EXHIBIT 1.1
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
$550,000,000
6 1/4 % Notes due 2012
$250,000,000
7 1/8 % Notes due 2032
Purchase Agreement
June 21, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Science Applications International Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell to the several Initial Purchasers
listed in Schedule 1 hereto (the "Initial Purchasers"), for whom you are acting
as representative (the "Representative"), $550,000,000 principal amount of its
6 1/4 % Notes due 2012 (the "2012 Notes") and $250,000,000 principal amount of
its 7 1/8 % Notes due 2032 (the "2032 Notes", and together with the 2012 Notes,
the "Securities"). The Securities will be issued pursuant to an Indenture (the
"Indenture") to be dated as of June 28, 2002 between the Company, and JPMorgan
Chase Bank, as trustee (the "Trustee").
The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom. The Company has prepared a preliminary
offering memorandum dated June 18, 2002 (the "Preliminary Offering Memorandum")
and will prepare an offering memorandum dated the date hereof (the "Offering
Memorandum") setting forth information concerning the Company and the
Securities. Copies of the Preliminary Offering Memorandum have been, and copies
of the Offering Memorandum will be, delivered by the Company to the Initial
Purchasers pursuant to the terms of this Agreement. The Company hereby confirms
that it has authorized the use of the Preliminary Offering Memorandum and the
Offering Memorandum in connection with the offering and resale of the Securities
by the Initial Purchasers in the manner contemplated by this Agreement.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Offering Memorandum. References
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herein to the Preliminary Offering Memorandum and the Offering Memorandum shall
be deemed to refer to and include any document incorporated by reference
therein.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date (as defined below)
and substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Company will agree to file one or more
registration statements with the Securities and Exchange Commission (the
"Commission") providing for the registration under the Securities Act of the
Securities or the Exchange Securities referred to (and as defined) in the
Registration Rights Agreement.
The Company hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees to
issue and sell the Securities to the several Initial Purchasers as provided in
this Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase from the Company
the principal amount of Securities set forth opposite such Initial Purchaser's
name in Schedule 1 hereto at a price equal to 98.938% of the principal amount of
the 2012 Notes and 98.304% of the principal amount of the 2032 Notes, as the
case may be, plus accrued interest in each case, if any, from June 28, 2002 to
the Closing Date. The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company understands that the Initial Purchasers intend to offer
the Securities for resale on the terms set forth in the Offering Memorandum.
Each Initial Purchaser, severally and not jointly, represents, warrants and
agrees that:
(i) it is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act (a "QIB") and an accredited investor
within the meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Securities by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Securities as part of
their initial offering except:
(A) within the United States to persons whom it reasonably
believes to be QIBs in transactions pursuant to Rule 144A under
the Securities Act ("Rule 144A") and in connection with each such
sale, it has
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taken or will take reasonable steps to ensure that the purchaser
of the Securities is aware that such sale is being made in
reliance on Rule 144A; or
(B) in accordance with the restrictions set forth in Annex
A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(f) and 5(g), counsel for the Company and counsel for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers, and compliance by the Initial Purchasers
with their agreements, contained in paragraph (b) above (including Annex A
hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may
offer and sell Securities to or through any affiliate of an Initial Purchaser
and that any such affiliate may offer and sell Securities purchased by it to or
through any Initial Purchaser.
2. Payment and Delivery. (a) Payment for and delivery of the Securities
will be made at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ at 10:00 A.M., New York City time, on June 28, 2002, or at such other
time or place on the same or such other date, not later than the fifth business
day thereafter, as the Representative and the Company may agree upon in writing.
The time and date of such payment and delivery is referred to herein as the
"Closing Date".
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Initial Purchasers, of one or more global notes
representing the Securities (collectively, the "Global Note"). The Global Note
will be made available for inspection by the Representative not later than 1:00
P.M., New York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Initial Purchaser that:
(a) Offering Memorandum. The Preliminary Offering Memorandum, as of its
date, did not, and the Offering Memorandum, in the form first used by the
Initial Purchasers to confirm sales of the Securities and as of the Closing
Date, will not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (other than, in
the case of the Preliminary Offering Memorandum, pricing and pricing related
information of the Securities); provided that the Company makes no
representation or warranty with respect to any statements or
3
omissions made in reliance upon and in conformity with information relating to
any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through the Representative expressly for use in the Preliminary
Offering Memorandum and the Offering Memorandum.
