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EXHIBIT 1.1
AFFILIATED COMPUTER SERVICES, INC.
DEBT SECURITIES
-------------------------
UNDERWRITING AGREEMENT
June 1, 2005
CITIGROUP GLOBAL MARKETS INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
C/O GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
Ladies and Gentlemen:
From time
to time Affiliated Computer Services, Inc., a Delaware
corporation (the "Company"), proposes to
enter into one or more Pricing
Agreements (each a "Pricing Agreement") in
the form of Annex I hereto, with such
additions and deletions as the parties
thereto may determine, and, subject to
the terms and conditions stated herein and
therein, to issue and sell to the
firms named in Schedule I to the applicable
Pricing Agreement (such firms
constituting the "Underwriters" with
respect to such Pricing Agreement and the
securities specified therein) certain of
its debt securities (the "Securities")
specified in Schedule II to such Pricing
Agreement (with respect to such Pricing
Agreement, the "Designated
Securities").
The terms
and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing
Agreement relating thereto and in or
pursuant to the indenture, as it may be
amended and supplemented by any
supplemental indenture (the "Indenture")
identified in such Pricing Agreement.
1.
Particular sales of Designated Securities may be made from time to
time
to the Underwriters of such Securities, for
whom the firms designated as
representatives of the Underwriters of such
Securities in the Pricing Agreement
relating thereto will act as
representatives (the "Representatives"). The term
"Representatives" also refers to a single
firm acting as sole representative of
the Underwriters and to an Underwriter or
Underwriters who act without any firm
being designated as its or their
representatives. This Underwriting Agreement
shall not be construed as an obligation of
the Company to sell any of the
Securities or as an obligation of any of
the Underwriters to purchase the
Securities. The obligation of the Company
to issue and sell any of the
Securities and the obligation of any of the
Underwriters to purchase any of the
Securities shall be evidenced by the
Pricing Agreement with respect to the
Designated Securities specified therein.
Each Pricing Agreement shall specify
the aggregate principal amount of such
Designated Securities, the initial public
offering price of such Designated
Securities, the purchase price to the
Underwriters of such Designated Securities,
the names of the Underwriters of
such Designated Securities, the names of
the Representatives of such
Underwriters and the principal amount of
such Designated
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Securities to be purchased by each
Underwriter and shall set forth the date,
time and manner of delivery of such
Designated Securities and payment therefor.
The Pricing Agreement shall also specify
(to the extent not set forth in the
Indenture and the registration statement
and prospectus with respect thereto)
the terms of such Designated Securities. A
Pricing Agreement shall be in the
form of an executed writing (which may be
in counterparts), and may be evidenced
by an exchange of telegraphic
communications or any other rapid transmission
device designed to produce a written record
of communications transmitted. The
obligations of the Underwriters under this
Agreement and each Pricing Agreement
shall be several and not joint.
2. The
Company represents and warrants to, and agrees with, each of
the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-68656)
(the
"Initial
Registration Statement") in respect of the Securities has been
filed with
the Securities and Exchange Commission (the "Commission"); the
Initial
Registration Statement and any post-effective amendment
thereto,
each in
the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial
Registration
Statement,
but including all documents incorporated by reference in the
prospectus
contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in
such form;
other than
a registration statement, if any, increasing the size of the
offering
(a "Rule 462(b) Registration Statement"), filed pursuant to
Rule
462(b)
under the Securities Act of 1933, as amended (the "Act"), which
became
effective upon filing, no other document with respect to the
Initial
Registration Statement or document incorporated by reference
therein
has heretofore been filed or transmitted for filing with the
Commission
(other than prospectuses filed pursuant to Rule 424(b) of the
rules and
regulations of the Commission under the Act, each in the form
heretofore
delivered to the Representatives); and no stop order suspending
the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b)
Registration
Statement,
if any, has been issued and no proceeding for that purpose has
been
initiated or, to the Company's knowledge, threatened by the
Commission
(any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to
Rule
424(a)
under the Act, is hereinafter called a "Preliminary
Prospectus";
the
various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b)
Registration
Statement,
if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
Initial
Registration Statement at the time such part of the Initial
Registration
Statement
became effective, but in each case, excluding Form T-1, each as
amended at
the time such part of the Initial Registration Statement became
effective
or such part of the Rule 462(b) Registration Statement, if any,
became or
hereafter becomes effective, are hereinafter collectively
called
the
"Registration Statement"; the prospectus relating to the
Securities,
in the
form in which it has most recently been filed, or transmitted
for
filing,
with the Commission on or prior to the date of this Agreement,
being
hereinafter called the "Prospectus"; any reference herein to
any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and
include
the documents incorporated by reference therein pursuant to the
applicable
form under the Act, as of the date of such Preliminary
Prospectus
