____________________________________________________________________________
____________________________________________________________________________
MERRILL LYNCH & CO., INC.
(a Delaware corporation)
PURCHASE AGREEMENT
Dated: January 26, 1998
____________________________________________________________________________
____________________________________________________________________________
Table of Contents
SECTION 1. Representations and Warranties. . . . . . . . . . . . . . . . . . . 4
(a) Representations and Warranties by the Company. . . . . . . . . . . . . . 4
(i) Compliance with Registration Requirements . . . . . . . . . . . . . 4
(ii) Incorporated Documents. . . . . . . . . . . . . . . . . . . . . . . 5
(iii) Independent Accountants. . . . . . . . . . . . . . . . . . . . 6
(iv) Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . 6
(v) No Material Adverse Change in Business. . . . . . . . . . . . . . . 6
(vi) Good Standing of the Company. . . . . . . . . . . . . . . . . . . . 6
(vii) Good Standing of Subsidiaries. . . . . . . . . . . . . . . . . 7
(viii) Authorization of Agreement . . . . . . . . . . . . . . . . . . 7
(ix) Authorization of the Indenture. . . . . . . . . . . . . . . . . . . 7
(x) Authorization of the Securities . . . . . . . . . . . . . . . . . . 7
(xi) Authorization of the Forward Purchase Contract. . . . . . . . . . . 8
(xii) Description of Securities, Indenture and Forward
Purchase Contract . . . . . . . . . . . . . . . . . . . . . . . . . 8
(xiii) Absence of Defaults and Conflicts. . . . . . . . . . . . . . . 8
(xiv) Absence of Labor Dispute . . . . . . . . . . . . . . . . . . . 9
(xv) Absence of Proceedings. . . . . . . . . . . . . . . . . . . . . . . 9
(xvi) Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xvii) Possession of Intellectual Property. . . . . . . . . . . . . . 10
(xviii) Absence of Further Requirements. . . . . . . . . . . . . . . . 10
(xix) Possession of Licenses and Permits . . . . . . . . . . . . . . 10
(xx) Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Representations and Warranties by the Contracting Stockholder. . . . . . 11
(i) Right, Power and Capacity . . . . . . . . . . . . . . . . . . . . . 11
(ii) Execution and Delivery of Agreements. . . . . . . . . . . . . . . . 11
(iii) Delivery of Contract Consideration . . . . . . . . . . . . . . 11
(iv) Absence of Further Requirements . . . . . . . . . . . . . . . . . . 12
(v) Absence of Defaults or Conflicts. . . . . . . . . . . . . . . . . . 12
(vi) CIBER Registration Statement and Prospectus . . . . . . . . . . . . 13
(c) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2. Sale and Delivery to Underwriter; Closing . . . . . . . . . . . . . 14
(a) Initial Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Option Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Denominations; Registration. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . 15
(i) Compliance with Securities Regulations and Commission
Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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(ii) Filing of Amendments. . . . . . . . . . . . . . . . . . . . . . . . 15
(iii) Delivery of ML&Co. Registration Statements . . . . . . . . . . 15
(iv) Delivery of ML&Co. Prospectuses . . . . . . . . . . . . . . . . . . 16
(v) Continued Compliance with Securities Laws . . . . . . . . . . . . . 16
(vi) Blue Sky Qualifications . . . . . . . . . . . . . . . . . . . . . . 16
(vii) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(viii) Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 17
(ix) Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(x) Reporting Requirements. . . . . . . . . . . . . . . . . . . . . . . 17
(b) Covenants of the Contracting Stockholder . . . . . . . . . . . . . . . . 17
(i) Restriction on Sale of Securities . . . . . . . . . . . . . . . . . 17
(ii) Purpose Statement . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Expenses Payable by the Company. . . . . . . . . . . . . . . . . . . . . 18
(b) Expenses Payable by the Contracting Stockholder. . . . . . . . . . . . . 18
(c) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Allocation of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5. Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Conditions of Underwriter's Obligations. . . . . . . . . . . . . . . . . 18
(1) Effectiveness of ML&Co. Registration Statement. . . . . . . . . . . 19
(2) Effectiveness of CIBER Registration Statement . . . . . . . . . . . 19
(3) Opinion of Counsel for the Company. . . . . . . . . . . . . . . . . 19
(4) Opinion of Counsel for the Underwriter. . . . . . . . . . . . . . . 19
(5) Opinion of Counsel for CIBER and the Contracting
Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(6) Company Officers' Certificate . . . . . . . . . . . . . . . . . . . 20
(7) CIBER Officers' Certificate . . . . . . . . . . . . . . . . . . . . 20
(8) Certificate of the Contracting Stockholder. . . . . . . . . . . . . 21
(9) Company Accountant's Comfort Letter . . . . . . . . . . . . . . . . 21
(10) CIBER Accountant's Comfort Letter . . . . . . . . . . . . . . . . . 21
(11) Company Accountant's Bring-down Comfort Letter. . . . . . . . . . . 21
(12) CIBER Accountant's Bring-down Comfort Letter. . . . . . . . . . . . 21
(13) Maintenance of Rating . . . . . . . . . . . . . . . . . . . . . . . 21
(14) Approval of Listing . . . . . . . . . . . . . . . . . . . . . . . . 21
(15) No Objection. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(16) Lock-up Agreements. . . . . . . . . . . . . . . . . . . . . . . . . 22
(17) Conditions to Purchase of Option Securities . . . . . . . . . . . . 22
(18) Additional Documents. . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Conditions of the Company's Obligations. . . . . . . . . . . . . . . . . 23
(1) Effectiveness of CIBER Registration Statement . . . . . . . . . . . 23
(2) Opinion of Counsel for the Company. . . . . . . . . . . . . . . . . 24
(3) Opinion of Counsel for the Underwriter. . . . . . . . . . . . . . . 24
(4) Opinion of Counsel for CIBER and the Contracting
Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ii
(5) CIBER Officers' Certificate . . . . . . . . . . . . . . . . . . . . 24
(6) Certificate of the Contracting Stockholder. . . . . . . . . . . . . 24
(7) CIBER Accountant's Comfort Letter . . . . . . . . . . . . . . . . . 24
(8) CIBER Accountant's Bring-down Comfort Letter. . . . . . . . . . . . 24
(9) Conditions to Sale of Option Securities . . . . . . . . . . . . . . 24
(c) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Indemnification of the Underwriter by the Company. . . . . . . . . . . . 26
(b) Indemnification of the Underwriter and the Company by the
Contracting Stockholder. . . . . . . . . . . . . . . . . . . . . . . . . 27
(c) Indemnification of the Company and the Contracting Stockholder . . . . . 28
(d) Actions against Parties; Notification. . . . . . . . . . . . . . . . . . 28
(e) Settlement without Consent if Failure to Reimburse . . . . . . . . . . . 29
SECTION 7. Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. . . 31
SECTION 9. Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . 32
(a) Termination; General . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(b) Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 12. GOVERNING LAW AND TIME. . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 13. Effect of Headings. . . . . . . . . . . . . . . . . . . . . . . . . 33
iii
MERRILL LYNCH & CO., INC.
(a Delaware corporation)
7 7/8% STRYPES (-SM-) DUE February 1, 2001
Payable with Shares of Common Stock of CIBER, Inc.
PURCHASE AGREEMENT
January 26, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1209
Ladies and Gentlemen:
Merrill Lynch & Co., Inc., a Delaware corporation (the "Company"), and
Bobby G. Stevenson, individually and as settlor, beneficiary and trustee of
the trust made by Bobby G. Stevenson as settlor and trustee under the 1998
Revocable Trust Agreement dated January 26, 1998 (the "1998 Bobby G.
Stevenson Revocable Trust"), confirm their respective agreements with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Underwriter") with respect to the issue and sale by the Company and the
purchase by the Underwriter of an aggregate of 1,750,000 of the Company's
Structured Yield Product Exchangeable for Stock-SM-, 7 7/8% STRYPES-SM- Due
February 1, 2001 (each, a "STRYPES") and with respect to the grant by the
Company to the Underwriter of the option described in Section 2(b) hereof to
purchase all or any part of 262,500 additional STRYPES to cover
over-allotments, if any. The aforesaid 1,750,000 STRYPES (the "Initial
Securities") to be purchased by the Underwriter and all or any part of the
262,500 STRYPES subject to the option described in Section 2(b) hereof (the
"Option Securities") are hereinafter called, collectively, the "Securities."
The Securities are to be issued pursuant to an indenture, dated as of April
1, 1983 and restated as of April 1, 1987 (as amended and supplemented, the
"Principal Indenture"), between the Company and The Chase Manhattan Bank,
formerly known as Chemical Bank (successor by merger to Manufacturers Hanover
Trust Company), as trustee (the "Trustee"), as further amended and
supplemented by the Eleventh Supplemental Indenture, to be dated as of
January 30, 1998 (the "Supplemental Indenture"), between the Company and the
Trustee, relating to the STRYPES. The Principal Indenture, as amended and
supplemented by the
- -----------------------------
(-SM-) Service mark of Merrill Lynch & Co., Inc.
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Supplemental Indenture, is hereinafter referred to as the "Indenture". Bobby
G. Stevenson, individually and as settlor, beneficiary and trustee of the
1998 Bobby G. Stevenson Revocable Trust, is hereinafter called the
"Contracting Stockholder."
