AFFILIATED COMPUTER SERVICES, INC.
4% CONVERTIBLE SUBORDINATED NOTES
DUE MARCH 15, 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of March 17, 1998
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
Prudential Securities Incorporated
c/o Goldman, Sachs & Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Affiliated Computer Services, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Purchasers (as defined herein)
upon the terms set forth in a Purchase Agreement (as defined herein) its 4%
Convertible Subordinated Notes due March 15, 2005 (the "Securities"). As an
inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder, the
Company agrees with the Purchasers, for the benefit of the Holders (as defined
herein) from time to time of the Registrable Securities (as defined herein), as
follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
2
"Class A Common Stock" means the Company's Class A Common Stock, par
value $0.01 per share.
"Commission" means the United States Securities and Exchange Commission.
"DTC" means The Depository Trust Company.
"Effective Failure" has the meaning assigned thereto in Section 7 hereof.
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Effectiveness Period" has the meaning set forth in Section 2(b)(i)
hereof.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(3)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
"Expedited Filing" has the meaning assigned thereto in Section 3(a)
hereof.
"Expedited Filing Questionnaire Deadline" has the meaning assigned
thereto in Section 3(a)(3) hereof.
"Holder" means, when used with respect to any Security, the Holder (as
defined in the Indenture) and, with respect to any shares of Class A Common
Stock, the record holder thereof.
"Indenture" means the Indenture dated as of March 23, 1998 between the
Company and U.S. Trust Company of Texas, N.A., as Trustee, as amended and
supplemented from time to time.
"Liquidated Damages" has the meaning assigned thereto in Section 7
hereof.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
as set forth in Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
3
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, any preliminary prospectus, any final
prospectus and any prospectus that discloses information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A under the Act), included in the Shelf Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Shelf Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
"Purchase Agreement" means the purchase agreement dated March 17, 1998
between the Company and the Purchasers.
"Purchasers" means you, as the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the Class A
Common Stock issuable upon conversion or repurchase of such Securities;
PROVIDED, HOWEVER, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
"Registration Default" has the meaning assigned thereto in Section 7
hereof.
"Restricted Security" means any Security or share of Class A Common Stock
issuable upon conversion or repurchase thereof except any such Security or such
share of Class A Common Stock which (i) has been effectively registered under
the Securities Act and sold in a manner contemplated by the Shelf Registration
Statement, (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or is transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision thereto), or (iii)
has otherwise been transferred and a new Security or share of Class A Common
Stock not subject to transfer restrictions under the Securities Act has been
delivered by or on behalf of the Company in accordance with Section 3.5 of the
Indenture.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
4
2. SHELF REGISTRATION. (a) The Company shall, within 90 calendar
days following the First Time of Delivery (as defined in the Purchase
Agreement), file with the Commission a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities by the Holders and, thereafter,
shall use all reasonable efforts to cause such Shelf Registration Statement to
be declared effective under the Securities Act within 180 calendar days after
the First Time of Delivery (as defined in the Purchase Agreement); PROVIDED,
HOWEVER, that no Holder shall be entitled to have the Registrable Securities
held by it covered by such Shelf Registration unless such Holder is an Electing
Holder.
(b) The Company shall use all reasonable efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by Electing Holders for a period of two years from the last Time
of Delivery (as defined in the Purchase Agreement) or such shorter period
that will terminate when there are no Registrable Securities outstanding
(in either case, such period being referred to herein as the
"Effectiveness Period");
(ii) After the Effective Time of the Shelf Registration
Statement, promptly upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such Holder to use the Prospectus forming
a part thereof for offers and resales of Registrable Securities,
including, without limitation, any action reasonably necessary to
identify such Holder as a selling securityholder in the Shelf
Registration Statement; PROVIDED, HOWEVER, that nothing in this
subparagraph shall relieve such Holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(2) hereof; and
(iii) If at any time, the Securities, pursuant to Article XII of
the Indenture, are convertible into securities other than shares of Class
A Common Stock, the Company shall, or shall cause any successor under the
Indenture to, cause such securities to be included in the Shelf
Registration Statement no later than the date on which the Securities may
then be convertible into such securities.