or Prospectus, as the case may be; any reference to any
amendment
or supplement to any Preliminary Prospectus or the Prospectus
shall be
deemed to refer to and include any documents filed after the
date
of such
Preliminary Prospectus or Prospectus, as the case may be, under
the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as
the case
may be; any reference to any amendment
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to the
Initial Registration Statement shall be deemed to refer to and
include
any annual report of the Company filed pursuant to Sections
13(a)
or 15(d)
of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or
supplemented shall be deemed to refer to the Prospectus as amended
or
supplemented in relation to the applicable Designated Securities in
the
form in
which it is filed with the Commission pursuant to Rule 424(b)
under the
Act in accordance with Section 5(a) hereof, including any
documents
incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when
they
became effective or were filed with the Commission, as the case
may
be,
conformed in all material respects to the requirements of the Act
or
the
Exchange Act, as applicable, and the rules and regulations of
the
Commission
thereunder, and none of such documents contained an untrue
statement
of a material fact or omitted to state a material fact required
to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated
by
reference
in the Prospectus or any further amendment or supplement
thereto,
when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to
the
requirements of the Act or the Exchange Act, as applicable, and
the
rules and
regulations of the Commission thereunder and will not contain
an
untrue
statement of a material fact or omit to state a material fact
required
to be stated therein or necessary to make the statements
therein
not
misleading; provided, however, that this representation and
warranty
shall not
apply to any statements or omissions made in reliance upon and
in
conformity with information furnished in writing to the Company by
an
Underwriter of Designated Securities through the Representatives
expressly
for use in
the Prospectus as amended or supplemented relating to such
Securities, or to any Form T-1;
(c) The Registration Statement and the Prospectus conform, and
any
further
amendments or supplements to the Registration Statement or the
Prospectus
will conform, in all material respects to the requirements of
the Act
and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture
Act") and the rules and regulations of the Commission
thereunder
and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable
filing
date as to the Prospectus and any amendment or supplement
thereto,
contain an
untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the
statements
therein
not misleading; provided, however, that this representation and
warranty
shall not apply to any statements or omissions made in reliance
upon and
in conformity with information furnished in writing to the
Company by
an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended
or
supplemented relating to such Securities, or to any Form T-1;
(d) Neither the Company nor any of its subsidiaries has
sustained
since the
date of the latest audited financial statements included or
incorporated by
reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or
other
calamity,
whether or not covered by insurance, or from any labor dispute
or court
or governmental action, order or decree, otherwise than as set
forth or
contemplated in the Prospectus; and, since the respective dates
as of
which information is given in the Registration Statement and
the
Prospectus, there has not been any change in the capital stock
or
long-term
debt of the Company or any of its subsidiaries (other than
changes
due to repurchases of shares of the Company's class A common
stock
under the
Company's announced open market repurchase
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program
and changes, if any, in the ordinary course of business, (i) in
amounts
outstanding under the Company's unsecured, revolving credit
facility,
or (ii) due to issuances of the Company's class A common stock
under the
Company's stock-based employee benefit and options plans), or
any
material adverse change, or any development involving a
prospective
material
adverse change, in or affecting the general affairs,
management,
financial
position, stockholders' equity or results of operations of the
Company
and its subsidiaries taken as a whole, otherwise than as set
forth
or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing
as a
corporation in good standing under the laws of the State of
Delaware,
with
corporate power and authority to own its properties and conduct
its
business
as described in the Prospectus; each of the Company's
subsidiaries set forth on Schedule A hereto (collectively, the
"Material
Subsidiaries," and each a "Material Subsidiary") is validly
existing as a
corporation, limited partnership or limited liability company, as
the case
may be, in
good standing under the laws of the jurisdiction of its
incorporation or formation, with power and authority (corporate,
limited
partnership or limited liability company, as the case may be) to
own its
properties
and conduct its business as described in the Prospectus; each
of the
Company and its Material Subsidiaries is duly qualified for the
transaction of business and is in good standing as a foreign
corporation,
limited
partnership or limited liability company, as the case may be,
under the laws of each
jurisdiction in which it owns or leases properties
or
conducts any business so as to require such qualification, or
is
subject to
no material liability or disability by reason of the failure to
be so
qualified in any such jurisdiction; each of the Company and each
of
its
Material Subsidiaries possesses and is in compliance with all
necessary
consents, approvals, authorizations, orders, registrations,
qualifications, licenses, franchises and permits of and from all
public,
regulatory
or governmental agencies and bodies to own, lease and operate
its