The STRYPES will be payable at maturity by delivery of the Maturity
Consideration (as defined in the Supplemental Indenture), subject to the
Company's option to deliver cash with an equal value. The Company, CIBER,
Inc., a Delaware corporation ("CIBER"), and the Underwriter are concurrently
entering into an agreement dated the date hereof (the "Registration
Agreement") relating to the registration of shares of common stock, par value
$.01 per share (the "CIBER Common Stock"), of CIBER that may be deliverable
by the Company pursuant to the STRYPES.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after
this Agreement and the Registration Agreement have been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-28537) for the
registration of debt securities, including the Securities, and warrants under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company has filed a preliminary prospectus and
preliminary prospectus supplement relating to the offering of the Securities.
Promptly after execution and delivery of this Agreement, the Company will
either (i) prepare and file a prospectus and prospectus supplement in
accordance with the provisions of paragraph (b) of Rule 424 ("Rule 424(b)")
of the 1933 Act Regulations or (ii) if the Company has elected to rely upon
Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (an "ML&Co. Term Sheet") in accordance with the provisions of Rule 434
and Rule 424(b). The information included in such ML&Co. Term Sheet that was
omitted from such registration statement (as so amended) at the time it
became effective but that is deemed to be part of such registration statement
(as so amended) as of the time such information was filed with the Commission
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Any prospectus and prospectus supplement relating to the
offering of the Securities that omitted, as applicable, the Rule 434
Information or other information to be included in the prospectus and
prospectus supplement filed with the Commission pursuant to Rule 424(b), and
was used after such registration statement (as so amended) became effective
and prior to the execution and delivery of this Agreement, in each case
excluding any CIBER preliminary prospectus (as defined below) attached
thereto, are herein called, collectively, an "ML&Co. preliminary prospectus."
Such registration statement (as so amended), including the exhibits thereto,
the schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 434 Information, if applicable, is
herein called the "ML&Co. Registration Statement." Any registration
statement filed by the Company pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "ML&Co. Rule 462(b) Registration
Statement," and after such filing the term "ML&Co. Registration Statement"
shall include the ML&Co. Rule 462(b) Registration Statement. The final
prospectus and final prospectus supplement relating to the offering of the
Securities, including the documents incorporated by reference therein
2
pursuant to Item 12 of Form S-3 under the 1933 Act, but excluding any CIBER
Prospectus (as defined below) attached thereto, in the form first furnished
to the Underwriter for use in connection with the offering of the Securities
are collectively referred to herein as the "ML&Co. Prospectus." If Rule 434
is relied on, the term "ML&Co. Prospectus" shall refer to the ML&Co.
preliminary prospectus dated January 14, 1998 together with the ML&Co. Term
Sheet and all references in this Agreement to the date of the ML&Co.
Prospectus shall mean the date of the ML&Co. Term Sheet. For purposes of
this Agreement, all references to the ML&Co. Registration Statement, any
ML&Co. preliminary prospectus, the ML&Co. Prospectus or any ML&Co. Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
ML&Co. Registration Statement, any ML&Co. preliminary prospectus or the
ML&Co. Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated by reference in the ML&Co. Registration
Statement, any ML&Co. preliminary prospectus or the ML&Co. Prospectus, as the
case may be, and shall be deemed to exclude all financial statements and
schedules and other information which are included or incorporated by
reference in any CIBER preliminary prospectus or the CIBER Prospectus which
is attached to any ML&Co. preliminary prospectus or the ML&Co. Prospectus;
and all references in this Agreement to amendments or supplements to the
ML&Co. Registration Statement, any ML&Co. preliminary prospectus or the
ML&Co. Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the ML&Co. Registration
Statement, such ML&Co. preliminary prospectus or the ML&Co. Prospectus, as
the case may be.
CIBER has filed with the Commission a registration statement on Form S-3
(No. 333-43857) covering the registration of the shares of CIBER Common Stock
deliverable upon payment and discharge of the Securities under the 1933 Act,
including the related preliminary prospectus or prospectuses. Each
prospectus used before such registration statement became effective, in each
case excluding any ML&Co. preliminary prospectus attached thereto, is herein
called a "CIBER preliminary prospectus." Such registration statement,
including the exhibits thereto, the schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective, is herein called the
"CIBER Registration Statement." Any registration statement filed by CIBER
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as
the "CIBER Rule 462(b) Registration Statement," and after such filing the
term "CIBER Registration Statement" shall include the CIBER Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act, but excluding any ML&Co. Prospectus attached thereto, in the form
first furnished to the Underwriter for use in connection with the offering of
the Securities is herein called the "CIBER Prospectus." For purposes of this
Agreement, all references to the CIBER Registration Statement, any CIBER
preliminary prospectus, the CIBER Prospectus or any amendment or
3
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to EDGAR.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
CIBER Registration Statement, any CIBER preliminary prospectus or the CIBER
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information
which is incorporated by reference in the CIBER Registration Statement, any
CIBER preliminary prospectus or the CIBER Prospectus, as the case may be, and
shall be deemed to exclude all financial statements and schedules and other
information which are included or incorporated by reference in any ML&Co.
preliminary prospectus or the ML&Co. Prospectus which is attached to any
CIBER preliminary prospectus or the CIBER Prospectus; and all references in
this Agreement to amendments or supplements to the CIBER Registration
Statement, any CIBER preliminary prospectus or the CIBER Prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act
which is incorporated by reference in the CIBER Registration Statement, such
CIBER preliminary prospectus or the CIBER Prospectus, as the case may be.
Prior to the closing under this Agreement, the Company, Merrill Lynch
Mortgage Capital Inc., a wholly-owned subsidiary of the Company (the "ML&Co.
Subsidiary"), the Contracting Stockholder and The Bank of New York, as agent
and custodian for or on behalf of the ML&Co. Subsidiary (the "Collateral
Agent"), will enter into a forward purchase contract (the "Forward Purchase
Contract"), pursuant to which the Contracting Stockholder will be obligated
to deliver to the ML&Co. Subsidiary, on the business day immediately
preceding the maturity date of the Securities, the Maturity Consideration
required by the Company to pay and discharge all of the Securities at
maturity as described in the ML&Co. Prospectus, subject to the Contracting
Stockholder's right to satisfy his obligations thereunder through a cash
payment based on the value of such Maturity Consideration (the "Forward
Purchase"). The Contracting Stockholder's obligations under the Forward
Purchase Contract will be secured by a pledge of collateral pursuant to the
terms of a security and pledge agreement (the "Security and Pledge
Agreement") among the Contracting Stockholder, the ML&Co. Subsidiary and the
Collateral Agent. Under the Forward Purchase Contract, the Company has
agreed to pay and discharge the STRYPES by delivering to the holders thereof
at maturity the form of consideration that the ML&Co. Subsidiary receives
from the Contracting Stockholder.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with the
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the ML&Co.
Registration Statement and any ML&Co. Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the
4
ML&Co. Registration Statement or any ML&Co. Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part
of the Commission for additional information has been complied with.
At the respective times the ML&Co. Registration Statement, any ML&Co.
Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the ML&Co. Registration
Statement, the ML&Co. Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the ML&Co. Prospectus nor any amendments or supplements thereto, at
the time the ML&Co. Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will 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. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to (A)
statements in or omissions from the ML&Co. Registration Statement or ML&Co.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use in
the ML&Co. Registration Statement or ML&Co. Prospectus or (B) that part of
the ML&Co. Registration Statement that constitutes the Statement of
Eligibility on Form T-1 (the "Form T-1") under the 1939 Act of the Trustee.
Each ML&Co. preliminary prospectus and the prospectus relating to the
offering of the Securities filed as part of the ML&Co. Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and, if applicable, each
ML&Co. preliminary prospectus and the ML&Co. Prospectus delivered to the
Underwriter for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the ML&Co. Registration Statement and the
ML&Co. Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as
5
applicable, and, when read together with the other information in the
ML&Co. Prospectus, at the time the ML&Co. Registration Statement became
effective, at the time the ML&Co. Prospectus was issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the ML&Co.
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
ML&Co. Registration Statement and the ML&Co. Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the ML&Co.
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the ML&Co. Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
ML&Co. Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the ML&Co. Registration Statement
and the ML&Co. Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on its outstanding common stock and regular dividends
on its outstanding preferred stock in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the ML&Co. Prospectus and to enter into and perform its
obligations under this Agreement, the Indenture and the Forward Purchase
Contract; and the Company is duly qualified as a foreign corporation to
transact business
6
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company which is a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X under the 1933 Act (each a "Subsidiary" and, collectively,
the "Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the ML&Co.
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the ML&Co. Registration Statement, all of
the issued and outstanding capital stock of each such Subsidiary has been
duly authorized and validly issued and is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such Subsidiary. The only subsidiaries of the
Company are (A) the subsidiaries listed in Exhibit 21 to the Annual Report
on Form 10-K of the Company filed with the Commission under Section 13 of
the 1934 Act for the fiscal year ended December 27, 1996 and (B) certain
other subsidiaries which, considered in the aggregate as a single
subsidiary, do not constitute a "significant subsidiary" as defined in Rule
1-02 of Regulation S-X under the 1933 Act.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) Authorization of the Indenture. The Indenture has been duly
authorized by the Company, duly qualified under the 1939 Act and duly
executed and delivered by the Company and (assuming the due authorization,
execution and delivery by the Trustee) will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(x) Authorization of the Securities. The Securities have been duly
authorized by the Company for issuance and sale to the Underwriter pursuant
to this Agreement and, at the Closing Time, will have been duly executed by
the Company and, when authenticated by the Trustee in the manner provided
for in the Indenture and delivered
7
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xi) Authorization of the Forward Purchase Contract. The Forward
Purchase Contract has been duly authorized by the Company and the ML&Co.