(b) Incorporated Documents. The documents incorporated by reference in
the Preliminary Offering Memorandum and the Offering Memorandum, when filed with
the Commission, conformed or will conform, as the case may be, in all material
respects with the requirements of the Exchange Act and did not and will not
contain, as of their respective dates, an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) Financial Statements. The financial statements and the related notes
thereto included or incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; such financial statements
have been prepared in all material respects in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered thereby.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference in the
Preliminary Offering Memorandum and the Offering Memorandum, there has not been
any material change in the capital stock or long-term debt of the Company or any
of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole other than as set forth or contemplated in
the Preliminary Offering Memorandum and the Offering Memorandum.
(e) Organization and Good Standing. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in the
Preliminary Offering Memorandum and the Offering Memorandum, 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, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; each of the Company's "significant subsidiaries",
as defined pursuant to Rule 1-02 of Regulation S-X (such subsidiaries,
collectively, the "Significant Subsidiaries"), has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the
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Preliminary Offering Memorandum and the Offering Memorandum, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a whole;
and all the outstanding shares of capital stock of each Significant Subsidiary
of the Company have been duly authorized and validly issued, are fully-paid and
non-assessable, and (except for directors' qualifying shares or as described in
the Preliminary Offering Memorandum or the Offering Memorandum) are owned by the
Company, directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims.
(f) The Securities. The Securities have been duly authorized by the
Company, and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided for herein, will constitute
valid and binding obligations of the Company entitled to the benefits provided
by the Indenture, except to the extent such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
except as enforcement thereof is subject to general equitable principles
(whether considered in a proceeding in equity or at law).
(g) The Exchange Securities. On the Closing Date, the Exchange
Securities will have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as contemplated by the
Registration Rights Agreement, will be duly and validly issued and outstanding
and will constitute valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, except to the extent such enforceability may
be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general equitable
principles (whether considered in a proceeding in equity or at law).
(h) Purchase and Registration Rights Agreements. This Agreement has been
duly authorized, executed and delivered by the Company; and the Registration
Rights Agreement has been duly authorized by the Company and, when duly executed
and delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and binding agreement of the Company, except to the extent
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and except as enforcement thereof is
subject to general equitable principles (whether considered in a proceeding in
equity or at law), and any rights to indemnity and contribution may be limited
by federal and state securities laws and public policy considerations.
(i) The Indenture. The Indenture has been duly authorized and, when
executed and delivered by the Company and the Trustee, the Indenture will
constitute a valid and binding instrument, except to the extent such
enforceability may be limited by
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applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
except as enforcement thereof is subject to general equitable principles
(whether considered in a proceeding in equity or at law); the Indenture and the
Securities will substantially conform to the descriptions thereof in the
Preliminary Offering Memorandum and the Offering Memorandum; and on the Closing
Date, the Indenture will conform in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended, and the rules and requirements of
the Commission applicable to an indenture that is qualified thereunder.
(j) No Violation or Default. Neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse of time or both would be,
in violation of or in default under, its certificate of incorporation
("Certificate of Incorporation") or by-laws ("By-Laws") or any indenture,
mortgage, deed of trust, loan agreement, contract or subcontract or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them or any of their respective properties is
bound except for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole.
(k) No Conflicts. The issue and sale of the Securities and the
performance by the Company of all its obligations under the Securities, the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, contract or subcontract or other 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, except for conflicts, breaches or
defaults which individually and in the aggregate are not material to the Company
and its subsidiaries taken as a whole, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the By-Laws
of the Company or any applicable law or statue or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties other than
violations of any applicable law or statue or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties, which would not,
individually and in the aggregate, have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(l) No Consents Required. Assuming the accuracy of the Initial
Purchasers' representations contained herein, no consent, approval,
authorization, order, license, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions contemplated
by this Agreement, the Indenture or the Registration Rights Agreement, except
such consents, approvals, authorizations, orders, licenses, registrations or
qualifications as may be required under the Securities Act, the Trust Indenture
Act and state securities or Blue Sky laws pursuant to the Registration Rights
6
Agreement and as may be required under state securities or Blue Sky Laws in
connection with the purchase and resale of the Securities by the Initial
Purchasers.
