the International Underwriters to the
Selling Stockholders as provided in Section 2 hereof, to
authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions
contemplated by this Agreement, the International Underwriting
Agreement and the Custody Agreement.
(ix) Each of the Selling Stockholders specifically
agrees that the Shares represented by the certificates held
in custody for such Selling Stockholder under the Custody
Agreement are subject to the interests of the Underwriters
hereunder and the International Underwriters under the
International Underwriting Agreement, and that the
arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of
the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable. Each of the Selling Stockholders
specifically agrees that the obligations of the Selling
Stockholders hereunder shall not be terminated by operation
of law, whether by the death or incapacity of any individual
Selling Stockholder, or, in the case of an estate or trust,
by the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any
other event. If any Selling Stockholder or any such
executor or trustee should die or become incapacitated, or
if any such estate or trust should be terminated, or if any
such partnership or corporation should be dissolved, or if
any other such event should occur, before the delivery of
the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of such Selling
Stockholder in accordance with the terms and conditions of
this Agreement, of the International Underwriting Agreement
and of the Custody Agreements, and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall
be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorneys-in-Fact, or any
of them, shall have received notice of such death,
incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each
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of the Selling Stockholders agree, severally and not jointly, to sell to
each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company and each of the Selling
Stockholders, at a purchase price per share of $________, the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares as provided below, The
Carlyle Fund agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from The
Carlyle Fund, at the purchase price per share set forth in clause (a) of
this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of
the Underwriters are entitled to purchase hereunder.
The Carlyle Fund, as and to the extent indicated in Schedule II
hereto, hereby grants to the Underwriters the right to purchase at their
election up to 336,000 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised by written notice from you to the
Attorneys-in-Fact, given within a period of 30 calendar days after the date
of this Agreement and setting forth the aggregate number of Optional Shares
to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the First Time
of Delivery (as defined in Section 4 hereof) or, unless you, and The
Carlyle Fund otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered
in such names as Goldman, Sachs & Co. may request upon at least forty-
eight hours' prior notice to the Company and the Selling Stockholders,
shall be delivered by or on behalf of the Company and the Selling
Stockholders to Goldman, Sachs & Co., for the account of such
Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer to the account of the
Company and each of the Selling Stockholders, as their interests may
appear in Federal (same-day) funds. The Company will cause the
certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) with respect thereto at the office of Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004 (the
"Designated Office"). The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on ________, 1996 or such other time and date as Goldman, Sachs
& Co., the Company and the Selling may agree upon in writing, and,
with respect to the Optional Shares, 9:30 a.m., New York time, on the
date specified by Goldman, Sachs & Co. in the written notice given by
Goldman, Sachs & Co. of the Underwriters' election to purchase such
Optional Shares, or such other time and date as Goldman, Sachs & Co.,
and The Carlyle Fund may agree upon in writing. Such time and date
for
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delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a
"Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 7(k)
hereof, will be delivered at the offices of Sullivan & Cromwell, 125
Broad Street, New York, New York 10004 (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at such
Time of Delivery. A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of
this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated
by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be reasonably
disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you copies thereof; to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering
or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such
- 11 -
jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m. New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to
notify you and upon your request to file such document and prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder and under the International
Underwriting Agreement, any shares of Stock or securities of the
Company which are substantially similar to the Shares, including but
not limited to any securities which are convertible into or
exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than pursuant to employee
stock option plans, employee stock purchase plans or 401(k) plans or
any other employee plans of similar nature, including, without
limitation, any such plans for the benefit of directors or officers of
the Company, which are described in the Prospectus or in an
acquisition in which the person or persons receiving the Stock or
substantially similar securities
- 12 -
agree in writing to be bound by this clause), without the prior
written consent of Goldman, Sachs & Co.;
(f) To furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a consolidated
balance sheet and consolidated statements of income, stockholders'
equity and cash flows of the Company and its Subsidiaries certified by
independent public accountants) and, as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of
the Company and its Subsidiaries for such quarter in reasonable
detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders
generally, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
publicly available information concerning the business and financial
condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its Subsidiaries are
consolidated in reports furnished to its stockholders generally or to
the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement and the International Underwriting
Agreement in the manner specified in the Prospectus under the caption
"Use of Proceeds"; and
(i) To use its best efforts to qualify for quotation the Shares
to be sold by the Company on the National Association of Securities
Dealers Automated Quotations National Market System ("Nasdaq").