Subsidiary and, at the Closing Time, will have been duly executed and
delivered by the Company and the ML&Co. Subsidiary and (assuming the due
authorization, execution and delivery by the Contracting Stockholder) will
constitute a valid and binding agreement of the Company and the ML&Co.
Subsidiary, enforceable against the Company and the ML&Co. Subsidiary in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(xii) Description of Securities, Indenture and Forward Purchase
Contract. The Securities, the Indenture and the Forward Purchase Contract
will conform in all material respects to the respective statements relating
thereto contained in the ML&Co. Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the ML&Co. Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and (A) the execution, delivery and
performance by the Company of this Agreement, the Indenture, the Securities
and the Forward Purchase Contract and the consummation of the transactions
contemplated herein, therein and in the ML&Co. Registration Statement
(including the issuance and sale of the Securities and the delivery of
shares of CIBER Common Stock pursuant thereto, the consummation of the
Forward Purchase and the use of the proceeds from the sale of the
Securities as described in the ML&Co. Prospectus under the caption
"Supplemental Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture, the Securities and the
Forward Purchase Contract and (B) the execution, delivery and performance
by the ML&Co.
8
Subsidiary of the Forward Purchase Contract and the consummation of the
transactions contemplated therein and compliance by the ML&Co.
Subsidiary with its obligations under the Forward Purchase Contract have
been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary or, to the
best of the Company's knowledge, any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness of the Company or any subsidiary (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of
the Company, is imminent which may reasonably be expected to result in a
Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the ML&Co. Registration
Statement (other than as disclosed therein), or which might, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, or which might, individually or in the aggregate, reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement, the Indenture or the Forward Purchase Contract (including the
issuance and sale of the Securities and the delivery of shares of CIBER
Common Stock pursuant thereto and the consummation of the Forward Purchase)
or the performance by the Company of its obligations hereunder or
thereunder or the performance by the ML&Co. Subsidiary of its obligations
under the Forward Purchase Contract; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the ML&Co. Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xvi) Exhibits. There are no contracts or documents which are of
a character required to be described in the ML&Co. Registration Statement,
the ML&Co. Prospectus
9
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described or filed as required.
(xvii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
trademarks, service marks, trade names and other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xviii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required (A) for the performance by the Company of its
obligations under this Agreement or the Forward Purchase Contract or the
consummation by the Company of the transactions contemplated herein or
therein (including the issuance and sale of the Securities and the delivery
of shares of CIBER Common Stock pursuant thereto and the consummation of
the Forward Purchase) or for the due execution, delivery or performance of
the Indenture by the Company or (B) for the performance by the ML&Co.
Subsidiary of its obligations under the Forward Purchase Contract or the
consummation by the ML&Co. Subsidiary of the transactions contemplated
therein, except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws and
except for the qualification of the Indenture under the 1939 Act.
(xix) Possession of Licenses and Permits. The Company and the
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good
10
title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are
described in the ML&Co. Prospectus or (B) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the ML&Co. Prospectus, are in
full force and effect, and neither the Company nor any subsidiary has
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiary to the continued possession
of the leased or subleased premises under any such lease or sublease.
(b) Representations and Warranties by the Contracting Stockholder. The
Contracting Stockholder represents and warrants to each of the Company and the
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agrees with each of the Company and the Underwriter, as
follows:
(i) Right, Power and Capacity. The Contracting Stockholder has the
full right, power and capacity to enter into and perform his obligations
under this Agreement, the Forward Purchase Contract and the Security and
Pledge Agreement, including, without limitation, to pledge and assign the
shares of CIBER Common Stock to be pledged and assigned by the Contracting
Stockholder pursuant to the Security and Pledge Agreement, and to sell,
transfer and deliver the Contract Consideration (as defined in the Forward
Purchase Contract) to be sold by the Contracting Stockholder pursuant to
the Forward Purchase Contract.
(ii) Execution and Delivery of Agreements. This Agreement, the Forward
Purchase Contract and the Security and Pledge Agreement have been duly
executed and delivered by the Contracting Stockholder and (assuming the due
authorization, execution and delivery by the other parties thereto) the
Forward Purchase Contract and the Security and Pledge Agreement constitute
valid and binding agreements of the Contracting Stockholder, enforceable
against the Contracting Stockholder in accordance with their respective
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement hereof
and thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(iii) Delivery of Contract Consideration. (a) At January 26, 1998,
the Bobby G. Stevenson Revocable Trust is the registered owner of the
shares of CIBER Common Stock to be delivered, pledged and assigned by the
Contracting Stockholder pursuant to the Security and Pledge Agreement, (b)
and the Contracting Stockholder has all rights,
11
title and interest in and to the shares of CIBER Common Stock to be
delivered, pledged and assigned by the Contracting Stockholder pursuant
to the Security and Pledge Agreement, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity and (c)
to the extent the Contracting Stockholder elects to deliver the
Contract Consideration at Closing (as defined in the Forward Purchase
Contract), upon delivery of such Contract Consideration against payment
therefor pursuant to the Forward Purchase Contract, assuming the ML&Co.
Subsidiary purchased for value and without notice of any adverse claim,
the ML&Co. Subsidiary will have acquired all rights, title and interest
in and to such Contract Consideration, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. The
sale, transfer and delivery of the Contract Consideration by the
Contracting Stockholder as contemplated by this Agreement is not, and
at the time of delivery of such Contract Consideration will not be,
subject to any right of first refusal or similar rights of any person
pursuant to any contract to which the Contracting Stockholder or any
Affiliate of the Contracting Stockholder is a party or by which any of
them is bound. As used herein, "Affiliate" means, as to the
Contracting Stockholder, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with the
Contracting Stockholder. As used herein, "control" (including the terms
"controlled by" or "under common control with") means, as to any
Person, the possession, direct or indirect, of the power to vote ten
percent or more of the securities having ordinary voting power for the
election of directors of such Person or to direct or cause the
direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise. As
used herein, "Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency or
instrumentality thereof.
(iv) Absence of Further Requirements. No declaration or filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the execution, delivery or
performance by the Contracting Stockholder of this Agreement, the
Forward Purchase Contract or the Security and Pledge Agreement or the
consummation by the Contracting Stockholder of the transactions
contemplated herein or therein, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or the Commodities Exchange Act, the Commodities Futures
Trading Commission Act of 1974, the Commodity Distribution Reform Act
and similar state and federal laws, rules and regulations governing the
issuance, sale and distribution of commodities (the "Commodities Laws")
or state securities laws.
(v) Absence of Defaults or Conflicts. The execution, delivery and
performance by the Contracting Stockholder of this Agreement, the
Forward Purchase Agreement and the Security and Pledge Agreement and
the consummation by the Contracting Stockholder
12
of the transactions contemplated herein and therein and compliance by
the Contracting Stockholder with his obligations hereunder and
thereunder do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach
of, or default or Contracting Stockholder Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Contracting Stockholder or any
Affiliate of the Contracting Stockholder pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Contracting
Stockholder or any Affiliate of the Contracting Stockholder is a party
or by which he or any of them is bound, or to which any of the property
or assets of the Contracting Stockholder or any Affiliate of the
Contracting Stockholder is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not, singly or
in the aggregate, materially and adversely affect the ability of the
Contracting Stockholder to perform his obligations under this
Agreement), nor will such action result in any violation of the
provisions of the 1998 Bobby G. Stevenson Revocable Trust or any
applicable law, statute, rule or regulation of any government or
government instrumentality having jurisdiction over the Contracting
Stockholder or any Affiliate of the Contracting Stockholder or any of
their assets, properties or operations (other than any Commodities Laws
or any state securities or "blue sky" law, statute, rule or regulation,
as to which no representation and warranty is made), or any applicable
judgment, order, writ or decree of any government, government
instrumentality or domestic court having jurisdiction over the
Contracting Stockholder or any Affiliate of the Contracting Stockholder
or any of their assets, properties or operations (except in all cases
for violations that would not, singly or in the aggregate, materially
and adversely affect the ability of the Contracting Stockholder to
perform his obligations under this Agreement, the Forward Purchase
Contract or the Security and Pledge Agreement). As used herein,
"Contracting Stockholder Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any Person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Contracting Stockholder or any Affiliate of
the Contracting Stockholder.
(vi) CIBER Registration Statement and Prospectus. The CIBER
Registration Statement, any CIBER Rule 462(b) Registration Statement or
any post-effective amendments thereto, at the respective times the CIBER
Registration Statement, any CIBER Rule 462(b) Registration Statement or
any post-effective amendments thereto became effective, did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The CIBER Prospectus or any amendment or
supplement thereto, at the time the CIBER Prospectus was issued, at the
time any such amended or supplemented prospectus was issued or at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), did not and will not include an untrue statement of a
material fact and did not and will not 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) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriter shall be
deemed a representation and warranty by the Company to the Underwriter as to
the matters covered thereby. Any certificate signed by or on behalf of the
Contracting Stockholder delivered to the Underwriter or the
13
Company shall be deemed a representation and warranty by the Contracting
Stockholder to the Underwriter or the Company, as the case may be, as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriter, and the Underwriter
agrees to purchase from the Company, at the price per STRYPES set forth in
Schedule A, the Initial Securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriter to purchase up to an additional 262,500 STRYPES at the price per
STRYPES set forth in Schedule A. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by the Underwriter to the Company setting forth the number of Option
Securities as to which the Underwriter is then exercising the option and the
time and date of payment and delivery for such Option Securities. Any such
time and date of delivery (a "Date of Delivery") shall be determined by the
Underwriter, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Brown & Wood llp, One World Trade Center, New York, New York 10048, or at
such other place as shall be agreed upon by the Underwriter and the Company,
at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date
hereof, or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriter and the Company (such time and
date of payment and delivery being herein called "Closing Time"). In
addition, in the event that any or all of the Option Securities are purchased
by the Underwriter, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriter
and the Company, on each Date of Delivery as specified in the notice from the
Underwriter to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Underwriter of certificates for the Securities to be purchased by it.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations
and registered in such names as the Underwriter may request in writing at
least one full business day before the Closing Time or the relevant Date of
Delivery, as the case may be. The certificates for the Initial Securities
and the Option Securities, if any, will be made available for examination and
packaging by the
14
Underwriter in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants.