(m) Legal Proceedings. Other than as set forth or contemplated in the
Preliminary Offering Memorandum and the Offering Memorandum, there are no legal
or governmental investigations, actions, suits or proceedings pending or, to the
knowledge of the Company, threatened, to which the Company or any of its
subsidiaries is or may be a party 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 business, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole.
(n) Independent Accountants. Deloitte & Touche, LLP who have certified
certain financial statements of the Company and its subsidiaries are independent
public accountants as required by the Securities Act.
(o) Investment Company Act. The Company is not, and after giving effect
to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Offering Memorandum will not be, an "investment
company" or an entity "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, "Investment Company Act").
(p) No Broker's Fees. None of the Company, or any of its subsidiaries is
a party to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against any of them or any
Initial Purchaser for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Securities.
(q) Rule 144A Eligibility. On the Closing Date, the Securities will not
be of the same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in an automated
inter-dealer quotation system; and each of the Preliminary Offering Memorandum
and the Offering Memorandum, as of its respective date, contains or will contain
all the information that, if requested by a prospective purchaser of the
Securities, would be required to be provided to such prospective purchaser
pursuant to Rule 144A(d)(4) under the Securities Act.
(r) No Integration. None of the Company, or any of its affiliates (as
defined in Rule 501(b) of Regulation D) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(s) No General Solicitation or Directed Selling Efforts. None of the
Company, or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no representation is
made) has (i) solicited offers for, or offered or sold, the Securities by means
of any form of general solicitation or general
7
advertising within the meaning of Rule 502(c) of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act or (ii) engaged in any directed selling efforts within the meaning of
Regulation S under the Securities Act ("Regulation S"), and all such persons
have complied with the offering restrictions requirement of Regulation S.
(t) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Securities to the Initial Purchasers and the offer, resale and delivery of
the Securities by the Initial Purchasers in the manner contemplated by this
Agreement and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act.
(u) No Stabilization. The Company has not taken, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.
(v) Forward-Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained or incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(w) Taxes. Except as described in the Preliminary Offering Memorandum
and the Offering Memorandum, there is no deficiency with respect to taxes which
has been or would reasonably be expected to be asserted against the Company or
any of its subsidiaries that would have a material adverse effect on the Company
or its subsidiaries taken as a whole.
(x) Licenses and Permits. Each of the Company and its subsidiaries owns,
possesses or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations and
all courts and other tribunals, domestic or foreign, necessary to own or lease,
as the case may be, and to operate its properties and to carry on its business
as conducted as of the date hereof, except for those instances in which the
failure to do so would not, individually and in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole; except as
set forth in the Preliminary Offering Memorandum and the Offering Memorandum,
neither the Company nor any subsidiary has received any actual notice of any
proceeding relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except for notices
the content of which if accurate would not, individually and in the aggregate,
have a material adverse effect on the Company and its subsidiaries taken as a
whole; and each of the Company and its
8
subsidiaries is in compliance with all laws and regulations relating to the
conduct of its business as conducted as of the date hereof, except for the
instances in which the failure to so be in compliance, individually and in the
aggregate, would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(y) Intellectual Property. Each of the Company and its subsidiaries
owns, possesses or has the right to use the Intellectual Property employed by it
in connection with the business conducted by it as of the date hereof, except
for those instances in which the failure to do so would not, individually and in
the aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole; and, except as set forth in the Preliminary
Offering Memorandum and the Offering Memorandum, neither the Company nor any
subsidiary has received any notice of the infringement of asserted rights of
others with respect to any Intellectual Property, except for notices the content
of which if accurate would not, individually and in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken as a whole;
"Intellectual Property" means all patents, patent applications, trademarks,
trademark applications, service marks, tradenames, copyrights, trade secrets,
know-how (including all unpatented or unpatentable proprietary or confidential
information, systems or procedures), technology, inventions, designs, processes,
methods, technical data and information or other intangible asset or any license
or other right to any of the foregoing.