properties and conduct its business as presently conducted and
as
described
in the Prospectus, with such exceptions as are not material,
and
no such
consent, approval, authorization, order, registration,
qualification, license, franchise or permit contains a
materially
burdensome
restriction not adequately disclosed in the Prospectus;
(f) The Company has an authorized capitalization as set forth in
the
Prospectus, and all of the issued shares of capital stock of the
Company
have been
duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of
each
Material
Subsidiary of the Company have been duly and validly authorized
and issued
and are fully paid and non-assessable and (except for
directors'
qualifying shares) are owned directly or indirectly by the
Company,
free and clear of any mortgage, pledge, security interest or
restriction on transfer or voting and to the best of the
Company's
knowledge,
any claims, liens or encumbrances;
(g) The Securities have been duly authorized, and, when
Designated
Securities
are issued and delivered pursuant to this Agreement and the
Pricing
Agreement with respect to such Designated Securities, such
Designated
Securities will have been duly executed, authenticated, issued
and
delivered and will constitute valid and legally binding obligations
of
the
Company entitled to the benefits provided by the Indenture, which
will
be
substantially in the form filed as an exhibit to the
Registration
Statement;
the Indenture has been duly authorized by the Company and duly
qualified
under the Trust Indenture Act and, at the Time of Delivery for
such
Designated Securities (as defined in Section 4 hereof), the
Indenture
will
constitute a valid and legally binding instrument of the
Company,
enforceable against the Company in accordance with its terms,
subject, as
to
enforcement, to bankruptcy, insolvency,
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fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general
equity
principles; and the Indenture conforms, and the Designated
Securities
will conform, to the descriptions thereof contained in the
Prospectus
as amended or supplemented with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the compliance by
the
Company
with all of the provisions of the Securities, the Indenture,
this
Agreement
and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not (i) conflict
with or
result in
a breach or violation of any of the terms or provisions of, or
constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement
or other agreement or instrument to which the Company or any of
its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the
Company or
any of its subsidiaries is subject, (ii) result in any
violation
of the provisions of the certificate of incorporation or bylaws
(or other
organizational documents, as applicable) of the Company or any
of its
subsidiaries or (iii) result in any violation of any statute or
any
order,
rule or regulation of any court or governmental agency or body
having
jurisdiction over the Company or any of its subsidiaries or any
of
its
respective properties, except (x) that any rights to
indemnification
and
contribution set forth in this Agreement and the Pricing Agreement
may
be limited
by federal and state securities laws and public policy
considerations and (y) with respect to clause (i) above, for
such
conflicts,
breaches or violations as would not reasonably be expected,
individually or in the aggregate, to have a material adverse effect
on the
condition
(financial or other), business, management, properties,
stockholders' equity or results of operations of the Company and
its
subsidiaries taken as a whole (a "Material Adverse Effect"); and
no
consent,
approval, authorization, order, registration or qualification
of
or with
any such court or governmental agency or body is required for
the
issue and
sale of the Securities or the consummation by the Company of
the
transactions contemplated by this Agreement or any Pricing
Agreement or
the
Indenture, except such as have been, or will have been prior to
the
Time of
Delivery, obtained under the Act and the Trust Indenture Act
and
such
consents, approvals, authorizations, registrations or
qualifications
as may be
required under state securities or Blue Sky laws in connection
with the
purchase and distribution of the Securities by the
Underwriters;
(i) The statements set forth in the Prospectus under the
captions
"Description of Debt Securities" and "Description of Notes",
insofar as
they
purport to constitute a summary of the terms of the Securities,
and
under the
captions "Plan of Distribution" and "Underwriting", insofar as
they
purport to describe the provisions of the laws and documents
referred
to
therein, are accurate, complete and fair;
(j) Neither the Company nor any of its Material Subsidiaries is
in
violation
of its certificate of incorporation or bylaws (or other similar
organizational documents, as applicable); and neither the Company
nor any
of its
subsidiaries is (i) in default in the performance or observance
of
any
obligation, agreement, covenant or condition contained in any
indenture,
mortgage, deed of trust, loan agreement, lease or other
agreement
or instrument to which it is a party or by which it or any of
its
properties may be bound, or (ii) in violation in any respect of
any
statute or
any judgment, decree, order, rule or regulation of any court or
governmental or regulatory agency or body having jurisdiction over
it or
any of its
properties or assets, except, in case of (i) and (ii) any
default or
violation that would not, individually or in the aggregate,
reasonably
be expected to have a Material Adverse Effect;
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(k) Other than as set forth in the Prospectus, there are no legal
or
governmental proceedings pending to which the Company or any of
its
subsidiaries is a party or of which any property of the Company or
any of
its
subsidiaries is the subject which, if determined adversely to
the
Company or
any of its subsidiaries, would individually or in the
aggregate,