(a) Covenants of the Company. The Company covenants with the
Underwriter as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(a)(ii), will comply with the
requirements of Rule 434, if applicable, and will notify the Underwriter
immediately, and confirm the notice in writing, (A) when any
post-effective amendment to the ML&Co. Registration Statement shall
become effective, or any supplement to the ML&Co. Prospectus or any
amended ML&Co. Prospectus shall have been filed, (B) of the receipt of
any comments from the Commission, (C) of any request by the Commission
for any amendment to the ML&Co. Registration Statement or any amendment
or supplement to the ML&Co. Prospectus or for additional information,
and (D) of the issuance by the Commission of any stop order suspending
the effectiveness of the ML&Co. Registration Statement or of any order
preventing or suspending the use of any ML&Co. preliminary prospectus,
or of the suspension of the qualification of the Securities for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Company will give the Underwriter
notice of its intention to file or prepare any amendment to the ML&Co.
Registration Statement (including any filing under Rule 462(b)), any
ML&Co. Term Sheet or any amendment, supplement or revision to either the
prospectus relating to the offering of the Securities included in the
ML&Co. Registration Statement at the time it became effective or to the
ML&Co. Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Underwriter or counsel for the Underwriter shall reasonably
object.
(iii) Delivery of ML&Co. Registration Statements. The Company
has furnished or will deliver to the Underwriter, without charge, signed
copies of the ML&Co. Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed
to be incorporated by reference therein) and signed copies of all
consents and certificates of experts. If applicable, the copies of the
ML&Co. Registration Statement and each amendment thereto furnished to
the Underwriter will be identical to the
15
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(iv) Delivery of ML&Co. Prospectuses. The Company has delivered to
the Underwriter, without charge, as many copies of each ML&Co.
preliminary prospectus as the Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to the Underwriter, without
charge, during the period when the ML&Co. Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the ML&Co. Prospectus (as amended or supplemented) as the Underwriter
may reasonably request. If applicable, the ML&Co. Prospectus and any
amendments or supplements thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(v) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the ML&Co. Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Underwriter or for the
Company, to amend the ML&Co. Registration Statement or amend or
supplement the ML&Co. Prospectus in order that the ML&Co. Prospectus
will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion
of either such counsel, at any such time to amend the ML&Co.
Registration Statement or amend or supplement the ML&Co. Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(a)(ii), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
ML&Co. Registration Statement or the ML&Co. Prospectus comply with such
requirements, and the Company will furnish to the Underwriter such
number of copies of such amendment or supplement as the Underwriter may
reasonably request.
(vi) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriter, to qualify the Securities
for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriter
may designate and to maintain such qualifications in effect for a period
of not less than one year from the later of the effective date of the
ML&Co. Registration Statement and any ML&Co. Rule 462(b) Registration
Statement; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. In each
16
jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period
of not less than one year from the effective date of the ML&Co.
Registration Statement and any ML&Co. Rule 462(b) Registration Statement.
(vii) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the ML&Co. Prospectus under "Supplemental Use of Proceeds."
(ix) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(x) Reporting Requirements. The Company, during the period when the
ML&Co. Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
(b) Covenants of the Contracting Stockholder. The Contracting
Stockholder covenants with the Underwriter and the Company as follows:
(i) Restriction on Sale of Securities. During a period of 90 days
from the date of the CIBER Prospectus, the Contracting Stockholder will
not, without the prior written consent of the Underwriter, (x) directly
or indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of
any shares of CIBER Common Stock or any securities convertible into or
exercisable or exchangeable for CIBER Common Stock or cause to be filed
any registration statement under the 1933 Act with respect to any of the
foregoing or (y) enter into any swap or any other agreement or any
transaction that transfers to another, in whole or in part, directly or
indirectly, any of the economic consequences of ownership of CIBER
Common Stock, whether or not any such transaction described in clause
(x) or (y) above is to be settled by delivery of CIBER Common Stock or
such other securities, in cash or otherwise. The foregoing sentence
shall not apply to the execution and delivery by the Contracting
Stockholder of the Forward Purchase Contract or the consummation by the
Contracting Stockholder of the transactions contemplated therein.
(ii) Purpose Statement. At or prior to Closing Time, the
Contracting Stockholder will deliver to the ML&Co. Subsidiary a duly
executed purpose statement on Form F. R. G-3 of the Board of Governors
of the Federal Reserve System.
17
SECTION 4. Payment of Expenses.
(a) Expenses Payable by the Company. The Company will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the ML&Co. Registration
Statement (including financial statements and exhibits) as originally filed
and of each amendment thereto, (ii) the preparation, printing and delivery to
the Underwriter of this Agreement, the Indenture, the Forward Purchase
Contract and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to
the Underwriter, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(a)(vi) hereof,
including filing fees and the reasonable fees and disbursements of the
Company's counsel in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the
printing and delivery to the Underwriter of copies of each ML&Co. preliminary
prospectus, any ML&Co. Term Sheets and of the ML&Co. Prospectus and any
amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriter of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (ix) any fees payable in connection with the
rating of the Securities, (x) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriter in connection with, the
review by the National Association of Securities Dealers, Inc. (the "NASD")
of the terms of the sale of the Securities and (xi) the fees and expenses
incurred in connection with the listing of the Securities on the New York
Stock Exchange.
(b) Expenses Payable by the Contracting Stockholder. The Contracting
Stockholder will pay all expenses incident to the performance of his
obligations under this Agreement, including the fees and disbursements of his
counsel and advisors.
(c) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter.
(d) Allocation of Expenses. The provisions of this Section 4 shall not
affect any separate agreement that the Contracting Stockholder may make or
may have made for the sharing of the costs and expenses to be borne by it
pursuant to this Section 4.
SECTION 5. Conditions.
(a) Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company and the Contracting Stockholder contained in
Sections 1(a) and 1(b) hereof, respectively, to the accuracy of the
representations and warranties of CIBER contained in the Registration
Agreement, to the accuracy of the statements in certificates of any officer
of the Company or CIBER or of the Contracting Stockholder delivered pursuant
to the provisions hereof, to the
18
performance by the Company and the Contracting Stockholder of their
respective covenants and other obligations hereunder, to the performance by
CIBER of its covenants and other obligations under the Registration
Agreement, and to the following further conditions:
(1) Effectiveness of ML&Co. Registration Statement. The ML&Co.
Registration Statement, including any ML&Co. Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the ML&Co. Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriter. A prospectus
containing the public offering price of the Securities, a description of
the Securities, the specific method of distribution and similar matters
(or, if the Company has elected to rely upon Rule 434, an ML&Co. Term
Sheet including the Rule 434 Information) shall have been filed with the
Commission in accordance with Rule 424(b).
(2) Effectiveness of CIBER Registration Statement. The CIBER
Registration Statement, including any CIBER Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the CIBER Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriter.
(3) Opinion of Counsel for the Company. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of
Closing Time, of Brown & Wood llp, counsel for the Company, in form and
substance satisfactory to the Underwriter, to the effect set forth in
Exhibit A hereto and to such further effect as the Underwriter may
reasonably request. In giving such opinion, counsel may rely, as to all
matters governed by laws other than the law of the State of New York,
the General Corporation Law of the State of Delaware and the federal law
of the United States, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of public officials.
(4) Opinion of Counsel for the Underwriter. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of
Closing Time, of Wilson, Sonsini, Goodrich & Rosati, Professional
Corporation, counsel for the Underwriter, in form and substance
satisfactory to the Underwriter, to the effect set forth in Exhibit B
hereto and to such further effect as the Underwriter may reasonably
request. In giving such opinion, counsel may rely, as to all matters
governed by laws other than the law of the State of California, the
General Corporation Law of the State of Delaware and the federal law of
the United States, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of CIBER and its subsidiaries and
certificates of public officials.
19
(5) Opinion of Counsel for CIBER and the Contracting Stockholder.
At Closing Time, the Underwriter shall have received the favorable
opinion, dated as of Closing Time, of Davis, Graham & Stubbs LLP,
counsel for CIBER and the Contracting Stockholder, in form and substance
satisfactory to counsel for the Underwriter, to the effect set forth in
Exhibit C hereto and to such further effect as the Underwriter may
reasonably request. In giving such opinion, counsel may rely, as to all
matters governed by laws other than the law of the State of Colorado,
General Corporation Law of the State of Delaware and the federal law of
the United States, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of CIBER and its subsidiaries,
certificates of the Contracting Stockholder and certificates of public
officials.
(6) Company Officers' Certificate. At Closing Time, there shall
not have been, since the date hereof or since the respective dates as of
which information is given in the ML&Co. Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop
order suspending the effectiveness of the ML&Co. Registration Statement
has been issued and no proceedings for that purpose have been instituted
or are pending or are contemplated by the Commission.