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants and of
Willkie Farr & Gallagher in their capacity as counsel to the Selling
Stockholders in connection with the registration of the Shares under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement,
the International Underwriting Agreement, the Agreement between Syndicates,
the Selling Agreement, the Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Shares; (iii) all
expenses in connection with the qualification of the Shares for offering
and sale under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Underwriters (up to
$20,000 in the aggregate including fees and disbursements of counsel for
the Underwriters under (v) below) in connection with such qualification and
in connection with the Blue Sky survey; (iv) all fees and expenses in
connection with listing the Shares on the Nasdaq; (v) the filing fees
incident to, and the fees
- 13 -
and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost of
preparing stock certificates; (vii) the cost and charges of any transfer
agent or registrar; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; provided, further that the
Company will pay or cause to be paid all costs and expenses incident to the
performance of the Selling Stockholders' obligations hereunder which are
not otherwise specifically provided for in this Section, including all
expenses and taxes incident to the sale and delivery of the Shares to be
sold by the Selling Stockholders to the Underwriters hereunder. In
connection with the preceding sentence, Goldman, Sachs & Co. agrees to pay
New York State stock transfer tax, and the Company agrees to reimburse
Goldman, Sachs & Co. for associated carrying costs if such tax payment is
not rebated on the day of payment and for any portion of such tax payment
not rebated. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares
to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and
other statements of the Company and of the Selling Stockholders herein are,
at and as of such Time of Delivery, true and correct, the condition that
the Company and the Selling Stockholders shall have performed all of its
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to you such opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, with respect to the incorporation of the Company, the
validity of the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Willkie Farr & Gallagher, counsel for the Company, shall
have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(b) hereto), dated such Time of Delivery, in
form reasonably satisfactory to you, to the effect that under the
federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware:
(i) The Company has been duly incorporated and is validly
existing
- 14 -
as a corporation in good standing under the laws of the State of
Delaware, with corporate power to own its properties and conduct
its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the Shares being delivered at
such Time of Delivery) have been duly and validly authorized and
issued and are fully paid and nonassessable; and the Shares
conform to the description of the Stock contained in the
Prospectus;
(iii) BDM Federal, Inc. has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; and all of the issued
shares of capital stock of BDM Federal, Inc. have been duly and
validly authorized and issued, are fully paid and non-assessable,
and are owned directly by the Company, free and clear of any
perfected security interest;
(iv) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its U.S. Subsidiaries is a party or of which any property of the
Company or any of its U.S. Subsidiaries is the subject which, if
determined adversely to the Company or any of its Subsidiaries,
would individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its
Subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened by governmental authorities or by
others;
(v) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by
the Company;
(vi) The issue and sale of the Shares being delivered at
such Time of Delivery by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument
known to such counsel to which the Company or any of its U.S.
Subsidiaries is a party or by which the Company or any of its
U.S. Subsidiaries is bound or to which any of the property or
assets of the Company or any of its U.S. Subsidiaries is subject,
nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation known to such counsel of
any federal or state court or governmental agency or body having
jurisdiction over the Company or any of its U.S. Subsidiaries or
any of their properties;
(vii) No consent, approval, authorization, order,
registration or
- 15 -
qualification of or with any such federal or state court or
governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except the registration under the Act of the Shares,
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters and the International Underwriters and
under the rules of the National Association of Securities
Dealers, Inc. with respect to the underwriting arrangements
reflected in the Agreement and the International Underwriting
Agreement;
(viii) To the best knowledge of such counsel, neither the
Company nor any of its U.S. Subsidiaries is (A) in violation of
its Certificate of Incorporation or By-laws or (B) in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound, except, with respect to clause (B), for
such defaults which are disclosed in the Registration Statement
and the Prospectus;
(ix) The statements set forth in the Prospectus under the
captions "Description of Capital Stock", and "Underwriting",
insofar as such statements constitute a summary of documents or
matters of law referred to therein, are fair summaries of the
material provisions thereof and accurately present the
information required with respect to such documents and matters;
(x) The Company is not and, after giving effect to the
transactions contemplated by this Agreement and the Prospectus,
will not be required to be registered under the Investment
Company Act;
(xi) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which
such counsel need 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
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and they have no reason
to believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the
case of a registration statement which became effective under the
Act, 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, in the case of other
documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading; and
- 16 -
(xii) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial information
contained therein or omitted therefrom, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; in addition, such counsel shall state
that they have participated in conferences with representatives
of the Company, representatives of the certified independent
public accountants of the Company, and representatives of the
Underwriters and their counsel, at which conferences the contents
of the Registration Statement, the Prospectus, each amendment
thereof and supplement thereto and related matters were
discussed, and, although such counsel has not independently
checked or verified and is not passing upon nor assuming
responsibility for the factual accuracy, completeness or fairness
of the statements contained in the Registration Statement, the
Prospectus, any amendment thereof or supplement thereto (except
as specified in paragraph (ix) above), based on the foregoing, no
facts have come to such counsel's attention to cause them to
believe (A) that either the Registration Statement or any
amendment thereto (other than the financial statements and
related schedules and other financial information contained
therein or omitted therefrom, as to which such counsel need
express no opinion) at the time the Registration Statement or
amendment 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 (B) that the Prospectus, as amended and
supplemented (other than the financial statements and related
schedules and other financial information contained therein or
omitted therefrom, as to which such counsel need express no
opinion), as of its date and at such Time of Delivery, and the
Registration Statement, at such Time of Delivery, contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described
in the Registration Statement or the Prospectus which are not
filed or described as required;
(d) John F. McCabe, General Counsel for the Company, shall have
furnished to you his written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated such Time of Delivery, in form
reasonably satisfactory to you, to the effect that under the General
Corporation Law of the State of Delaware:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material
liability or disability by reason of failure to be so qualified
in any such jurisdiction (such counsel being entitled to rely in
respect of the opinion in this clause upon
- 17 -
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(ii) To the best of such counsel's knowledge, the Company
has not received written notice of any claim of infringement or
violation of or conflict with rights or claims of others with
respect to any trademarks, trade names, service marks, copyrights
or other related proprietary rights owned, licensed or used by
the Company, which could, individually or in the aggregate,
result in a material adverse effect on the business, results of
operations or financial condition of the Company;
(iii) Each U.S. Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such U.S.
Subsidiary described in the Prospectus as being owned directly or
indirectly by the Company have been duly and validly authorized
and issued, are fully paid and non-assessable, and (except for
directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of any perfected security interest;
and
(e) Willkie Farr & Gallagher, as counsel for each of the Selling
Stockholders, or other counsel (which may be "in-house" counsel to
such Selling Stockholder) reasonably satisfactory to you, shall have
furnished to you their written opinions with respect to each of the
Selling Stockholders, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have been
duly executed and delivered by such Selling Stockholder and
constitute valid and binding agreements of such Selling
Stockholder in accordance with their terms, subject as to
enforcement to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar
laws affecting creditors' rights generally and (ii) general
principles of equity (whether considered in a proceeding at law
or in equity);
(ii) This Agreement and the International Underwriting
Agreement has been duly executed and delivered by or on behalf of
such Selling Stockholder; and the sale of the Shares to be sold
by such Selling Stockholder hereunder and thereunder and the
compliance by such Selling Stockholder with all of the provisions
of this Agreement and the International Underwriting Agreement,
the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
terms or provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which
such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of
such Selling Stockholder is subject, or
- 18 -
the Certificate of Incorporation or By-Laws of such Selling
Stockholder if such Selling Stockholder is a corporation, or the
Articles of Partnership of such Selling Stockholder if such
Selling Stockholder is a partnership, or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over such Selling Stockholder
or the property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement
and the International Underwriting Agreement in connection with
the Shares to be sold by such Selling Stockholder hereunder or
thereunder, except such as have been obtained under the Act and
such as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of such Shares
by the Underwriters or the International Underwriters; and
(iv) Upon due delivery and payment for the Shares to be
sold by such Selling Stockholder at the first Time of Delivery as
provided for in this Agreement and the International Underwriting
Agreement, the Underwriters or International Underwriters, as the
case may be, will have good and valid title to the Shares so
transferred, free and clear of all liens, encumbrances, equities
or claims (assuming that the Underwriters or International
Underwriters, as the case may be, purchased such Shares in good
faith and without notice of any such lien, encumbrance, equity or
claim or any other adverse claim within the meaning of the
Uniform Commercial Code).