The Company shall be deemed not to have used all reasonable efforts to keep the
Shelf Registration Statement effective during the Effectiveness Period if the
Company voluntarily takes any action that would result in Electing Holders not
being able to offer and sell any of their Registrable Securities during such
period, unless (i) such action is required by applicable law or regulation,
(ii) the Company determines based on the advice of counsel that it is advisable
to disclose in the Shelf Registration Statement a financing, acquisition or
other corporate transaction or other material event or circumstance affecting
the Company or its securities, and the Board of Directors of the Company (or an
executive officer of the Company duly authorized for such purpose) shall have
determined in good faith that such disclosure at such time is not in the best
interests of the Company and its stockholders, and, in the case of clause (i)
above, the Company thereafter promptly complies with the requirements of
paragraph 3(h) below.
5
3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a)(1) If the Company expects to file and obtain the effectiveness
of a Shelf Registration Statement within 30 days of the date hereof (an
"Expedited Filing"), it shall (x) mail, as promptly as reasonably
practicable after the date hereof to the Holders of Registrable
Securities, a Notice and Questionnaire with a response deadline of 30
days from the date of such Notice (the "Expedited Filing Questionnaire
Deadline"), and (y) as promptly as reasonably practicable after the
response deadline but in any event no later than 10 days thereafter,
prepare a Prospectus supplement (and if required file an amendment or a
supplement to the Shelf Registration Statement) or take such other
measures, if any, as are necessary to include in the Shelf Registration
Statement the Registrable Securities of Electing Holders. If the Company
does not intend to make an Expedited Filing, it shall mail the Notice and
Questionnaire to the Holders of Registrable Securities not less than 30
calendar days prior to the Effective Time of the Shelf Registration
Statement. No Holder of Registrable Securities shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement as
of the Effective Time (or in the first Prospectus supplement filed
thereafter in the case of an Expedited Filing), and no Holder of
Registrable Securities shall be entitled to use the Prospectus forming a
part thereof for offers and resales of Registrable Securities at any
time, unless such Holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; PROVIDED, HOWEVER, that Holders of Registrable Securities shall
have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a completed and
signed Notice and Questionnaire to the Company.
(2) After the Effective Time of the Shelf Registration Statement
(or the Expedited Filing Questionnaire Deadline in the case of an
Expedited Filing), the Company shall, upon the request of any Holder of
Registrable Securities that is not then an Electing Holder, as promptly
as reasonably practicable, send a Notice and Questionnaire to such
Holder. The Company shall not be required to take any action to name
such Holder as a selling securityholder in the Shelf Registration
Statement until such Holder has returned a completed and signed Notice
and Questionnaire to the Company. Following its receipt of such Notice
and Questionnaire, the Company will reasonably promptly include the
Registrable Securities covered thereby in the Shelf Registration
Statement (if not previously included).
(3) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(1) or
3(a)(2) hereof.
(b) The Company shall, as promptly as reasonably practicable,
take such action as may be necessary so that (i) each of the Shelf
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto (and each
report or other document incorporated therein by reference in each case)
complies in all material respects with the Securities Act and the
6
Exchange Act and the respective rules and regulations thereunder, (ii)
each of the Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, 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 and (iii) each of
the Prospectus forming part of the Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c)(i) The Company shall, as promptly as reasonably practicable,
advise each Electing Holder and shall confirm such advice in writing if
so requested by any such Electing Holder:
(1) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(2) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(3) of the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose; and
(4) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included in the Shelf Registration Statement for sale
in any jurisdiction or the initiation of any proceeding for such
purpose.
(ii) The Company shall, as promptly as reasonably practicable,
advise DTC and the trustee under the Indenture of the happening of any
event or the existence of any state of facts that requires the making of
any changes in the Shelf Registration Statement or the Prospectus
included therein so that, as of such date, the Shelf Registration
Statement and the Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an instruction
to suspend the use of the Prospectus until the requisite changes have
been made).