(7) CIBER Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the CIBER Prospectus, any material adverse
change in the business, financial condition, results of operations or
earnings of CIBER and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, and the Underwriter shall
have received a certificate of the Chief Executive Officer or an
Executive Vice President of CIBER and of the chief financial or chief
accounting officer of CIBER, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties of CIBER contained in Section 1(a) of the
Registration Agreement are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) CIBER
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time pursuant
to the Registration Agreement, and (iv) no stop order suspending the
effectiveness of the CIBER Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
20
(8) Certificate of the Contracting Stockholder. At Closing Time,
the Underwriter shall have received a certificate of the Contracting
Stockholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of the Contracting Stockholder contained
in Section 1(b) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time and (ii) the
Contracting Stockholder has complied with all agreements and satisfied
all conditions on his part to be performed or satisfied at or prior to
Closing Time pursuant to this Agreement and the transactions
contemplated hereby.
(9) Company Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Underwriter shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance
satisfactory to the Underwriter, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the ML&Co. Registration Statement and
the ML&Co. Prospectus.
(10) CIBER Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Underwriter shall have received from
KPMG Peat Marwick LLP a letter dated such date, in form and substance
satisfactory to the Underwriter, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the CIBER Registration Statement and
the CIBER Prospectus.
(11) Company Accountant's Bring-down Comfort Letter. At Closing
Time, the Underwriter shall have received from Deloitte & Touche LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to Section
5(a)(9) hereof, except that the "specified date" referred to shall be a
date not more than three business days prior to Closing Time.
(12) CIBER Accountant's Bring-down Comfort Letter. At Closing
Time, the Underwriter shall have received from KPMG Peat Marwick LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to Section
5(a)(10) hereof, except that the "specified date" referred to shall be a
date not more than three business days prior to Closing Time.
(13) Maintenance of Rating. Since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to
any of the Company's securities by any "nationally recognized
statistical rating agency," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under
surveillance or review its rating of any of the Company's securities.
(14) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
21
(15) No Objection. The NASD shall not have raised any objection
with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(16) Lock-up Agreements. At the date of this Agreement, the
Underwriter shall have received an agreement substantially in the form of
Exhibit D hereto signed by each of the persons and entities listed on
Schedule B hereto.
(17) Conditions to Purchase of Option Securities. In the event that
the Underwriter exercises its option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Company and the Contracting Stockholder contained
herein, the representations and warranties of CIBER contained in the
Registration Agreement and the statements in any certificates furnished by
the Company, CIBER or the Contracting Stockholder hereunder shall be true
and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Underwriter shall have received:
(A) Company Officers' Certificate. A certificate, dated such
Date of Delivery, of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time pursuant to
Section 5(a)(6) hereof is true and correct as of such Date of
Delivery.
(B) CIBER Officers' Certificate. A certificate, dated such Date
of Delivery, of the Chief Executive Officer or an Executive Vice
President of CIBER and of the chief financial or chief accounting
officer of CIBER confirming that the certificate delivered at Closing
Time pursuant to Section 5(a)(7) hereof is true and correct as of such
Date of Delivery.
(C) Certificate of the Contracting Stockholder. A certificate,
dated such Date of Delivery, of the Contracting Stockholder confirming
that the certificate delivered at Closing Time pursuant to Section
5(a)(8) hereof is true and correct as of such Date of Delivery.
(D) Opinion of Counsel for the Company. The favorable opinion of
Brown & Wood llp, counsel for the Company, in form and substance
satisfactory to the Underwriter, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(a)(3) hereof.
(E) Opinion of Counsel for the Underwriter. The favorable
opinion of Wilson, Sonsini, Goodrich & Rosati, Professional
Corporation, counsel for the Underwriter, in form and substance
satisfactory to the Underwriter, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(a)(4) hereof.
22
(F) Opinion of Counsel for CIBER and the Contracting
Stockholder. The favorable opinion of Davis, Graham & Stubbs LLP,
counsel for CIBER, in form and substance satisfactory to counsel
for the Underwriter, dated such Date of Delivery, to the same
effect as the opinion required by Section 5(a)(5) hereof.
(G) Company Accountant's Bring-down Comfort Letter. A letter
from Deloitte & Touche LLP, in form and substance satisfactory to the
Underwriter and dated such Date of Delivery, substantially the same in
form and substance as the letter furnished to the Underwriter pursuant
to Section 5(a)(11) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(H) CIBER Accountant's Bring-down Comfort Letter. A Letter from
KPMG Peat Marwick LLP, in form and substance satisfactory to the
Underwriter and dated such Date of Delivery, substantially the same in
form and substance as the letter furnished to the Underwriter pursuant
to Section 5(a)(12) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(18) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriter shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
contained herein or in the Registration Agreement; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
(b) Conditions of the Company's Obligations. The obligations of the
Company hereunder are subject to the accuracy of the representations and
warranties of the Contracting Stockholder contained in Section 1(b) hereof, to
the accuracy of the representations and warranties of CIBER contained in the
Registration Agreement, to the accuracy of the statements in certificates of any
officer of CIBER or of the Contracting Stockholder delivered pursuant to the
provisions hereof, to the performance by the Contracting Stockholder of his
covenants and other obligations hereunder, to the performance by CIBER of its
covenants and other obligations under the Registration Agreement, and to the
following further conditions:
(1) Effectiveness of CIBER Registration Statement. The CIBER
Registration Statement, including any CIBER Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the CIBER Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Company.
23
(2) Opinion of Counsel for the Company. At Closing Time, the Company
shall have received the favorable opinion, dated as of Closing Time, of
Brown & Wood llp, counsel for the Company, to the same effect as the
opinion required by Section 5(a)(3) hereof.
(3) Opinion of Counsel for the Underwriter. At Closing Time, the
Company shall have received the favorable opinion, dated as of Closing
Time, of Wilson, Sonsini, Goodrich & Rosati, Professional Corporation,
counsel for the Underwriter, to the same effect as the opinion required by
Section 5(a)(4) hereof.
(4) Opinion of Counsel for CIBER and the Contracting Stockholder. At
Closing Time, the Company shall have received the favorable opinion, dated
as of Closing Time, of Davis, Graham & Stubbs LLP, counsel for CIBER and
the Contracting Stockholder, to the same effect as the opinion required by
Section 5(a)(5) hereof.
(5) CIBER Officers' Certificate. At Closing Time, the Company shall
have received a certificate of the Chief Executive Officer or an Executive
Vice President of CIBER and of the chief financial or chief accounting
officer of CIBER, dated as of Closing Time, to the same effect as the
certificate delivered to the Underwriter pursuant to Section 5(a)(7)
hereof.
(6) Certificate of the Contracting Stockholder. At Closing Time, the
Company shall have received a certificate of the Contracting Stockholder,
dated as of Closing Time, to the same effect as the certificate delivered
to the Underwriter pursuant to Section 5(a)(8) hereof.
(7) CIBER Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Company shall have received from KPMG Peat Marwick
LLP a letter dated such date, in form and substance satisfactory to the
Company, substantially the same in form and substance as the letter
delivered to the Underwriter pursuant to Section 5(a)(10) hereof.
(8) CIBER Accountant's Bring-down Comfort Letter. At Closing Time,
the Company shall have received from KPMG Peat Marwick LLP a letter, dated
as of Closing Time, in form and substance satisfactory to the Company,
substantially the same in form and substance as the letter delivered to the
Underwriter pursuant to Section 5(a)(12) hereof.
(9) Conditions to Sale of Option Securities. In the event that the
Underwriter exercises its option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Contracting Stockholder contained herein, the
representations and warranties of CIBER contained in the Registration
Agreement and the statements in any certificates furnished by CIBER or the
Contracting Stockholder hereunder shall be true and correct as of each Date
of Delivery and, at the relevant Date of Delivery, the Company shall have
received:
24
(A) CIBER Officers' Certificate. A certificate, dated such Date
of Delivery, of the Chief Executive Officer or an Executive Vice
President of CIBER and of the chief financial or chief accounting
officer of CIBER confirming that the certificate delivered at Closing
Time pursuant to Section 5(b)(5) hereof is true and correct as of such
Date of Delivery.
(B) Certificate of the Contracting Stockholder. A certificate,
dated such Date of Delivery, of the Contracting Stockholder confirming
that the certificate delivered at Closing Time pursuant to Section
5(b)(6) hereof is true and correct as of such Date of Delivery.
(C) Opinion of Counsel for the Company. The favorable opinion,
dated such Date of Delivery, of Brown & Wood llp, counsel for the
Company, to the same effect as the opinion required by
Section 5(a)(17)(D) hereof.
(D) Opinion of Counsel for the Underwriter. The favorable
opinion, dated such Date of Delivery, of Wilson, Sonsini, Goodrich &
Rosati, Professional Corporation, counsel for the Underwriter, to the
same effect as the opinion required by Section 5(a)(17)(E) hereof.
(E) Opinion of Counsel for CIBER and the Contracting
Stockholder. The favorable opinion, dated such Date of Delivery, of
Davis, Graham & Stubbs LLP, counsel for CIBER and the Contracting
Stockholder, to the same effect as the opinion required by Section
5(a)(17)(F) hereof.
(F) CIBER Accountant's Bring-down Comfort Letter. A Letter from
KPMG Peat Marwick LLP, in form and substance satisfactory to the
Company and dated such Date of Delivery, substantially the same in
form and substance as the letter furnished to the Underwriter pursuant
to Section 5(a)(17)(H) hereof.
(c) Termination of Agreement. If any condition specified in subsection
(a) of this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase of
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the Underwriter to purchase the relevant Option Securities, may
be terminated by the Underwriter by notice to the Company and the Contracting
Stockholder at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
If any condition specified in subsection (b) of this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case
of any condition to the sale of Option Securities on a Date of Delivery which is
after the Closing Time, the obligations of the Company to sell the relevant
Option Securities, may be terminated by the Company by notice to the Underwriter
and the Contracting Stockholder at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
25
SECTION 6. Indemnification.
