COMMON STOCK, PAR VALUE $0.01 PER
SHARE
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1201
Certain
shareholders of URS Corporation, a Delaware corporation (the
“ Company ”), named in Schedule I hereto
(each, a “ Selling Shareholder ” and,
collectively, the “ Selling Shareholders ”)
severally propose to sell to Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the “ Underwriter ”) an
aggregate of 3,580,907 shares of the common stock, par value $0.01
per share, of the Company (the “ Shares ”), each
Selling Shareholder selling the amount set forth opposite such
Selling Shareholder’s name in Schedule I hereto. The
shares of common stock, par value $0.01 per share, of the Company
are hereinafter referred to as the “ Common Stock
”.
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement on
Form S-3 (No. 333-129233), including a prospectus,
relating to the Shares and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of
the Commission under the Securities Act (the “ Securities
Act Regulations ”), and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission (i) a prospectus supplement (the
“ Prospectus Supplement ”) specifically relating
to the Shares pursuant to Rule 424 under the Securities Act of
1933, as amended (the “Securities Act" ), and
(ii) a related prospectus dated December 5, 2005 (the
“ Base Prospectus ”). Such registration
statement has been declared effective by the Commission. Such
registration statement, as amended to the date hereof, is referred
to herein as the “Registration Statement" ; and the
Base Prospectus and the Prospectus Supplement, in the form first
used to confirm sales of the Shares, are collectively referred to
herein as the “Prospectus" ; provided ,
however , that all references to the “Registration
Statement” and the “Prospectus” shall
also be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as
amended (the “Exchange Act" ). If the Company has
filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the “ Rule 462 Registration Statement
”), then any reference herein to the term “
Registration Statement ” shall be deemed to include
such Rule 462 Registration Statement.
1.
Representations and Warranties of the Company . The Company
represents and warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange
Act, and incorporated by reference in the Prospectus complied or
will comply
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when so filed
in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective and at its deemed
effective date with respect to the Underwriter pursuant to
Rule 430B(f)(2) of the Securities Act Regulations, did not
contain and, as amended or supplemented, if applicable, will not
contain any 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) the Registration
Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable Securities Act
Regulations, (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and
(v) as of the Applicable Time, neither (x) the Issuer
General Use Free Writing Prospectus(es) (as defined below) issued
at or prior to the Applicable Time (as defined below), the
Statutory Prospectus (as defined below) and the information
included on Schedule II hereto, all considered together
(collectively, the “General Disclosure Package”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 8:45 a.m. New York time on December 7, 2005
or such other time as agreed by the Company and the
Underwriter.
“Statutory
Prospectus” as of any time means the prospectus relating to
the Shares that is included in the Registration Statement
immediately prior to that time, including any document incorporated
by reference therein and any preliminary or other prospectus deemed
to be a part thereof.
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the Securities
Act Regulations (“Rule 433”), relating to the
Shares that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Shares or of the offering
that does not reflect the final terms, in each case in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form required to be retained in the
Company’s records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in
Schedule III hereto.
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“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
Each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Shares or until any earlier date that the issuer notified or
notifies the Underwriter as described in Section 7(d), did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document
incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded
or modified.
The
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use therein.
(c) The Company
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each
subsidiary of the Company has been duly incorporated or formed, is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation or formation, has the
corporate or limited liability company power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock of each subsidiary of the
Company that is a corporation and all of the issued limited
liability company interests of each subsidiary that is a limited
liability company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or
beneficially by the Company or through wholly owned subsidiaries of
the Company, free and clear of all liens, encumbrances, equities or
claims (except in each case as disclosed in the
Prospectus).
(e) This Agreement
has been duly authorized, executed and delivered by the
Company.
(f) The authorized
capital stock of the Company conforms as to legal matters to the
description thereof contained in the Prospectus.
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(g) The
outstanding shares of Common Stock (including the Shares to be sold
by the Selling Shareholders) have been duly authorized and are
validly issued, fully paid and non-assessable.
(h) The execution
and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may
be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the
Shares.
(i) There has not
occurred any material adverse change, or any development involving
a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth
in the General Disclosure Package or the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of
this Agreement).
(j) There are no
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required or described in a
document incorporated by reference into the Registration
Statement.
(k) Each
preliminary prospectus or preliminary prospectus supplement filed
as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material
respects with the Securities Act and the Securities Act
Regulations.
(l) The Company is
not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(m) Except as
disclosed in the Prospectus, the Company and its subsidiaries
(i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval,
except
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where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(n) Except as
disclosed in the Prospectus, there are no costs or liabilities
associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which
would, singly or in the aggregate, reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(o) Except for the
Registration Rights Agreement dated as of August 22, 2002 (the
“ Registration Rights Agreement ”), by and among
the Company, Blum Strategic Partners, L.P., Blum Capital Partners,
L.P., Carlyle-EG&G, L.L.C. and EG&G Technical Services
Holdings, L.L.C., there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration
Statement.