(d) The Company shall use its reasonable best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of any Shelf Registration Statement at
the earliest possible time.
7
(e) The Company shall furnish to each Electing Holder, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Electing Holder so requests in writing, all
reports, other documents and exhibits that are filed with or incorporated
by reference in the Shelf Registration Statement. The Company shall use
all reasonable efforts to take into account and, if appropriate, reflect
in an amendment to the Shelf Registration Statement such comments on the
Shelf Registration Statement as initially filed as the Electing Holders
and their counsel may reasonably propose.
(f) The Company shall, during the Effectiveness Period, deliver
to each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
Electing Holder may reasonably request; and the Company consents (except
during the continuance of any event described in Section 3(c)(ii)) to the
use of the Prospectus or any amendment or supplement thereto by each of
the Electing Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto during the Effectiveness Period. The Company shall
use all reasonable efforts to take into account and, if appropriate,
reflect in a Prospectus supplement or amendment such comments as the
Electing Holders and their counsel may reasonably propose.
(g) Prior to any offering of Registrable Securities pursuant to
the Shelf Registration Statement, the Company shall (i) register or
qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Electing Holders reasonably
request, (ii) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers and sales
in such jurisdictions for so long as may be necessary to enable any
Electing Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement and
(iii) take any and all other actions necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities;
PROVIDED, HOWEVER, that in no event shall the Company be obligated to (a)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but
for this Section 3(g) or (b) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof then so
subject.
(h) Upon the occurrence of any event contemplated by paragraph
3(c)(ii) above, the Company shall as promptly as reasonably practicable
prepare a post-effective amendment or supplement to the Shelf
Registration Statement or the Prospectus, or any document incorporated
therein be reference, or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, if the Company determines
based upon the advice of counsel that it is advisable to disclose in the
Shelf
8
Registration Statement a financing, acquisition or other corporate
transaction or other material event affecting the Company or its
securities, and the Board of Directors of the Company (or an executive
officer of the Company duly authorized for such purpose) shall have
determined in good faith that such disclosure would not be in the best
interests of the Company and its stockholders, the Company shall not be
required to prepare and file such amendment, supplement or document for
such period as the Board of Directors of the Company shall have
determined in good faith is in the best interests of the Company and its
stockholders. If the Electing Holders are notified of the occurrence of
any event contemplated by paragraph 3(c)(ii) above, the Electing Holders
shall suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made.
(i) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(j) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable, but
in any event not later than eighteen months after (i) the effective date
(as defined in Rule 158(c) under the Securities Act of the Shelf
Registration Statement and (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement and (iii) the date of each
filing by the Company with the Commission of an Annual Report on Form
10-K that is incorporated by reference in the Shelf Registration
Statement, an earnings statement of the Company and its subsidiaries
satisfying the provisions of Section 11(a) of the Securities Act.
(k) The Company shall cause the Indenture and the Securities to
be qualified under the Trust Indenture Act in a timely manner; and in
connection with such qualification, the Company shall cooperate with the
Trustee under the Indenture and the Holders (as defined in the Indenture)
to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute and use all reasonable
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner.
(l) In the event of an underwritten offering conducted pursuant
to Section 6 hereof, the Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to the
Shelf Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and to which the
Company does not reasonably object and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
reasonably practicable after it is notified of the matters to be included
or incorporated in such Prospectus supplement or post-effective
amendment.
9
(m) The Company shall enter into such customary agreements
(including underwriting agreements in customary form) and take all other
appropriate actions in order to expedite or facilitate the registration
and disposition of the Registrable Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same
to contain indemnification and contribution provisions and procedures
substantially identical to those set forth in Section 5 (or such other
provisions and procedures acceptable to the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section 5
hereof.