(a) Indemnification of the Underwriter by the Company. The Company agrees
to indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) subject to subsection (d) below, against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the ML&Co. Registration Statement (or any amendment thereto),
including the Rule 434 Information, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any ML&Co. preliminary prospectus or the ML&Co. Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, referred to under (i) above; provided
that (subject to Section 6(e) below) any such settlement is effected with
the written consent of the Company; and
(iii) subject to subsection (d) below, against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel
chosen by the Underwriter), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, referred to under (i) above, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the ML&Co. Registration Statement (or any
amendment thereto), including the Rule 434 Information, if applicable, or any
ML&Co. preliminary prospectus or the ML&Co. Prospectus (or any amendment or
supplement thereto).
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who controls an underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and who,
at the date of this Agreement, is a director
26
or officer of the Company or controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, such indemnity
agreement is subject to the undertaking of the Company in the ML&Co.
Registration Statement under Item 17 thereof.
(b) INDEMNIFICATION OF THE UNDERWRITER AND THE COMPANY BY THE CONTRACTING
STOCKHOLDER. The Contracting Stockholder agrees to indemnify and hold harmless
(1) the Underwriter and each person, if any, who controls the Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and (2)
the Company and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) subject to subsection (d) below, against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the CIBER Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any CIBER preliminary prospectus
or the CIBER Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, referred to under (i) above; provided
that (subject to Section 6(e) below) any such settlement is effected with
the written consent of the Contracting Stockholder; and
(iii) subject to subsection (d) below, against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel
chosen by the Underwriter or the Company, as the case may be), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
referred to under (i) above, to the extent that any such expense is not
paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with (A) written information furnished to CIBER by the
Underwriter expressly for use in the CIBER Registration Statement (or any
amendment thereto), or any CIBER preliminary prospectus or the CIBER Prospectus
(or any amendment or supplement thereto) or (B) written information furnished to
CIBER by the Company expressly for use in the CIBER Registration Statement (or
any amendment thereto), or any CIBER preliminary prospectus or the CIBER
Prospectus (or any
27
amendment or supplement thereto); PROVIDED, FURTHER, HOWEVER, that the
foregoing indemnity with respect to any untrue statement contained in or
omission from a CIBER preliminary prospectus shall not inure to the benefit
of the Underwriter (or to the benefit any person controlling the Underwriter)
if such untrue statement contained in or omission from the CIBER preliminary
prospectus was eliminated or remedied in the CIBER Prospectus (as amended or
supplemented if CIBER shall have furnished to the Underwriter any amendments
or supplements thereto) and, if required by law, a copy of the CIBER
Prospectus (as amended or supplemented if CIBER shall have furnished to the
Underwriter any amendments or supplements thereto) shall not have been
furnished to such person asserting any such loss, liability, claim, damage or
expense at or prior to the written confirmation of the sale of the Securities
which are the subject thereof to such person.
(c) INDEMNIFICATION OF THE COMPANY AND THE CONTRACTING STOCKHOLDER. The
Underwriter agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the ML&Co. Registration Statement, each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act and the Contracting Stockholder against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the ML&Co. Registration Statement (or any amendment thereto), including
the Rule 434 Information, if applicable, or any ML&Co. preliminary prospectus or
the ML&Co. Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the ML&Co. Registration Statement (or any
amendment thereto) or such ML&Co. preliminary prospectus or the ML&Co.
Prospectus (or any amendment or supplement thereto).
(d) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand commenced or asserted against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. Upon receipt of such notice, the
indemnifying party, severally or jointly with any other indemnifying parties
receiving such notice, shall retain counsel reasonably satisfactory to such
indemnified party to represent such indemnified party and any others the
indemnifying party may designate in respect of such suit, action, proceeding,
claim or demand. In respect of any such suit, action, proceeding, claim or
demand, an indemnified party shall have the right to retain its own counsel, but
the fees and disbursements of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying parties and such indemnified party
shall have mutually agreed to the contrary, (ii) the indemnifying parties have
failed within a reasonable time to retain counsel reasonably satisfactory to
such indemnified party or (iii) the named parties in any such suit, action or
proceeding (including any impleaded parties) include both indemnifying parties
and indemnified parties and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel
28
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) and 6(b)(ii) effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement for all such fees and expenses of counsel, other than such fees and
expenses of counsel that are being contested in good faith by an indemnifying
party.
SECTION 7. CONTRIBUTION.
(a) If the indemnification provided for in Sections 6(a) and 6(c) is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then the Company and the Underwriter shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriter on the other hand in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriter, in
each case as set forth on the cover of the ML&Co. Prospectus, or, if Rule 434 is
used, the corresponding location on the ML&Co. Term Sheet, bear to the aggregate
initial public offering price of the Securities as set forth on such cover. The
relative fault of the Company on the one hand and the Underwriter
29
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding the provisions of this Section 7(a), the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7(a) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7(a). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7(a) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7(a), each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the ML&Co.
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
(b) If the indemnification provided for in Section 6(b) hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then the Contracting Stockholder on the one hand and the Underwriter
and the Company on the other hand shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Contracting Stockholder on the one
hand and by the Underwriter and the Company on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Contracting Stockholder on the one hand
and of the Underwriter and the Company on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant
30
equitable considerations. The relative benefits received from the offering of
the Securities pursuant to this Agreement shall be deemed to be such that the
Underwriter and the Company shall be responsible for that portion of the
aggregate amount of such losses, liabilities, claims, damages and expenses
represented by the percentage that the total underwriting discount received
by the Underwriter, as set forth on the cover of the ML&Co. Prospectus, or,
if Rule 434 is used, the corresponding location on the ML&Co. Term Sheet,
bears to the aggregate initial public offering price of the Securities as set
forth on such cover and the Contracting Stockholder shall be responsible for
the balance. The relative fault of the Contracting Stockholder on the one
hand and the Underwriter and the Company on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Contracting
Stockholder or CIBER on the one hand or by the Underwriter or the Company on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 7(b), the Underwriter and
the Company shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by the
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriter and the Company have otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
The Contracting Stockholder, the Underwriter and the Company agree that it
would not be just and equitable if contribution pursuant to this Section 7(b)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7(b). The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 7(b) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7(b), each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or CIBER or of the
Contracting Stockholder submitted pursuant hereto,
31
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or controlling person,
or by or on behalf of the Company or the Contracting Stockholder, and shall
survive delivery of the Securities to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriter may terminate this Agreement,
by notice to the Company and the Contracting Stockholder, at any time at or
prior to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
ML&Co. Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has been, since the
time of execution of this Agreement, or since the respective dates as of which
information is given in the CIBER Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of CIBER and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (iii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriter,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iv) if trading in any securities of the Company or in the
CIBER Common Stock has been suspended or limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority, or
(v) if a banking moratorium has been declared by either federal or New York
authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6, 7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to it at 3300 Hillview Avenue, Suite 150, Palo
Alto, California 94304, attention of Steven F. Strandberg; notices to the
Company shall be directed to it at 100 Church St., 12th Floor, New York, New
York 10007, attention of the Secretary, with a copy to the Treasurer at World
Financial Center, South Tower, New York, New York 10080-6105; and notices to the
Contracting Stockholder shall be directed to him c/o CIBER, Inc., 5251 DTC
Parkway, Suite 1400, Englewood, Colorado 80111.
32
SECTION 11. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon each of the Underwriter, the Company and the Contracting
Stockholder and their respective successors (including, in the case of the
Contracting Stockholder, heirs, distributees, legatees, next of kin, executors,
administrators and legal and personal representatives). Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors (including, in the case of the Contracting Stockholder, heirs,
distributees, legatees, next of kin, executors, administrators and legal and
personal representatives) and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors (including, in the case of the
Contracting Stockholder, heirs, distributees, legatees, next of kin, executors,
administrators and legal and personal representatives), and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from the Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
33
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriter, the Company and the Contracting Stockholder in accordance with
its terms.
Very truly yours,
MERRILL LYNCH & CO., INC.
By
---------------------------------
Name: George J. Nolan
Title: Manager, Capital Financing
----------------------------------------
Bobby G. Stevenson, individually
and as settlor, beneficiary and trustee
of the 1998 Bobby G. Stevenson Revocable Trust
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By ------------------------------------
Authorized Signatory
34
SCHEDULE A
MERRILL LYNCH & CO., INC.
7 7/8% STRYPES (-SM-)DUE February 1, 2001
1. The initial public offering price of the Securities shall be
$54.125 per STRYPES.
2. The purchase price for the Securities to be paid by the
Underwriter shall be $52.505 per STRYPES, being an amount equal to the
initial public offering price set forth above less $1.62 per STRYPES.
3. The "Downside Protection Threshold Price" with respect to the
Securities shall be $51.4188.
4. The "Initial Appreciation Cap" with respect to the Securities
shall be $70.3625.
5. The "Threshold Appreciation Price" with respect to the Securities
shall be $91.4713.
- ---------------
(-SM-) Service mark of Merrill Lynch & Co., Inc.
Sch A-1
SCHEDULE B
Mac J. Slingerland
Richard A. Montoni
Lawrence D. Greenwood
William E. Storrison
James A. Rutherford
James C. Spira
Roy L. Burger
Sch B-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(3)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
ML&Co. Prospectus and to enter into and perform its obligations under the
Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(iv) Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the ML&Co. Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in the
State of New York; all of the issued and outstanding capital stock of
MLPF&S has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of MLPF&S was issued in violation of
the preemptive or similar rights of any securityholder of MLPF&S.