(z) Contracts. All contracts and subcontracts from which the Company and
its Significant Subsidiaries derive revenue in connection with the business
conducted by them on the date hereof are valid and binding obligations of the
Company and/or one or more of its Significant Subsidiaries, as the case may be,
except for such contracts which, if not so valid and binding, would not have had
and would not have, individually and in the aggregate, a material adverse effect
on the Company and its subsidiaries taken as a whole, and, to the Company's
knowledge, no party thereto is, or with the giving or notice or the lapse of
time or both would be, in default thereunder, except in such cases as have not
had and would not have, individually and in the aggregate, a material adverse
effect on the Company and its subsidiaries taken as a whole.
4. Further Agreements of the Company. The Company covenants and agrees
with each Initial Purchaser that:
(a) Delivery of Copies. The Company will deliver to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto) as the
Representative may reasonably request.
(b) Amendments or Supplements. From the date hereof until the completion
of the initial offering, before making or distributing any amendment or
supplement to the Preliminary Offering Memorandum or the Offering Memorandum
(excluding any documents incorporated by reference therein), the Company will
furnish to the Representative and counsel for the Initial Purchasers a copy of
the proposed amendment or supplement for review, and will not distribute any
such proposed
9
amendment or supplement (other than one resulting from the filing of any
document under the Exchange Act which the Initial Purchasers were afforded a
reasonable opportunity, in light of the circumstances in which such filing is
made, to comment upon) or file any such document with the Commission to which
the Representative reasonably objects, unless in the Company's judgment such
distribution or filing is necessary to comply with the securities laws.
(c) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) of the issuance
by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose;
(ii) of the occurrence of any event at any time prior to the completion of the
initial offering of the Securities as a result of which the Offering Memorandum
as then amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing when the Offering Memorandum
is delivered to a purchaser, not misleading; and (iii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or suspending any such qualification of the Securities and, if any
such order is issued, will obtain as soon as possible the withdrawal thereof.
(d) Ongoing Compliance of the Offering Memorandum. If at any time prior
to the completion of the initial offering of the Securities (i) any event shall
occur or condition shall exist as a result of which the Offering Memorandum as
then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Offering Memorandum to comply with law, the Company
will immediately notify the Initial Purchasers thereof and forthwith prepare
and, subject to paragraph (b) above, file with the Commission any document to be
incorporated by reference therein or furnish to the Initial Purchasers such
amendments or supplements to the Offering Memorandum as may be necessary so that
the statements in the Offering Memorandum as so amended or supplemented (or
including such document to be incorporated by reference therein) will not, in
the light of the circumstances existing when the Offering Memorandum is
delivered to a purchaser, be misleading or so that the Offering Memorandum will
comply with law.
(e) Blue Sky Compliance. The Company will cooperate with the Initial
Purchasers to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representative shall reasonably
request and will continue such qualifications in effect so long as required for
the offering and resale of the Securities; provided that the Company shall not
be required to (i) qualify as a foreign
10
corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction, (iii)
subject itself to taxation in any such jurisdiction if it is not so subject, or
(iv) make any change to its Certificate of Incorporation or By-laws or any
agreement between it and its stockholders).
(f) Clear Market. During the period from the date hereof through and
including the Closing Date, the Company will not, without the prior written
consent of the Representative, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which are substantially similar to
the Securities.
(g) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Offering Memorandum under the heading
"Use of Proceeds".
(h) DTC. The Company will assist the Initial Purchasers in arranging for
the Securities to be eligible for clearance and settlement through The
Depository Trust Company ("DTC").
(i) No Resales by the Company. Until the issuance of the Exchange
Securities, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the Securities
that have been acquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered under
the Securities Act.