(n) The Company shall:
(i) make reasonably available for inspection by one
representative of the Electing Holders designated in writing by
the Holders of a majority of the Registrable Securities to be
registered thereunder, any underwriter participating in any
underwritten offering pursuant to Section 6 hereof, and any
attorney, accountant or other agent retained by such
representative or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries;
(ii) cause the Company's officers, directors and
employees to make reasonably available for inspection all relevant
information reasonably requested by such representative or any
such underwriter, attorney, accountant or agent in connection with
any such Shelf Registration Statement, in each case, as is
customary for similar due diligence examinations; PROVIDED,
HOWEVER, that any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by such
representative, any Holders or any such underwriter, attorney,
accountant or agent, unless (x) such disclosure is made in
connection with a court proceeding or required by law, or (y) such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
and PROVIDED, FURTHER, that as promptly as reasonably practicable
before disclosure is made pursuant to clause (x) above, the
Company is given prior written notice.
(iii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, make such representations
and warranties to the Electing Holders and the underwriters, if
any, in form, substance and scope as are customarily made by the
Company to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in
the Purchase Agreement;
(iv) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain opinions of counsel
to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each Electing Holder
and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such Electing Holders and underwriters (it being agreed
10
that the matters to be covered by such opinion or written
statement by such counsel delivered in connection with such
opinions shall include in customary form, without limitation,
as of the date of the opinion and as of the effective date of
the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from such
Shelf Registration Statement and the Prospectus included
therein, as then amended or supplemented, including the
documents incorporated by reference therein, of an untrue
statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading);
(v) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain "cold comfort"
letters and updates thereof from the independent public
accountants of the Company (and, if necessary, any other
independent public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included
in the Shelf Registration Statement), addressed to each Electing
Holder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings;
(vi) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, deliver such documents and
certificates as may be reasonably requested by any such Electing
Holders and the Managing Underwriters, if any, including those to
evidence compliance with Section 3(h) hereof and with any
customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
(o) The Company will use its reasonable best efforts to cause
the shares of Class A Common Stock issuable upon conversion of the
Securities to be listed on the New York Stock Exchange or other stock
exchange or trading system on which the Class A Common Stock primarily
trades on or prior to the Effective Time of any Shelf Registration
Statement hereunder.
(p) In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of
the NASD Rules (or any successor provision thereto)) of the Company or
has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD
Rules (or any successor provision thereto)) and such broker-dealer shall
underwrite, participate as a member of an underwriting syndicate or
selling group or assist in the distribution of any Registrable Securities
covered by the Shelf Registration Statement, whether as a Holder of such
Registrable Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, assist such
broker or dealer in respect thereof, or otherwise, the Company shall
assist such broker-dealer in complying with the requirements of the NASD
Rules, including, without limitation, by (A) engaging a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the NASD
Rules (or any successor provision thereto)) to participate in the
preparation of the Shelf Registration Statement relating to such
11
Registrable Securities, to exercise usual standards of due diligence in
respect thereto and to recommend the public offering price of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 5 hereof and (C) providing such information to such broker-
dealer as may be required in order for such broker-dealer to comply with
the requirements of the NASD Rules.
(q) The Company shall use all reasonable efforts to take all
other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 6 hereof and shall bear or reimburse the Electing Holders for
the reasonable fees and disbursements of one firm of counsel designated by the
Company and reasonably acceptable to the Holders of a majority of the
Registrable Securities covered by the Shelf Registration Statement to act as
counsel therefor in connection therewith; PROVIDED, HOWEVER, that any
underwriting discounts and commissions in connection with an underwritten
offering pursuant to Section 6 hereof shall be paid by the Electing Holders
participating therein.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In connection with any Shelf
Registration Statement, the Company shall indemnify and hold harmless each
Electing Holder and each underwriter, selling agent or other securities
professional, if any, who facilitates the disposition of Registrable Securities,
and each of their respective officers and directors and each person, if any, who
controls such Electing Holder, underwriter, selling agent or other securities
professional within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (each such person being sometimes referred to herein as
an "Indemnified Person") against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based on any
untrue statement or alleged untrue statement of a material fact contained in any
Shelf Registration Statement (or any amendment thereto) under which such
Registrable Securities are registered under the Securities Act, or any
Prospectus contained therein or furnished by the Company to any Indemnified
Person, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading (in
the case of the Prospectus, in light of the circumstances under which they were
made), and the Company hereby agrees to reimburse such Indemnified Person for
any legal or other expenses reasonably incurred by them 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 to any such
Indemnified Person 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 such Shelf
Registration Statement or Prospectus, or any amendment
12
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such Indemnified Person expressly for
use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS.