In rendering such opinions, such counsel may (i) state that such
opinions are limited to matters governed by (a) U.S. federal law, (b)
New York, Pennsylvania or Texas law (depending on the jurisdiction
applicable of the Selling Stockholder represented by such counsel) and
(c) the Delaware Revised Uniform Limited Partnership Act or the
General Corporation Law of the State of Delaware, if applicable, and
(ii) in rendering the opinion in paragraph (iv), such counsel may rely
upon a certificate of such Selling Stockholder in respect of matters
of fact as to ownership of, and liens, encumbrances, equities, or
claims on, the Shares sold by such Selling Stockholder, provided that
such counsel shall state that they believe that both you and they are
justified in relying upon such certificate;
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, and at 9:30 a.m., New York City time, on
the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Coopers & Lybrand shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto);
- 19 -
(g) (i) Neither the Company nor any of its Subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since
the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock
or long-term debt of the Company or any of its Subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or on
the Nasdaq; (ii) a suspension or material limitation in trading in the
Company's securities on the Nasdaq; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Time of Delivery on
the terms and in the manner contemplated in the Prospectus;
(i) The Shares to be sold by the Company and the Selling
Stockholders at such Time of Delivery shall have been duly listed,
subject to notice of issuance, for quotation on the Nasdaq; and
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the stockholders listed
in Schedule II hereto substantially to the effect set forth in
Subsection 1(b)(iv) hereof in form and substance satisfactory to you;
(k) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(l) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company satisfactory to you as to the
accuracy of the representations and warranties of the Company herein
at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (g) of this Section
- 20 -
and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein.
(b) Each of the Selling Stockholders (other than the Permanent
University Fund of the State of Texas and the Board of Regents of The
University of Texas System) will severally indemnify and hold harmless
each Underwriter, limited to an amount equal to the proceeds received
by such Selling Stockholder from the sales of the Shares pursuant to
this Agreement (before deducting underwriting discounts and
commissions) against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that such Selling Stockholder shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs &
Co. expressly for use therein.
- 21 -
(c) The Permanent University Fund of the State of Texas and the
Board of Regents of The University of Texas System (together, "The
University of Texas") will [jointly and] severally indemnify and hold
harmless each Underwriter, limited to an amount equal to the proceeds
received by The University of Texas from the sales of the Shares
pursuant to this Agreement (before deducting underwriting discounts
and commissions) against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by The
University of Texas expressly for use therein; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that The University of Texas shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs &
Co. expressly for use therein.
(d) Each Underwriter will indemnify and hold harmless the
Company and each Selling Stockholder (including The University of
Texas) against any losses, claims, damages or liabilities to which the
Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through Goldman, Sachs & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(e) Promptly after receipt by an indemnified party under
subsection (a), (b),
- 22 -
(c) or (d) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise
than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of
such action 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.
(f) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b), (c) or (d) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the
Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(e) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Stockholders on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to
the Shares purchased under
- 23 -
this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company
and the Selling Stockholders and each of the Selling Stockholders on
the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Selling Stockholders and each of the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (f) 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
subsection (f). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (f) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (f), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares 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 such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (f) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(g) The obligations of the Company and the Selling Stockholders
under this Section 8 shall be in addition to any liability which the
Company and the respective Selling Stockholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if
any, who controls the Company or any Selling Stockholder within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a
Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms
contained herein. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholders and each of the Selling
Stockholders shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to
you to purchase such Shares on such terms. In the event that, within
the respective prescribed periods, you notify the Company and the
Selling Stockholders that you have so arranged for the purchase of
such Shares, or the Company and the Selling Stockholders notifies you
that it has so arranged for the
- 24 -
purchase of such Shares, you or the Company and the Selling
Stockholders and shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments
to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Stockholders as provided in subsection (a)
above, the aggregate number of such Shares which remains unpurchased
does not exceed one-eleventh of the aggregate number of all the Shares
to be purchased at such Time of Delivery, then the Company and the
Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and,
in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Stockholders as provided in subsection (a)
above, the aggregate number of such Shares which remains unpurchased
exceeds one-eleventh of the aggregate number of all the Shares to be
purchased at such Time of Delivery, or if the Company and the Selling
Stockholders shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters, then this Agreement (or, with
respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of The Carlyle Fund to sell the Optional
Shares) shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company or the Selling
Stockholders, except for the expenses to be borne by the Company and
the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any of the Selling
Stockholders, or any officer or director or controlling person of the
Company, or any controlling person of any Selling Stockholder, and shall
survive delivery of and payment for the Shares.
