EQUIFAX INC.
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
________, 199_
1. INTRODUCTORY. Equifax Inc., a Georgia corporation
(the "Company"), proposes to issue and sell from time to time its
unsecured debt securities, consisting of debentures, notes and
other unsecured evidences of indebtedness in one or more series
("Debt Securities"), (ii) shares of preferred stock, par value
$.01 per share, in one or more series, (iii) shares of common
stock, $1.25 par value, (iv) shares of preferred stock
represented by depositary shares ("Depositary Shares"), and (v)
warrants (the "Warrants") to purchase Debt Securities, preferred
stock, common stock or Depositary Shares, all of which (together
with any securities issuable upon conversion, exchange or
exercise of any of thereof) have been registered under the
registration statement referred to in Section 2(a) (such Debt
Securities, preferred stock, common stock, Depositary Shares and
Warrants (together with any securities issuable upon conversion,
exchange or exercise of any of thereof) are herein collectively
called "Registered Securities"). If so specified in a Terms
Agreement (as hereinafter defined) referred to in Section 3, the
Company proposes to grant to the underwriters an option to
purchase up to the amount of Registered Securities specified in
such Terms Agreement (the "Option Securities"). Debt Securities
will be issued under one or more indentures (as amended or
supplemented from time to time, an "Indenture" and collectively,
the "Indentures"), more particularly described in a Terms
Agreement, between the Company and the trustee named therein (the
"Trustee"), in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices
and other terms, with all such terms for any particular series of
the Debt Securities being determined at the time of sale. The
preferred stock will be issued in one or more series, which
series may vary as to voting rights, dividends, optional and
mandatory redemption provisions, liquidation preference and
conversion provisions and other terms, with all such terms for
any particular series or issue of the preferred stock being
determined at the time of sale. Additional representations,
warranties, covenants, conditions and other terms related to any
issue of Depositary Shares or Warrants (and any securities
issuable upon conversion, exchange or exercise thereof) will be
set forth in the Terms Agreement applicable thereto. The
Registered Securities will be sold pursuant to a Terms Agreement,
for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities (including, without
limitation, any Option Securities) involved in any such offering
are hereinafter referred to as the "Securities." The firm or
firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any,
specified in a Terms Agreement are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement
does not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement, shall mean the
Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as of the date of this
Agreement as follows:
A registration statement on Form S-3 (File No.
333-________) with respect to the Registered Securities (i)
has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder and (ii) has been filed with
the Commission under the Securities Act. Such registration
statement has become effective under the Securities Act. If
any post-effective amendment to such registration statement
has been filed with the Commission prior to the date of the
applicable Terms Agreement, the most recent such amendment
has been declared effective by the Commission. Copies of
such registration statement and any amendments thereto have
been delivered by the Company to the Representatives. As
used in this Agreement, "Effective Time" means the
respective date and time as of which such registration
statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission;
and "Effective Date" means the respective applicable date of
the Effective Time. As provided in Section 4(a), a
prospectus supplement relating to the Securities, the terms
of the offering thereof and the other manners set forth
therein has been prepared and will be filed pursuant to Rule
424 under the Securities Act. In addition, a preliminary
prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof, and the other
matters set forth therein also may be prepared and filed
pursuant to Rule 424 under the Securities Act. Such
prospectus supplement, in the form filed on or after the
date of this Agreement pursuant to Rule 424, is referred to
in this Agreement as the "Prospectus Supplement", and any
such preliminary prospectus supplement in the form filed
after the date of this Agreement pursuant to Rule 424 is
referred to as the "Preliminary Prospectus Supplement." Any
prospectus accompanied by a Preliminary Prospectus
Supplement is referred to in this Agreement, collectively
with such Preliminary Prospectus Supplement, as a
"Preliminary Prospectus." The registration statement
referred to in this Section 2(a), as amended at the time of
execution and delivery of the Terms Agreement, including the
exhibits thereto (but excluding the Statement of
Qualification and Eligibility ("Form T-1")) and the
documents filed by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act
(the "Incorporated Documents") and the information, if any,
deemed to be a part of the registration statement pursuant
to Rule 430A(b) under the Securities Act, is called the
"Registration Statement"; and the basic prospectus included
therein relating to all offerings of securities under the
Registration Statement, as supplemented by the Prospectus
Supplement, is called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to
the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case
including the Incorporated Documents. Notwithstanding the
foregoing, any prospectus supplement prepared or filed with
respect to an offering pursuant to the Registration
Statement of securities other than the Securities shall not
be deemed to have supplemented the Prospectus. The
Commission has not issued any order suspending the
effectiveness of the Registration Statement, and no such
stop order has been initiated or threatened by the
Commission.
(b) on the Effective Date, the Registration Statement
conformed in all material respects to the requirements of
the Securities Act and the Rules and Regulations, and 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; and
on the date of the applicable Terms Agreement, and at the
time of filing of the Prospectus pursuant to Rule 424(b)
under the Securities Act, the Prospectus will conform in all
material respects to the requirements of the Securities Act
and the Rules and Regulations, and will not include an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and on the Effective Date and the
Closing Date, respectively, the Indenture, if any, described
in the Terms Agreement conformed and will conform in all
material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the applicable rules and regulations thereunder;
provided that no representation or warranty is made as to
(i) information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein or (ii) that
part of the Registration Statement which shall constitute
the Form T-1 under the Trust Indenture Act.