Each Electing Holder agrees, as a consequence of the inclusion of any such
holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, who
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign any Shelf Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities 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 such Shelf Registration Statement or Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon an 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 the case of the
Prospectus, in light of the circumstances under which they were made), 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 reliance
upon and in conformity with written information furnished to the Company by such
Electing Holder, underwriter, selling agent or other securities professional
expressly for use therein and (ii) reimburse the Company 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.
(c) NOTICES AND CLAIMS. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission to
so notify the indemnifying party shall not relieve it from any liability which
it may have to the indemnified party otherwise than under this Section 5. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such 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
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party under this Section 5 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 party to such action or claim) unless such settlement, compromise or
judgment (i) includes an
13
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.
(d) CONTRIBUTION. If the indemnification provided for in this Section
5 is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) of this Section 5 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 fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
and liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party 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 such indemnifying party or by such indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 5(d)
were determined by pro rata allocation (even if the Electing Holders or any
underwriters, selling agents or other securities professionals or all of them
were treated as one entity for such purpose) or by any other method of
allocation that does not take into account the equitable considerations referred
to in this Section 5(d). 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 shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Electing
Holders and any underwriters, selling agents or other securities professionals
in this Section 5(d) to contribute shall be several in proportion to the
percentage of principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
shall any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds received by such Electing Holder from the sale of such Electing
Holder's Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) pursuant to any Shelf Registration Statement
under which such Registrable Securities are registered under the Securities Act
and (ii) underwriter, selling agent or other securities professional be required
to undertake liability to any person under this Section 5 for any amounts in
excess of the discount, commission or other compensation payable to such
underwriter, selling agent or other securities professional with respect to the
Registrable Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations
14
of any Electing Holder, underwriter, selling agent or other securities
professional under this Section 5 shall be in addition to any liability which
any such Electing Holder, underwriter, selling agent or other securities
professional shall otherwise have to the Company. The remedies provided in
this Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to an indemnified party at law or in equity.
6. UNDERWRITTEN OFFERING. Any Electing Holder who desires to do so
may sell Registrable Securities (in whole or in part) in an underwritten
offering, PROVIDED that (i) the Electing Holders of at least 25% in aggregate
principal amount of the Registrable Securities then covered by the Shelf
Registration Statement shall request such an offering and (ii) at least such
aggregate principal amount of such Registrable Securities shall be included in
such offering, and PROVIDED FURTHER that the Company shall not be obligated to
cooperate with more than one underwritten offering. Upon receipt of such a
request, the Company shall provide all Holders of Registrable Securities written
notice of the request, which notice shall inform such Holders that they have the
opportunity to participate in the offering. In any such underwritten offering,
the investment banker or bankers and manager or managers that will administer
the offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by the Holders of a majority of the Registrable
Securities to be included in such offering; PROVIDED, HOWEVER, that such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Company. No Holder may participate in any underwritten
offering contemplated hereby unless (a) such Holder agrees to sell such Holder's
Registrable Securities to be included in the underwritten offering in accordance
with any approved underwriting arrangements, (b) such Holder completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such approved underwriting arrangements and (c) if such Holder is not
then an Electing Holder, such Holder returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(2) hereof within a
reasonable amount of time before such underwritten offering. The Holders
participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions and fees and expenses of their own
counsel. The Company shall pay all expenses customarily borne by issuers in an
underwritten offering, including but not limited to filing fees, the fees and
disbursements of its counsel and accountants and any printing expenses incurred
in connection with such underwritten offering. Notwithstanding the foregoing or
the provisions of Sections 3(l) and 3(m) hereof, upon receipt of a request from
the Managing Underwriter or a representative of Holders of a majority of the
Registrable Securities to be included in an underwritten offering to prepare and
file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company may delay
the filing of any such amendment or supplement for up to 90 days if the Board of
Directors of the Company (or an executive officer of the Company duly authorized
for such purpose) shall have determined in good faith that the Company has a
valid business reason for such delay.