(v) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(vii) The Securities are in the form contemplated by the
Indenture, have been duly authorized by the Company and, assuming that the
Securities have been duly authenticated
A-1
by the Trustee in the manner described in its certificate delivered to you
today (which fact such counsel need not determine by an inspection of the
Securities), the Securities have been duly executed, issued and delivered
by the Company and constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be entitled to
the benefits of the Indenture.
(viii) The Forward Purchase Contract has been duly authorized,
executed and delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the other parties thereto) constitutes a
valid and binding agreement of the Company and the ML&Co. Subsidiary,
enforceable against the Company and the ML&Co. Subsidiary in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(ix) The Indenture has been duly qualified under the 1939 Act.
(x) The Securities, the Indenture and the Forward Purchase Contract
conform in all material respects as to legal matters to the descriptions
thereof contained in the ML&Co. Prospectus.
(xi) The ML&Co. Registration Statement, including any ML&Co. Rule
462(b) Registration Statement, has been declared effective under the 1933
Act; any required filing of the ML&Co. Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending the
effectiveness of the ML&Co. Registration Statement or any ML&Co. Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
(xii) The ML&Co. Registration Statement, including any ML&Co. Rule
462(b) Registration Statement and the Rule 434 Information, as applicable,
the ML&Co. Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the ML&Co. Registration
Statement and ML&Co. Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom, and the Trustee's Statement of Eligibility on Form T-1
(the "Form T-1"), as to which we express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
A-2
(xiii) The documents incorporated by reference in the ML&Co.
Prospectus (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we express no opinion),
when they became effective or were filed with the Commission, as the case
may be, complied as to form in all material respects with the requirements
of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder.
(xiv) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, (other than under
the 1933 Act and the 1933 Act Regulations, which have been obtained, or as
may be required under the securities or blue sky laws of the various states
and except for the qualification of the Indenture under the 1939 Act, as to
which we express no opinion) is necessary or required in connection with
the due authorization, execution and delivery of the Purchase Agreement by
the Company or the due execution, delivery or performance of the Indenture
or the Forward Purchase Contract by the Company or for the offering,
issuance, sale or delivery of the Securities or for the due execution,
delivery or performance of the Forward Purchase Contract by the ML&Co.
Subsidiary.
(xv) The execution, delivery and performance by the Company of the
Purchase Agreement, the Indenture, the Securities and the Forward Purchase
Contract and the consummation of the transactions contemplated in the
Purchase Agreement, the Forward Purchase Contract and in the ML&Co.
Registration Statement (including the issuance and sale of the Securities
and the delivery of shares of CIBER Common Stock pursuant thereto, the
consummation of the Forward Purchase and the use of the proceeds from the
sale of the Securities as described in the ML&Co. Prospectus under the
caption "Supplemental Use of Proceeds") and compliance by the Company with
its obligations under the Purchase Agreement, the Indenture, the Securities
and the Forward Purchase Contract and (B) the execution, delivery and
performance by the ML&Co. Subsidiary of the Forward Purchase Contract and
the consummation by the ML&Co. Subsidiary of the transactions contemplated
therein and compliance by the ML&Co. Subsidiary with its obligations under
the Forward Purchase Contract do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined in Section
1(a)(xiii) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company or any
subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is
subject (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to us, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
A-3
We have participated in conferences with officers and representatives
of the Company, representatives of the independent accountants of the
Company, and the Underwriter at which the contents of the ML&Co.
Registration Statement and the ML&Co. Prospectus and related matters were
discussed and, although we are not passing upon or assuming responsibility
for the accuracy, completeness or fairness of the statements contained or
incorporated by reference in said Registration Statement and Prospectus and
have made no independent check or verification thereof, on the basis of the
foregoing, nothing has come to our attention that would lead us to believe
that the ML&Co. Registration Statement or any amendment thereto, including
the Rule 434 Information (if applicable), (except for financial statements
and schedules and other financial data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which we
make no statement), at the time such ML&Co. Registration Statement or any
such amendment became effective or at the date of the Purchase Agreement,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the ML&Co. Prospectus or any
amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we make no statement), at the
time the ML&Co. Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
A-4
Exhibit B
FORM OF OPINION OF UNDERWRITER'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(4)
(i) CIBER has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Registration Agreement has been duly authorized, executed
and delivered by CIBER.
(iii) The CIBER Registration Statement, including any CIBER Rule
462(b) Registration Statement, has been declared effective under the 1933
Act; any required filing of the CIBER Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending the
effectiveness of the CIBER Registration Statement or any CIBER Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
(iv) The CIBER Registration Statement, including any CIBER Rule
462(b) Registration Statement, the CIBER Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the CIBER Registration Statement and CIBER Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, as to
which we express no opinion) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
(v) The documents incorporated by reference in the CIBER Prospectus
(other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we express no opinion), when they
became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations of
the Commission thereunder.
We have been retained by the Underwriter solely to render legal advice in
connection with the purchase and public offering by the Underwriter of the
Securities and have reviewed the documents referred to herein solely for the
purpose of providing a basis for the foregoing opinions. We have not ourselves
checked the accuracy or completeness of, or otherwise verified, the information
furnished with respect to other matters in the CIBER Registration Statement or
the CIBER Prospectus, and we have not independently or as agent of the
Underwriter investigated the veracity or completeness of statements contained in
the CIBER Registration Statement or the CIBER Prospectus or attempted to verify
the representations made by CIBER in the aforesaid documents. However, we are
familiar with the CIBER Registration Statement and the CIBER Prospectus, and we
have considered the matters required to be
B-1
included and the information contained therein. Further, we have generally
reviewed and discussed with certain officers and employees of CIBER, counsel
for CIBER, independent public accountants for CIBER and the Underwriter the
information furnished. On the basis of such consideration, review and
discussion, but without independent check or verification, nothing has come
to our attention that would lead us to believe (i) that the CIBER
Registration Statement or any amendment thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we express no belief), at the time such CIBER
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (ii) that the CIBER Prospectus or any amendment or supplement
thereto (except for financial statements and schedules and other financial
data included therein or omitted therefrom, as to which we express no
belief), at the time the CIBER Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
B-2
Exhibit C
FORM OF OPINION OF COUNSEL TO CIBER AND THE
CONTRACTING STOCKHOLDER TO BE DELIVERED
PURSUANT TO SECTION 5(a)(5)
(i) CIBER has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) CIBER has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
CIBER Prospectus and to enter into and perform its obligations under the
Registration Agreement.
(iii) CIBER is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which the character of the properties owned or leased by
CIBER, or the transaction of the business of CIBER as now conducted,
requires such qualification, except where the failure to be so qualified or
to be in good standing would not have a material adverse effect upon CIBER
and its subsidiaries, taken as a whole.
(iv) The shares of issued and outstanding capital stock of CIBER
(including shares of CIBER Common Stock owned by the Contracting
Stockholder), have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital
stock of CIBER was issued in violation of the preemptive or other similar
rights of any securityholder of CIBER.
(v) Each "significant subsidiary" of CIBER (as such term is defined
in Rule 405 of the 1933 Act) (each a "Significant Subsidiary") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with corporate power
to own, lease and operate its properties and to conduct its business as
described in the CIBER Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each jurisdiction in which the character of the properties
owned or leased by it, or the transaction of the business of the
Significant Subsidiary as now conducted, requires such qualification,
except where the failure to be so qualified or to be in good standing would
have a material adverse effect on CIBER and its subsidiaries, taken as a
whole; except as otherwise disclosed in the CIBER Registration Statement,
all of the issued and outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly by
CIBER, free and clear of all perfected security interests and, to our
knowledge, all other liens, encumbrances, claims or equities.
(vi) The Registration Agreement has been duly authorized, executed
and delivered by CIBER.
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(vii) All corporate action required to be taken on the part of
CIBER for the authorization, execution and delivery of the Registration
Agreement by CIBER has been duly and validly taken and, to our knowledge,
except for registration rights which have either been fulfilled, do not
apply or have been properly waived, no rights to register outstanding
shares of CIBER's capital stock, or shares issuable upon the exercise of
outstanding warrants, options, convertible securities or other rights to
acquire shares of such capital stock, exist.
(viii) The CIBER Registration Statement, including any CIBER Rule
462(b) Registration Statement, has been declared effective under the 1933
Act; any required filing of the CIBER Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending the
effectiveness of the CIBER Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are
pending or threatened by the Commission.
(ix) CIBER meets the requirements for the use of Form S-3 under the
1933 Act, and the CIBER Registration Statement, including any CIBER Rule
462(b) Registration Statement, the CIBER Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the CIBER Registration Statement and the CIBER Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements,
including the notes relating thereto, and all other financial data included
therein or omitted therefrom, as to which we express no opinion) complied
as to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(x) The documents incorporated by reference in the CIBER Prospectus
(other than the financial statements, including the notes relating thereto,
and all other financial data included therein or omitted therefrom, as to
which we express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder.
(xi) Other than as set forth or contemplated in the CIBER
Prospectus, to our knowledge, there are no legal or governmental
proceedings pending or threatened to which CIBER or any Significant
Subsidiary is or may be a party, or to which any property of CIBER or any
Significant Subsidiary is or may be subject which, if determined adversely
to CIBER or such Significant Subsidiary, would, individually or in the
aggregate, reasonably be expected to have a material adverse effect on
CIBER and its subsidiaries, taken as a whole.