(p) The Company
and each of its subsidiaries (i) have all necessary consents,
authorizations, approvals, orders, certificates and permits of and
from, and have made all declarations and filings with, all federal,
state, local and other governmental, administrative or regulatory
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use their respective
properties and assets and to conduct their respective businesses in
the manner described in the Prospectus, except to the extent that
the failure to obtain such consents, authorizations, approvals,
orders, certificates and permits or make such declarations and
filings would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, and (ii) have not received
any notice of proceedings relating to revocation or modification of
any such consent, authorization, approval, order, certificate or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus.
(q) No material
labor dispute exists with the employees of the Company or any of
its subsidiaries, except as described in or contemplated by the
Prospectus, or, to the Company’s knowledge, is imminent; and
the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(r) The Company
and its subsidiaries have good and marketable title in fee simple
to all real property and good and marketable title to all personal
property owned
5
by them which
is material to their respective businesses, in each case free and
clear of all liens, encumbrances and defects, except such as
(i) are described in the Prospectus, (ii) do not
materially affect the value of such property or (iii) do not
interfere with the use made and proposed to be made of such
property by them; and any real property and buildings held under
lease by them are held under valid, subsisting and enforceable
leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of
such property and buildings by them, in each case except as
described in the Prospectus.
(s) Each of the
Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, “
intellectual property rights ”) necessary to conduct
the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual
property rights that, 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 on the
Company and its subsidiaries, taken as a whole.
(t) URS Holdings,
Inc., a Delaware corporation (“ URS Holdings ”);
EG&G Technical Services, a Delaware corporation (“
EG&G ”); URS Corporation, a Nevada corporation
(“ URS Nevada ”); and URS Corporation-New York,
a New York corporation (“ URS New York ”) are
the only significant subsidiaries of the Company (calculated on a
basis consistent with the term “significant subsidiary”
as defined under Regulation S-X promulgated under the
Securities Act for the period ended October 31,
2004).
(u) The financial
statements and related notes included in the Registration
Statement, the General Disclosure Package and Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements
and the notes thereto have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis except as disclosed
therein.
(v) The Company
and its subsidiaries maintain systems of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
There
is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply with Section 402 (related to loans) and
Sections 302 and 906 (related to certifications) of the
Sarbanes-Oxley Act of 2002 (the
6
“Sarbanes-Oxley Act”) and the rules
and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Regulations”), nor has there been any
failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with
any other provision of the Sarbanes-Oxley Act or the Sarbanes-Oxley
Regulations.
2.
Representations and Warranties of the Selling Shareholders .
Each Selling Shareholder, severally and not jointly, represents and
warrants to and agrees with the Underwriter that:
(a) This Agreement
has been duly authorized, executed and delivered by or on behalf of
such Selling Shareholder.
(b) The execution
and delivery by such Selling Shareholder of, and the performance by
such Selling Shareholder of its obligations under, this Agreement
will not contravene any provision of applicable law, or the
partnership agreement of such Selling Shareholder (if such Selling
Shareholder is a partnership), or the organizational documents of
such Selling Shareholder (if such Selling Shareholder is not a
partnership) or any agreement or other instrument binding upon such
Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such
Selling Shareholder, except for any contraventions of an agreement,
instrument, judgment, order or decree which would not, individually
or in the aggregate, adversely affect such Selling
Shareholder’s ability to fulfill its obligations under and
consummate the transactions contemplated by this Agreement or
result in the creation or imposition of any security interest, lien
or other encumbrance on any of the Shares being sold by such
Selling Shareholder under this Agreement; and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by such Selling
Shareholder of its obligations under this Agreement, except such as
have been obtained or may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of
the Shares.
(c) Such Selling
Shareholder has, and on the Closing Date will have, valid title to,
or a valid “security entitlement” within the meaning of
Section 8-501 of the New York Uniform Commercial Code (the
“ New York UCC ”) in respect of, the Shares to
be sold by such Selling Shareholder free and clear of all security
interests, claims, liens, equities or other encumbrances and the
legal right and power, and all authorization and approval required
by law, to enter into this Agreement, and to sell, transfer and
deliver the Shares to be sold by such Selling Shareholder or a
security entitlement in respect of such Shares.