7. LIQUIDATED DAMAGES. If (i) on or prior to the 90th day following
the date of the First Time of Delivery (as defined in the Purchase Agreement), a
Shelf Registration Statement has not been filed with the Commission or (ii) on
or prior to the 180th day following the date of the First Time of Delivery (as
defined in the Purchase Agreement), such Shelf Registration
15
Statement is not declared effective by the Commission (each, a "Registration
Default"), the Company shall be required to pay liquidated damages
("Liquidated Damages"), from and including the day following such
Registration Default until such Shelf Registration Statement is either so
filed or so filed and subsequently declared effective, as applicable. Such
Liquidated Damages shall be paid semi-annually in arrears, with the first
semi-annual payment due on the first Interest Payment Date (as defined in the
Indenture) following the date of such Registration Default, and will accrue
at a rate per annum equal to one-quarter of one percent (0.25%) of the
principal amount thereof, to and including the 90th day following such
Registration Default and one-half of one percent (0.5%) thereof from and
after the 91st day following such Registration Default. In the event that
the Shelf Registration Statement ceases to be effective (or the Holders of
Registrable Securities are otherwise prevented or restricted by the Company
from effecting sales pursuant thereto) for more than 60 days, whether or not
consecutive, during any twelve-month period (an "Effective Failure"), then
the Company shall pay Liquidated Damages in the amount of one-half of one
percent (0.5%) per annum from the 61st day of the applicable twelve-month
period such Shelf Registration Statement ceases to be effective (or the
Holders of Registrable Securities are otherwise prevented or restricted by
the Company from effecting sales pursuant thereto) until such time as the
Effective Failure is cured. For the purpose of determining an Effective
Failure, days on which the Company has been obligated to pay Liquidated
Damages in accordance with the foregoing in respect of a prior Effective
Failure within the applicable twelve-month period shall not be included. The
Liquidated Damages as set forth in this Section 7 shall be the exclusive
monetary remedy available to the Holders of Registrable Securities for such
Registration Default or Effective Failure.
8. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. The Company may grant registration
rights that would permit any Person that is a third party the right to
piggy-back on any Shelf Registration Statement, PROVIDED that if the Managing
Underwriter, if any, of any underwritten offering conducted pursuant to Section
6 hereof notifies the Company and the Electing Holders that the total amount of
securities which the Electing Holders and the holders of such piggy-back rights
intend to include in any Shelf Registration Statement is so large as to
materially threaten the success of such offering (including the price at which
such securities can be sold), then the amount, number or kind of securities to
be offered for the account of holders of such piggy-back rights will be reduced
to the extent necessary to reduce the total amount of securities to be included
in such offering to the amount, number or kind recommended by the Managing
Underwriter prior to any reduction in the amount of Registrable Securities to be
included in such Shelf Registration Statement.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this Section 8(b), may be amended, and waivers or
consents to departures from the provisions hereof may be given, only by a
written instrument duly executed by the Company and the Holders of a majority in
aggregate principal amount of Registrable Securities then outstanding. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
waiver or consent or thereafter shall be bound by any amendment, waiver or
consent effected pursuant to this Section 8(b), whether or not any notice,
writing or marking
16
indicating such amendment, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 8(c);
(2) if to the Purchasers, initially at the address set forth in
the Purchase Agreement; and
(3) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when
received.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Registrable Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Registrable Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) COUNTERPARTS. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
any provisions relating to conflicts of laws.