(j) No Integration. None of the Company or any of its affiliates (as
defined in Rule 501(b) of Regulation D) will, directly or through any agent,
sell, offer for sale, solicit offers to buy or otherwise negotiate in respect
of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(k) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no covenant is given)
will (i) solicit offers for, or offer or sell, the Securities by means of any
form of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act or (ii) engage in any directed
selling efforts within the meaning of Regulation S, and all such persons will
comply with the offering restrictions requirement of Regulation S.
(l) No Stabilization. The Company will not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.
5. Conditions of Initial Purchasers' Obligations. The obligation of each
Initial Purchaser to purchase Securities on the Closing Date as provided herein
is subject to
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the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) Representations and Warranties. The representations and warranties
of the Company contained herein shall be true and correct on the date hereof and
on and as of the Closing Date; and the statements of the Company and its
officers made in any certificates delivered pursuant to this Agreement shall be
true and correct on and as of the Closing Date.
(b) No Downgrade. Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, (i) no downgrading shall have occurred
in the rating accorded the Securities or any other debt securities or preferred
stock issued by the Company by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act; and (ii) no such organization shall have
publicly announced that it has under surveillance or review, its rating of the
Securities or of any other debt securities or preferred stock issued by the
Company (other than an announcement with positive implications of a possible
upgrading).
(c) No Material Adverse Change. Subsequent to the execution and delivery
of this Agreement, no event or condition of a type described in Section 3(d)
hereof shall have occurred or shall exist, which event or condition is not
described in the Offering Memorandum (excluding any amendment or supplement
thereto or any document filed with the Commission after the date hereof and
incorporated by reference therein) and the effect of which in the reasonable
judgment of the Representative makes it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Securities on the terms and in the
manner contemplated by this Agreement and the Offering Memorandum.
(d) Officer's Certificate. The Representative shall have received on and
as of the Closing Date a certificate of an executive officer of the Company who
has specific knowledge of the Company's financial matters, acting as an officer
of the Company and not in an individual capacity, and is satisfactory to the
Representative confirming that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date and to the effect set forth in paragraphs (a)
through (c) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing
Date, Deloitte & Touche, LLP shall have furnished to the Representative, at the
request of the Company, letters, dated the respective dates of delivery thereof
and addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, containing statements and information of the
type customarily included in accountants' "comfort letters" to initial
purchasers with respect to the financial statements and certain financial
information contained or incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum; provided that the letter delivered on
the
12
Closing Date shall use a "cut-off" date no more than three business days prior
to the Closing Date.
(f) Opinion of Counsel for the Company. ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Company, shall have furnished to the Representative,
at the request of the Company, their written opinion, dated the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, substantially to the effect set forth in
Annex B hereto. In rendering such opinions, such counsel may rely as to matters
of fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and certificates or other written statements of official
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company. The opinion of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ described above shall be rendered to the Initial Purchasers at the
request of the Company and shall state so therein.
(g) Opinion of Counsel of the Company. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice
President and General Counsel of the Company, shall have furnished to the
Representative his written opinion, dated the Closing Date, in form and
substance reasonably satisfactory to the Representative, to the effect set forth
in Annex C hereto. In rendering such opinions, such counsel may rely as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other written statements
of public officials.
(h) Investment Company Act of 1940 Opinion. Dechert Price & ▇▇▇▇▇▇,
special counsel to the Company, shall have furnished to the Representative a
written opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative, to matters related to the Investment Company
Act of 1940, as amended.
(i) Opinion of Counsel for the Initial Purchasers. The Representative
shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to such matters as
the Representative may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and
no statute, rule, regulation or order shall have been enacted, adopted or issued
by any federal, state or foreign governmental or regulatory authority that
would, as of the Closing Date, prevent the issuance or sale of the Securities;
and no injunction or order of any federal, state or foreign court shall have
been issued that would, as of the Closing Date, prevent the issuance or sale of
the Securities.
(k) Good Standing. The Representative shall have received on and as of
the Closing Date satisfactory evidence of the good standing of the Company in
its jurisdiction of organization and its good standing in such other
jurisdictions as the
13
Representative may reasonably request, in each case in writing or any standard
form of telecommunication, from the appropriate governmental authorities of such
jurisdictions.