(d) Upon
(i) the payment for the Shares to be sold by such Selling
Shareholder pursuant to this Agreement, (ii) delivery of such
Shares, as directed by the Underwriter, to Cede & Co. or such
other nominee as may be designated by The Depository Trust Company
(“ DTC ”), (iii) registration of such
Shares in the name of DTC or its nominee, and DTC or another person
on behalf of DTC maintaining possession of certificates
representing such Shares and (iv) DTC indicating by book
entries on its books that security entitlements with respect to
such Shares have been credited to the Underwriter’s
securities accounts, the Underwriter will acquire a security
entitlement
7
with respect to
such Shares and no action based on an adverse claim (as defined in
Section 8-102 of the New York UCC) may be asserted against the
Underwriter (assuming that (A) the Underwriter is purchasing
such Shares without notice of any adverse claim, (B) DTC is a
“securities intermediary” as defined in
Section 8-102 of the New York UCC and (C) the State of
New York is the “security intermediary’s
jurisdiction” of DTC for purposes of Section 8-110 of
the New York UCC).
(e) (i) The
Registration Statement, when it became effective, did not contain
and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the General
Disclosure Package does not contain, and the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain, any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph 2(e) only apply to statements in or
omissions from the Registration Statement, the General Disclosure
Package or the Prospectus based upon information relating to such
Selling Shareholder furnished to the Company in writing by such
Selling Shareholder specifically for use therein, it being
understood and agreed that the only such information furnished to
the Company by such Selling Shareholder consists of the name of
such Selling Shareholder, the number of Firm Shares to be offered
by such Selling Shareholder and the address and other information
with respect to such Selling Shareholder (excluding any
percentages), which appear in the General Disclosure Package or
under the caption “Principal and Selling Shareholders”
in the Prospectus (the information so furnished in writing being
hereinafter called, collectively, the “ Selling
Shareholder Information ”).
3.
Agreements to Sell and Purchase . Each Selling Shareholder,
severally and not jointly, hereby agrees to sell to the
Underwriter, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from such Selling
Shareholder at $41.17 a share (the “ Purchase Price
”) the number of Shares set forth in Schedule I hereto
opposite the name of such Selling Shareholder.
4.
Terms of Public Offering . The Selling Shareholders and the
Company are advised by you that the Underwriter proposes to make a
public offering of the Shares on the terms set forth in the
Prospectus as soon after the Registration Statement and this
Agreement have become effective as in its judgment is
advisable.
5.
Payment and Delivery . Payment for the Shares to be sold by
each Selling Shareholder shall be made in Federal or other funds
immediately available to a bank account designated by such Selling
Shareholder in the United States against delivery of such Shares to
the Underwriter at 10:00 a.m., New York City time, on
December 12, 2005, or at such other time on the same or such
other date, not later than December 19, 2005, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the “ Closing Date
”.
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The
Shares shall be registered in such names and in such denominations
as you shall request in writing not later than one full business
day prior to the Closing Date. The Shares shall be delivered to you
on the Closing Date with any transfer taxes payable in connection
with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6.
Conditions to the Underwriter’s Obligations . The
obligations of the Selling Shareholders to sell the Shares to the
Underwriter and the obligations of the Underwriter to purchase and
pay for the Shares on the Closing Date are subject to the condition
that no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act or
proceedings therefor initiated or threatened by the
Commission.
The
obligations of the Underwriter are subject to the following further
conditions:
(a) Subsequent to
the execution and delivery of this Agreement and prior to the
Closing Date:
(i) there shall
not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for
a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company’s
securities by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall
not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the General
Disclosure Package or the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement)
that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(b) The
Underwriter shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 6(a)(i) above and
to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing
Date.
The
officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) The
Underwriter shall have received on the Closing Date an opinion of
Cooley Godward LLP, outside counsel for the Company, dated the
Closing Date, to the effect that:
9
(i) the Company
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct
its business as described in the Prospectus and, to such
counsel’s knowledge, is duly qualified to transact business
and is in good standing in each state of the United States in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(ii) each of URS
Holdings and EG&G (each, a “ Covered Subsidiary
” and together, the “ Covered Subsidiaries
”), and has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus;
(iii) the
authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus
under the caption “Description of Capital Stock” and in
the Form 8-A dated January 30, 1984 under the caption
“Description of Capital Stock” (which incorporates by
reference the description of the Common Stock contained in the
Registration Statement on Form S-1 filed on February 28,
1983);
(iv) the
outstanding shares of Common Stock have been duly authorized and
are validly issued, fully paid and non-assessable;
(v) this Agreement
has been duly authorized, executed and delivered by the
Company;
(vi) the execution
and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement will not contravene any
provision of applicable law (except for Section 9 relating to
indemnity and contribution as to which such counsel need not
express any opinion) or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is (A) filed as an
exhibit to the Registration Statement or any document incorporated
by reference therein, (B) incorporated by reference in the
Registration Statement or (C) which the Company has advised
such counsel will be filed as an exhibit to the Company’s
next annual report on Form 10-K or on a Form 8-K and was executed
by the Company prior to the date of such opinion, or to the best of
such
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