(h) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
17
(i) SURVIVAL. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto 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 Electing Holder, any director, officer or partner of such Electing
Holder, any agent or underwriter, any director, officer or partner of such agent
or underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Registrable Securities of such
Holder.
18
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Affiliated Computer Services, Inc.
By:
--------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
Prudential Securities Incorporated
By:
-----------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Purchasers
Exhibit A
AFFILIATED COMPUTER SERVICES, INC.
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT -- IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: (DATE)
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in Affiliated Computer
Services, Inc. (the "Company") 4% Convertible Subordinated Notes due March
15, 2005 (the "Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933, as amended, for resale by the beneficial owners
thereof. In order to have their Securities included in the registration
statement, beneficial owners, INCLUDING BENEFICIAL OWNERS RESIDENT OUTSIDE
THE UNITED STATES, must complete and return the enclosed Notice of
Registration Statement and Selling Securityholder Questionnaire.
IT IS IMPORTANT THE BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY
OF THE ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed materials to each beneficial owner that holds interests in
the Securities through you. If you require more copies of the enclosed
materials or have any questions regarding this matter, please contact
[Name, address and telephone number of contact at the Company].
AFFILIATED COMPUTER SERVICES, INC.
NOTICE OF REGISTRATION STATEMENT AND
SELLING SECURITYHOLDER QUESTIONNAIRE
(DATE)
Affiliated Computer Services, Inc. (the "Company") has filed or
intends shortly to file with the United States Securities and Exchange
Commission (the "Commission") a registration statement on form S-3 (the
"Shelf Registration Statement") for the registration and resale under the
United States Securities Act of 1933, as amended (the "Securities Act"), of
the Company's 4% Convertible Subordinated Notes due March 15, 2005 (CUSIP
No.▇▇▇▇▇▇▇▇▇) (the "Notes"), and Class A Common Stock, par value $0.01 per
share, of the Company issuable upon conversion or repurchase thereof, in
accordance with the terms of the Registration Rights Agreement dated March
13, 1998 (the "Registration Rights Agreement") between the Company and the
purchasers named therein (the "Purchasers"). A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration
Rights Agreement.
In order to have Registrable Securities included in the Shelf
Registration Statement (or a supplement or amendment thereto), this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company at
the address set forth herein for receipt ON OR BEFORE [insert date that is 30
days from the Notice Date] (the "Questionnaire Deadline"). Unless the Company
otherwise consents, beneficial owners of Registrable Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i)
will not be named as selling securityholders in the Shelf Registration
Statement (or a supplement or amendment thereto) and related Prospectus and
(ii) may not sell their Registrable Securities pursuant thereto. Beneficial
owners of Registrable Securities not having returned a Notice and
Questionnaire by the Questionnaire Deadline may, however, receive another
Notice and Questionnaire from the Company upon request. Following its
receipt of a completed Notice and Questionnaire in return, the Company will
reasonably promptly include the Registrable Securities covered thereby in the
Shelf Registration Statement.
SINCE NOTES HELD BY NON-U.S. PERSONS WILL REMAIN SUBJECT TO TRANSFER
RESTRICTIONS BEYOND THE 40-DAY RESTRICTED PERIOD OF REGULATION S, IT IS
IMPORTANT FOR NON-U.S. (AS WELL AS U.S.) HOLDERS OF NOTES TO COMPLY WITH THE
PROCEDURES SET FORTH HEREIN.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, Holders and beneficial owners of Registrable Securities are
advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration
Rights Agreement to mean all or any portion of the Notes issued under the
Indenture and the Class A Common Stock issuable upon conversion or repurchase
thereof; provided, however, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Note or share of Class A Common Stock issuable upon
conversion or repurchase thereof except any such Note or share of Class A
Common Stock which (i) has been effectively registered under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement,
(ii) has been transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or is transferable pursuant to
paragraph (k) of such Rule 144 (or any successor provision thereto), or (iii)
has otherwise been transferred and a new Security or share of Class A Common
Stock not subject to transfer restrictions under the Securities Act has been
delivered by or on behalf of the Company in accordance with Section 3.5 of
the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3)
(unless otherwise specified under Item (3). The undersigned, by signing and
returning this Notice and Questionnaire, agrees to be bound with respect to
such Registrable Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement, including, without
limitation, Section 5 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the undersigned Selling Securityholder will be
required to deliver to the Company and the Trustee under the Indenture the
Notice of Transfer completed and signed set forth in Appendix I to the Notice
and Questionnaire and hereby undertakes to do so.