(l) Registration Rights Agreement. The Initial Purchasers shall have
received a counterpart of the Registration Rights Agreement that shall have been
executed and delivered by a duly authorized officer of the Company.
(m) DTC. The Securities shall be eligible for clearance and settlement
through DTC.
(n) Additional Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser, its affiliates and each
person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted), joint or several, caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Preliminary Offering Memorandum or the Offering Memorandum (or any
amendment or supplement thereto), or caused by any omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through the Representative expressly for use therein; provided, that
with respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this paragraph (a)
shall not inure to the benefit of any Initial Purchaser to the extent that the
sale to the person asserting any such loss, claim, damage or liability was an
initial resale by such Initial Purchaser and any such loss, claim, damage or
liability of or with respect to such Initial Purchaser results from the fact
that both (i) a copy of the Offering Memorandum (excluding any documents
incorporated by reference therein) was not sent or given to such person at or
prior to the written confirmation of the sale of such Securities to such person
and (ii) the untrue statement in or omission from such Preliminary Offering
Memorandum was corrected
14
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company with the
provisions of Section 4 hereof.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
affiliates 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 to the
same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the
Representative expressly for use in the Preliminary Offering Memorandum and the
Offering Memorandum (or any amendment or supplement thereto.
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 6 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 6. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 6 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed. Any
15
such separate firm for any Initial Purchaser, its affiliates and any control
persons of such Initial Purchaser shall be designated in writing by ▇.▇. ▇▇▇▇▇▇
Securities Inc. and any such separate firm for the Company and any control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for the reasonable fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Person shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other from the offering of the Securities or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company on the one hand and the Initial
Purchasers on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Initial Purchasers on the other shall be deemed to be in
the same respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Securities and the total discounts
and commissions received by the Initial Purchasers in connection therewith, as
provided in this Agreement, bear to the aggregate offering price of the
Securities. The relative fault of the Company on the one hand and the Initial
Purchasers on the other shall be determined by reference to, between other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state
16
a material fact relates to information supplied by the Company or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (d) above. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall an Initial Purchaser be required
to contribute any amount in excess of the amount by which the total price at
which the Securities sold by such Initial Purchaser were offered for resale
exceeds the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 6 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Representative, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the Offering
Memorandum.
8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Securities that it
has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Securities by other persons
satisfactory to the
17
Company on the terms contained in this Agreement. If, within 36 hours after any
such default by any Initial Purchaser, the non-defaulting Initial Purchasers do
not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of 36 hours within which to procure other persons
satisfactory to the non-defaulting Initial Purchasers to purchase such
Securities on such terms. If other persons become obligated or agree to purchase
the Securities of a defaulting Initial Purchaser, either the non-defaulting
Initial Purchasers or the Company may postpone the Closing Date for up to five
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Initial Purchasers may be necessary in the
Offering Memorandum or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Offering
Memorandum that effects any such changes. As used in this Agreement, the term
"Initial Purchaser" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
(a) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Company shall have the right to require each
non-defaulting Initial Purchaser to purchase the principal amount of Securities
that such Initial Purchaser agreed to purchase hereunder plus such Initial
Purchaser's pro rata share (based on the principal amount of Securities that
such Initial Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers. Any termination of this
Agreement pursuant to this Section 8 shall be without liability on the part of
the Company, except that the Company will continue to be liable for the payment
of expenses as set forth in Section 9 hereof and except that the provisions of
Section 6 hereof shall not terminate and shall remain in effect.
(c) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any non-defaulting
Initial Purchaser for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
18
agrees to pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (ii) the costs incident
to the preparation and printing of the Preliminary Offering Memorandum and the
Offering Memorandum (including any amendment or supplement thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing each of
the Transaction Documents; (iv) the fees and expenses of the Company's counsel
and independent accountants; (v) the reasonable fees and expenses incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Representative may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the reasonable related fees
and expenses of counsel for the Initial Purchasers which shall not exceed
$10,000); (vi) any fees charged by rating agencies for rating the Securities;
(vii) the fees and expenses of the Trustee and any paying agent (including
reasonable related fees and expenses of any counsel to such parties); and (viii)
all expenses and application fees incurred in connection with the approval of
the Securities for book-entry transfer by DTC.