reasonably be expected to have a Material Adverse Effect; and,
to the
best of the Company's knowledge, no such proceedings are
threatened
or
contemplated by governmental authorities or threatened by
others;
(l) The Company is not and, after giving effect to the offering
and
sale of the Securities and
the application of the proceeds therefrom as
described
in the Prospectus, will not be an "investment company", as such
term is
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) PricewaterhouseCoopers LLP, who have certified certain
financial
statements
of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the
Commission
thereunder;
(n) The Company maintains a system of internal control over
financial
reporting within the definition of that term as set forth in
Rule
13a-15(f) of the Exchange Act. As required under Section 302 of
the
Sarbanes
Oxley Act of 2002 (the "Sarbanes Oxley Act"), the Company's
principal
executive officer and principal financial officer have
certified
in each
such report that (i) they have disclosed in each of the
Company's
Form 10-K
Annual Report for the fiscal year ended June 30, 2004 and Form
10-Q
Quarterly Reports for the fiscal quarters ended September 30,
2004,
December
31, 2004 and March 31, 2005, any change in the Company's
internal
control
over financial reporting that occurred during the quarterly
period
covered by
such report that had materially affected, or was reasonably
likely to
materially affect, the Company's internal control over
financial
reporting,
and (ii) they have disclosed to the Company's auditors and
audit
committee, in respect of the quarterly period covered by such
report
and based
on their then most recent evaluation of the Company's internal
control
over financial reporting, all significant deficiencies and
material
weaknesses in the design or operation of internal control over
financial
reporting which were then reasonably likely to adversely affect
the
Company's ability to record, process, summarize, and report
financial
information, and any fraud, whether or not material, that then
involved
management
or other employees who then had a significant role in the
Company's
internal control over financial reporting. The certifications
made by
such officers in each such report were, as of the date given,
complete
and correct. The Company is in material compliance with all
applicable
provisions of the Sarbanes-Oxley Act required to be observed by
it as of
the date of this Agreement and is taking such steps as it deems
appropriate and necessary to ensure that it will be in material
compliance
with any
other applicable provisions of the Sarbanes-Oxley Act on and as
of the
date on which compliance with such provisions will be required;
(o) Although the Company has not yet completed its initial
annual
management
assessment concerning the effectiveness of its internal control
over
financial reporting as required under the Sarbanes Oxley Act,
nothing
has come
to the Company's attention that causes it to believe that its
system of
internal control over financial reporting is not sufficient in
all
material respects to provide reasonable assurance regarding the
reliability of the Company's financial reporting and the
preparation of
the
Company's financial statements for external purposes in
accordance
with
generally accepted accounting principles;
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(p) As required under Rule 13a-15(a) of the Exchange Act, the
Company
maintains a system of disclosure controls and procedures (as
such
term is
defined in Rule 13a-15(e) of the Exchange Act and herein so
called).
As of the date of the latest financial statements of the
Company
included or
incorporated by reference in the Prospectus, such disclosure
controls
and procedures were operating effectively. Nothing has come to
the
Company's attention that causes it to believe that such
disclosure
controls
and procedures are not sufficient in all material respects to
ensure
that information required to be disclosed by the Company in the
reports it
files or submits under the Exchange Act is recorded, processed,
summarized
and reported, within the time periods specified in the SEC's
rules and
forms;
(q) The consolidated financial statements of the Company,
including
the notes
thereto, and supporting schedules included or incorporated by
reference
in the Registration Statement and the Prospectus present
fairly,
in all
material respects, the financial position of the Company and
its
consolidated subsidiaries as of the dates indicated and their
results of
operations
and cash flows for the periods specified; and all such
financial
statements have been prepared in conformity with the generally
accepted
accounting principles in the United States applied on a
consistent
basis throughout the periods involved;
(r) The conditions for use of Form S-3, as set forth in the
General
Instructions thereto, have been satisfied;
(s) Each of the Company and its subsidiaries possess and is in
compliance
with all patents, trademarks, franchises, permits, licenses
(including
without limitation all software licenses) and similar items as
well as
all electronic data processing, electronic funds transfer and
other
contracts, agreements, leases and arrangements necessary or
material
to the
conduct of its business as presently conducted or proposed to
be
conducted
and as described in the Prospectus, except where failure to
possess
any of the foregoing would not, individually or in the
aggregate,
reasonably
be expected to have a Material Adverse Effect; the Company has
not
received any notice of infringement of or conflict with (and knows
of
no such
infringement of or conflict with) asserted rights of others
with
respect to
any patents, trademarks, service marks, trade names, copyrights
or
know-how which could individually or in the aggregate, reasonably
be
expected
to have a Material Adverse Effect; and neither the Company nor
any of its
subsidiaries has received any notice of cancellation of the
same or
any notice of proceedings relating to the revocation,
suspension
or
modification of any of the foregoing which c