- 25 -
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholders shall then be
under any liability to any Underwriter except as provided in Sections 6 and
8 hereof; but, if for any other reason, any Shares are not delivered by or
on behalf of the Company and the Selling Stockholders as provided herein,
the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Stockholders shall then be under
no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Goldman, Sachs & Co. on behalf of you as
the representatives; and in all dealings with any Selling Stockholder
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for such
Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives in care of
Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
Attention: Registration Department; if to any Selling Stockholder shall be
delivered or sent by mail, telex or facsimile transmission to counsel for
such Selling Stockholder at its address set forth in Schedule II hereto;
and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company or the
Selling Stockholders by you upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and,
to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Selling Stockholder or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be
an original, but all such
- 26 -
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us six (6) counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and each of the Selling Stockholders. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement
among Underwriters (U.S. Version), the form of which shall be submitted to
the Company and the Selling Stockholders for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Any person executing and delivering this Agreement as
Attorney-in-Fact for a Selling Stockholder represents by so doing that he
has been duly appointed as Attorney-in-Fact by such Selling Stockholder
pursuant to a validly existing and binding Power of Attorney which
authorizes such Attorney-in-Fact to take such action.
Very truly yours,
BDM INTERNATIONAL, INC.
By: _________________________
Name:
Title:
The Carlyle Partners Leveraged Capital
Fund I, L.P.
BDM Acquisition Partners I, L.P.
BDM Acquisition Partners II, L.P.
Equitable Deal Flow Fund, L.P.
Equitable Capital Private Income and
Equity Partnership II, L.P.
Richard King Mellon Foundation
Dr. William E. Sweeney, Jr.
Permanent University Fund of the State of Texas
Board of Regents of The University of Texas System
By: __________________________
Name:
Title:
As Attorney-in-Fact acting on
behalf of each of the Selling
Stockholders named in Schedule II
to this Agreement.
- 27 -
Accepted as of the date hereof New York, New York:
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
OPPENHEIMER & CO., INC.
By: Goldman, Sachs & Co.
______________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
- 28 -
SCHEDULE I
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER PURCHASED IF
OF FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ----------------
Goldman, Sachs & Co. . . . .
Lehman Brothers Inc. . . . .
Oppenheimer & Co., Inc. . . .
Total . . . . . . . . . 2,240,000 360,000
================== ================
- 29 -
SCHEDULE II
Number of
Optional
Total Shares to be
Number of Sold if
Firm Maximum
Shares to be Option
Sold Exercised
------------ -------------
The Company . . . . . . . . . . . . . 360,000 N/A
The Selling Stockholders (a):
The Carlyle Fund 976,000 336,000
BDM Acquisition Partners I, L.P. 24,000 N/A
BDM Acquisition Partners II, L.P. 200,000 N/A
Equitable Deal Flow Fund, L.P. (b) 80,000 N/A
Equitable Capital Private Income 240,000 N/A
and Equity
Partnership II, L.P. (b)
Richard King Mellon Foundation 120,000 N/A
Dr. William E. Sweeney, Jr. 40,000 N/A
Permanent University Fund of the 175,000 N/A
State of Texas
Board of Regents of The University 25,000 N/A
of Texas System
Total . . . . . . . . . . . . . . . 2,240,000 336,000
============= ============
_______________
(a) Each of the Selling Stockholders is represented by Willkie Farr &
Gallagher, One Citicorp Center, 153 East 53rd Street, New York, New York
10022 and has appointed John F. McCabe and Leslie L. Armitage, and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(b) The number of shares indicated above consists of the same number
of shares of Class B Common Stock, which is convertible on a one-to-one
basis into Common Stock. Immediately prior to the offerings, Equitable
Deal Flow Fund, L.P. and Equitable Capital Private Income and Equity
Partnership II, L.P. will convert such shares of Class B Common Stock into
the shares of Common Stock to be sold by them in the offerings.
- 30 -
Locked-Up Stockholders
----------------------
Philip A. Odeen
William E. Conway, Jr.
Frank C. Carlucci
Roy V. Woodle
Earle C. Williams
- 31 -
ANNEX I
FORM OF COMFORT LETTER
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its Subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representatives of
the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as indicated in their reports thereon
copies of which are attached hereto and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years which were included or incorporated by
reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
1
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its Subsidiaries,
inspection of the minute books of the Company and its Subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
Subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
2
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its Subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except
in each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its Subsidiaries, which appear in the Prospectus,
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its Subsidiaries and have found
them to be in agreement.
3