(b) If (i) this Agreement is terminated pursuant to Section 7(ii), (ii)
the Company for any reason fails to tender the Securities for delivery to the
Initial Purchasers (other than as a result of Section 7 or 8) or (iii) the
Initial Purchasers decline to purchase the Securities for any other reason
permitted under this Agreement (other than as a result of Section 7 or 8), the
Company agrees to reimburse the Initial Purchasers for all out-of-pocket costs
and expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by the Initial Purchasers in connection with this Agreement
and the offering contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto, their respective
affiliates and any controlling persons referred to herein, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of
Securities from any Initial Purchaser shall be deemed to be a successor merely
by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchasers contained in this Agreement or made by or on behalf of the Company or
the Initial Purchasers pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Company or the
Initial Purchasers.
12. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day
19
on which banks are permitted or required to be closed in New York City; (c) the
term "Exchange Act" means the Securities Exchange Act of 1934, as amended; and
(d) the term "subsidiary" has the meaning set forth in Rule 405 under the
Securities Act.
13. Miscellaneous. (a) Authority of the Representative. Any action by
the Initial Purchasers hereunder may be taken by ▇.▇. ▇▇▇▇▇▇ Securities Inc. on
behalf of the Initial Purchasers, and any such action taken by ▇.▇. ▇▇▇▇▇▇
Securities Inc. shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representative c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention:
Transaction Execution Desk. Notices to the Company shall be given to them at
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
20
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By: _________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Corporate Executive Vice President
Accepted: June 21, 2002
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers listed
in Schedule 1 hereto.
By: _______________________
Name:
Title:
21
Principal Principal
Amount of Amount of
Initial Purchaser 2012 Notes 2032 Notes
----------------- ------------ ------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. $275,000,000 $125,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $68,750,000 $31,250,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $68,750,000 $31,250,000
The Royal Bank of Scotland plc $27,500,000 $12,500,000
Tokyo-Mitsubishi International plc $27,500,000 $12,500,000
Wachovia Securities, Inc. $27,500,000 $12,500,000
BNY Capital Markets, Inc. $11,000,000 $5,000,000
McDonald Investments Inc. $11,000,000 $5,000,000
Mellon Financial Markets, LLC $11,000,000 $5,000,000
Mizuho International plc $11,000,000 $5,000,000
▇▇ ▇▇▇▇▇ Securities Corporation $11,000,000 $5,000,000
------------ ------------
Total $550,000,000 $250,000,000
22
Annex A
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United
States:
(a) Each Initial Purchaser acknowledges that the Securities have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the Securities,
and will offer and sell the Securities, (A) as part of their
distribution at any time and (B) otherwise until 40 days after the later
of the commencement of the offering of the Securities and the Closing
Date, only in accordance with Regulation S under the Securities Act
("Regulation S") or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates or
any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering
restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any Securities
sold in reliance on Regulation S, such Initial Purchaser will have sent
to each distributor, dealer or other person receiving a selling
concession, fee or other remuneration that purchase Securities from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering of the Securities
and the date of original issuance of the Securities, except in
accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms used
above have the meanings given to them by Regulation S."
(iv) Such Initial Purchaser has not and will not enter into any
contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the
prior written consent of the Company.
23
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it has not offered or sold and prior to the date six months
after the Closing Date will not offer or sell any Securities to persons
in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result
in an offer to the public in the United Kingdom within the meaning of
the United Kingdom Public Offers of Securities Regulations 1995 (as
amended);
(ii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and Markets Act 2000
(the "FSMA")) received by it in connection with the issue or sale of any
Securities in circumstances in which Section 21(1) of the FSMA does not
apply to the Company; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom.
(d) Each Initial Purchaser acknowledges that no action has been or will
be taken by the Company that would permit a public offering of the Securities,
or possession or distribution of the Preliminary Offering Memorandum, the
Offering Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required.
24
Annex B
[Form of Opinion of Counsel for the Company]
25
Annex C
[Form of Opinion of Counsel of the Company]
26
Exhibit A
[Form of Registration Rights Agreement]
27