The undersigned Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such information
is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
----------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) Below:
----------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
(3) Below are Held:
----------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
Telephone: ------------------
Fax: ------------------------
Contact: --------------------
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below, the undersigned Selling Securityholder does
not beneficially own any Notes or Class A Common Stock previously issued
upon conversion or repurchase of any Note.
Principal amount of Notes beneficially owned:
----------------------------
Number of shares of Class A Common Stock beneficially owned and issued to
date upon conversion or repurchase of Notes.
(if any):
----------------------------
Principal amount of Notes which the undersigned wishes to be included in
the Shelf Registration Statement:
----------------------------------------
Number of shares of Class A Common Stock (if any) issued upon conversion
or repurchase of Registrable Securities which are to be included in the
Shelf Registration Statement:
-------------------------------------------------------------------------
(4) Other shares of Class A Common Stock or other Notes of the Company Owned
by the Selling Securityholder:
-------------------------------------------------------------------------
Except as set forth below, and under Item (3) above, the undersigned
Selling Securityholder is not the beneficial or registered owner of any
shares of Class A Common Stock or any other securities of the Company.
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during the
past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3)
only as follows (if at all): Such Registrable Securities may be sold from
time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealer or agents. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve crosses or block transactions)
(i) on any national securities exchanges or U.S. inter-dealer quotation
system of a registered national securities association on which the
Registrable Securities may be listed or quoted at the time of sale, (ii) in
the over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through the
writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they assume.
The Selling Securityholder may also sell Registrable Securities short and
deliver Registrable Securities
to close out such short position, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with
the prospectus delivery and other provisions of the Securities Act and
Exchange Act and the respective rules thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date
on which such information is provided to the Company, the Selling
Securityholder agrees to notify the transferee(s) at the time of the transfer
of its rights and obligations under this Notice and Questionnaire and the
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and
related Prospectus.
In accordance with the Selling Securityholder's obligation under the
Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Self Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Self Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights
Agreement shall be made in writing by hand delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
To the Company:
Affiliated Computer Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall
be binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of the
Company and the Selling Securityholder with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in
Item (3) above. This Agreement shall be governed in all respects by the laws
of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
--------------------------
--------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT
ON OR BEFORE (DEADLINE FOR RESPONSE) TO THE COMPANY AT:
Affiliated Computer Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
APPENDIX I
NOTICE TO TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Affiliated Computer Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Re: Affiliated Computer Services, Inc.
4% Convertible Subordinated Notes
due March 15, 2005 (the "Notes")
Dear Sirs:
Please be advised that _________________________________ has transferred
$_____ aggregate principal amount of the above-referenced notes or ______ shares
of the Company's Class A Common Stock, issued on conversion, repurchase
or redemption of Notes, pursuant to the Registration Statement Form S-3 (File
No. 333-_________) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1933, as amended, have been satisfied with respect
to the transfer described above and that the above-named beneficial owner of
the Notes of Class A Common Stock is named as a selling security holder in
the Prospectus dated ____________ or in amendments or supplements thereto,
and that the aggregate principal amount of the Notes of number of Class A
Common Stock transferred are [a portion of] the Notes or Class A Common Stock
listed in such Prospectus as amended or supplemented opposite such owner's
name.
Dated:
------------------------
Very truly yours,
------------------------------
(Name)
By:
--------------------------
(Authorized Signature)