(xii) The description of CIBER's capital stock contained in the
registration statement on Form 8-A (File No. 0-23488) filed with the
Commission on February 25, 1994, to the extent that it constitutes matters
of law, summaries of legal matters, CIBER's charter and bylaws, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(xiii) There is no contract or document known to us that is
required to be filed as an exhibit to the CIBER Registration Statement that
is not so filed and the provisions of the Amended and Restated Certificate
of Incorporation and Bylaws of CIBER and such portion of
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the employee benefit plans and employment agreements as are summarized in
the CIBER Registration Statement and the CIBER Prospectus are fairly
summarized, as to legal matters, in all respects.
(xiv) To our knowledge, no consent, approval, authorization or
order of, or registration or qualification with, any court or governmental
authority or body is required in connection with the due authorization,
execution and delivery by CIBER of the Registration Agreement or for the
performance by CIBER of its obligations thereunder, except such consents,
approvals, authorizations, registrations or qualifications as have been
obtained under or from the 1933 Act, the 1933 Act Regulations, the 1934
Act, the 1934 Act Regulations, the NASD and the New York Stock Exchange and
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriter.
(xv) The execution, delivery and performance by CIBER of the
Registration Agreement and the consummation of the transactions
contemplated therein and compliance by CIBER with its obligations
thereunder do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument, known to us, to which CIBER or any Significant Subsidiary is a
party or by which it or any of them may be bound, or to which any of the
property or assets of CIBER or any Significant Subsidiary is subject
(except for conflicts, breaches or defaults which individually or in the
aggregate would not have a material adverse affect on CIBER and its
subsidiaries taken as a whole), nor will such action result in any
violation of the provisions of the charter or by-laws of CIBER or any
applicable law or statute or any order, rule, regulation, judgment, order,
writ or decree, known to us, of any court or governmental agency or body
having jurisdiction over CIBER or any Significant Subsidiary or any of
their respective properties.
(xvi) The Purchase Agreement has been duly executed and delivered
by the Contracting Stockholder.
(xvii) The execution, delivery and performance by the Contracting
Stockholder of the Purchase Agreement, Forward Purchase Contract and the
Security and Pledge Agreement and the consummation by the Contracting
Stockholder of the transactions contemplated therein and compliance by the
Contracting Stockholder with his obligations thereunder do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any tax, lien, charge or encumbrance upon any property or assets of the
Contracting Stockholder (including the shares of CIBER Common Stock owned
by the Contracting Stockholder) pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or
other agreement or instrument, known to us, to which the Contracting
Stockholder is a party or by which he may be bound, or to which any of the
property or assets of the Contracting Stockholder is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not, individually or in the aggregate, materially and adversely
affect the ability of the Contracting Stockholder to perform his
obligations under the Purchase Agreement, Forward Purchase Contract or the
Security and
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Pledge Agreement), nor will such action result in any violation of the
provisions of the 1998 Bobby G. Stevenson Revocable Trust, or any
applicable law or statute or any order, rule, regulation, judgment,
order, writ or decree, known to us, of any governmental agency or body
having jurisdiction over the Contracting Stockholder or any of his assets
(except for such violations that would not, singly or in the aggregate,
materially and adversely affect the ability of the Contracting Stockholder
to perform his obligations under the Purchase Agreement, Forward Purchase
Contract or the Security and Pledge Agreement).
(xviii) To our knowledge, no consent, approval, authorization or
order of, or registration or qualification with, any court or governmental
authority or body is required in connection with the due execution and
delivery by the Contracting Stockholder of the Purchase Agreement, the
Forward Purchase Contract or the Security and Pledge Agreement or the
performance by the Contracting Stockholder of his obligations thereunder,
except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under or from the 1933 Act, the 1933
Act Regulations, the 1934 Act, the 1934 Act Regulations, the NASD and the
New York Stock Exchange and as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriter; and the Contracting Stockholder has the full
right, power and capacity to pledge and assign the shares of CIBER Common
Stock to be pledged and assigned by the Contracting Stockholder pursuant to
the Security and Pledge Agreement and to sell, transfer and deliver the
shares of CIBER Common Stock to be sold by the Contracting Stockholder
pursuant to the Forward Purchase Contract.
(xix) Each of the Forward Purchase Contract and the Security and
Pledge Agreement has been duly executed and delivered by the Contracting
Stockholder and (assuming the due authorization, execution and delivery
thereof by the other parties thereto) constitutes a valid and binding
agreement of the Contracting Stockholder, enforceable against the
Contracting Stockholder in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(xx) The Contracting Stockholder has all rights in and to the
shares of CIBER Common Stock to be pledged and assigned by the Contracting
Stockholder pursuant to the Security and Pledge Agreement, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, other than those created pursuant to the Security and Pledge
Agreement; and the shares of CIBER Common Stock pledged by the Contracting
Stockholder as of the date hereof have been duly and validly assigned,
delivered and pledged by the Contracting Stockholder under the Security and
Pledge Agreement and such Security and Pledge Agreement, together with such
assignment, delivery and pledge, creates, as security for the performance
of the obligations of the Contracting Stockholder under the Forward
Purchase Contract, a valid first priority and perfected security interest
in such shares of CIBER Common Stock prior to other liens.
(xxi) If on the business day immediately preceding the Maturity
Date the Contracting Stockholder delivers to the ML&Co. Subsidiary shares
of CIBER Common Stock pursuant to the Forward Purchase Contract, upon
delivery by the Contracting Stockholder to the ML&Co.
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Subsidiary of the shares of CIBER Common Stock pursuant to the Forward
Purchase Contract, the ML&Co. Subsidiary will be the sole registered owner
of the shares of CIBER Common Stock so delivered and, assuming the ML&Co.
Subsidiary purchased for value and without notice of any adverse claim,
the ML&Co. Subsidiary, assuming compliance with the Security and Pledge
Agreement, will have acquired all rights in and to such shares of CIBER
Common Stock, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(xxii) Upon the occurrence of an Event of Default specified in the
Security and Pledge Agreement, the rights of the Collateral Agent with
respect to the Collateral, as set forth in the Security and Pledge
Agreement, shall immediately become exercisable in accordance with the
terms of the Security and Pledge Agreement, and such rights will not be
subject to any stay pursuant to Section 362(a) of Title 11 of the United
States Code.
(xxiii) The 1998 Bobby G. Stevenson Revocable Trust has been duly
created and is a valid trust under the laws of the State of Colorado.
We have not verified, and are not passing upon and do not assume any
responsibility for the accuracy, completeness, or fairness of the statements
contained in the CIBER Registration Statement or the CIBER Prospectus. We have,
however, participated in conferences with officers and other representatives of
CIBER, representatives of the independent public accountants of CIBER, and
representatives of the Underwriter, at which the contents of the CIBER
Registration Statement and the CIBER Prospectus were discussed. In the course
of our participation in such conferences, nothing has come to our attention that
would lead us to believe that the CIBER Registration Statement or any amendment
thereto (except for financial statements, including the related notes thereto,
and other financial data included therein or omitted therefrom, as to which we
express no view), at the time such CIBER Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the CIBER Prospectus or any
amendment or supplement thereto (except for financial statements, including the
related notes thereto, and other financial data included therein or omitted
therefrom, as to which we express no view), at the time the CIBER Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
C-5
Exhibit D
[Form of lock-up pursuant to Section 5(a)(16)]
_____________, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1209
Re: Proposed Public Offering of STRYPES of Merrill Lynch & Co., Inc.
Ladies and Gentlemen:
The undersigned understands that Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") proposes to enter into a
Purchase Agreement (the "Purchase Agreement") with Merrill Lynch & Co., Inc.
("ML&Co.") and Bobby G. Stevenson, individually and as settlor, beneficiary and
trustee of the trust made by Bobby G. Stevenson as settlor and trustee under the
1998 Revocable Trust Agreement dated January 26, 1998 (the "1998 Bobby G.
Stevenson Revocable Trust"), providing for the public offering (the "Public
Offering") of ML&Co.'s Structured Yield Product Exchangeable for Stock (-SM-), 7
7/8% STRYPES-SM- Due February 1, 2001, payable at maturity by delivery of shares
of Common Stock, par value $.01 per share (the "CIBER Common Stock"), of CIBER,
Inc. ("CIBER").
In recognition of the benefit that the Public Offering will confer upon the
undersigned as a stockholder and an officer and/or director of CIBER, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned hereby agrees that, without the prior
written consent of Merrill Lynch, the undersigned will not, during the period
commencing on the date hereof and ending 90 days thereafter: (1) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any shares of CIBER
Common Stock or any securities convertible into or exercisable or exchangeable
for shares of CIBER Common Stock (whether such shares or any securities are now
owned or hereafter acquired) or cause to be filed any registration statement
under the Securities Act of 1933 with respect to any of the foregoing, or (2)
enter into any swap or any other arrangement that transfers to another, in whole
or in part, directly or indirectly, any of the economic consequences of
ownership of CIBER Common Stock, whether or not any such transaction described
in clause (1) or (2) above is to be settled by delivery of CIBER Common Stock or
such other securities, in cash or otherwise.
- --------------------------------
(-SM-) Service mark of Merrill Lynch & Co., Inc.
D-1
Whether or not a Public Offering actually occurs depends on a number of
conditions, including market conditions. The Public Offering will be made only
pursuant to a Purchase Agreement, the terms of which will be subject to
agreement among ML&Co., Bobby G. Stevenson, individually and as settlor,
beneficiary and trustee of the 1998 Bobby G. Stevenson Revocable Trust, and
Merrill Lynch.
Very truly yours,
Signature:
---------------------------------
Print Name:
---------------------------------
Accepted as of the date set forth above:
By
--------------------------------------
Name:
D-2