(c) Xxxxxx Xxxxxxxx LLP, who have certified the
financial statements and supporting schedules included in
the Registration Statement, are independent public
accountants as required by the Securities Act and the Rules
and Regulations.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as set forth in the Registration
Statement and the Prospectus, there has been no material
adverse change or any development involving a prospective
material adverse change in the business, prospects,
properties, operations, condition (financial or other), net
worth or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, and since
the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus, neither the Company nor any of its
subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the
Company and its subsidiaries taken as a whole, except for
liabilities or obligations which are reflected in the
Registration Statement and the Prospectus.
(e) The execution, delivery and performance of the
Terms Agreement (including the provisions of this Agreement)
by the Company and the consummation of the transactions
contemplated hereby and thereby, and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities, have
been duly and validly authorized by the Company, and this
Agreement has been duly and validly executed and delivered
by the Company.
(f) The execution, delivery and performance of the
Terms Agreement (including the provisions of this Agreement)
by the Company and the consummation of the transactions
contemplated hereby and thereby and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities do not
and will not (i) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any agreement, instrument, franchise, license
or permit to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries
or their respective properties or assets may be bound or
(ii) violate or conflict with any provision of the
certificate of incorporation or by-laws of the Company or
any of its subsidiaries or any judgment, decree, order,
statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties or assets. No consent,
approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties or assets is required for
the execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by
the Company and the consummation of the transactions
contemplated hereby and thereby, and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities,
including the issuance, sale and delivery of the Securities
to be issued, sold and delivered by the Company hereunder,
except the registration under the Securities Act of the
Securities and such consents, approvals, authorizations,
orders, registrations, filings, qualifications, licenses and
permits as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of
the Securities by the Underwriters.
(g) All of the outstanding shares of Common Stock are
duly and validly authorized and issued, fully paid and
nonassessable and were not issued and are not now in
violation of or subject to any preemptive rights. The
common stock and preferred stock, if any, described in the
Terms Agreement have been duly authorized by the Company
and, when issued and paid for pursuant to the Terms
Agreement, will be duly and validly issued, fully paid and
non-assessable and will not be issued in violation of or be
subject to any preemptive rights. The Company had, at
________, 199__, an authorized and outstanding
capitalization as set forth in the Registration Statement
and the Prospectus. The common stock and the preferred
stock, if any, described in the Terms Agreement conform to
the descriptions thereof contained in the Registration
Statement and the Prospectus.
(h) Each of the Company and each of its subsidiaries
(as defined in Rule 405 of the Rules and Regulations) has
been duly organized and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and its subsidiaries is
duly qualified and in good standing as a foreign corporation
in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary,
except for those failures to be so qualified or in good
standing which will not in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as
a whole. Each of the Company and its subsidiaries has all
requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations,
qualifications, licenses 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
now being conducted and as described in the Registration
Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license
or permit contains a materially burdensome restriction not
adequately disclosed in the Registration Statement and the
Prospectus. All of the issued shares of capital stock of
each significant subsidiary of the Company have been duly
and validly authorized and issued and are fully paid,
non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities, claims, security interests, restrictions on
transfer, shareholders agreements, voting trusts or other
defects in title. None of the subsidiaries of the Company,
other than those so identified in the Terms Agreement, is a
"significant subsidiary," as such term is defined in Rule
405 of the Rules and Regulations.
(i) The Indenture, if any, described in the Terms
Agreement has been duly authorized, executed and delivered
by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee under the
Indenture) constitutes the valid and legally binding
obligation of the Company, enforceable against the Company
in accordance with its terms.
(j) The Debt Securities, if any, described in the
Terms Agreement have been duly authorized by the Company
and, when the terms of the Debt Securities and of their
issuance and sale have been duly established in accordance
with the Indenture, the Terms Agreement (including this
Agreement) and the Debt Securities have been duly executed,
authenticated, issued and delivered in the manner provided
in the Indenture and paid for in accordance with the Terms
Agreement (including this Agreement), the Debt Securities
will be duly and validly issued and delivered by the Company
and will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance
with their terms and entitled to the benefits of the
Indenture; if any Securities to be issued are convertible,
the shares of common stock issuable upon conversion thereof
have been duly authorized by the Company, have been duly
reserved for issuance upon conversion of the Securities and,
when issued upon the conversion of the Securities, will be
duly and validly issued, fully paid and non-assessable; no
further approval or authority of the stockholders or the
Board of Directors of the Company will be required for the
issuance and sale of the Securities as contemplated herein
or the issuance of the shares of common stock upon
conversion of the Securities; and the Debt Securities and
the Indenture, if any, described in the Terms Agreement and
the capital stock of the Company, if any issuable upon
conversion of such Debt Securities, will conform to the
descriptions thereof contained in the Registration Statement
and the Prospectus.
(k) Except as described in the Prospectus, there is
no litigation or governmental proceeding to which the
Company or any of its subsidiaries is a party or to which
any property of the Company or any of its subsidiaries is
subject or which is pending or, to the knowledge of the
Company, contemplated against the Company or any of its
subsidiaries which would reasonably be expected to result in
any material adverse change or any development involving a
prospective material adverse change in the business,
prospects, properties, operations, condition (financial or
other) or net worth or results of operations of the Company
and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement and the
Prospectus; and to the actual knowledge of the Company, no
such proceedings are threatened by governmental authorities
or by others.
(l) The Company has not taken and will not take,
directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably be
expected to constitute, the stabilization or manipulation of
the price of the Securities to facilitate the sale or resale
of the Securities.
(m) The financial statements, including the notes
thereto, and supporting schedules included in the
Registration Statement and the Prospectus present fairly the
financial position of the Company as of the dates indicated
and the results of its operations for the periods specified;
except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules
included in the Registration Statement and Prospectus
present fairly the information required to be stated
therein.
(n) Except as described in the Prospectus, no holder
of securities of the Company has any rights to the
registration of securities of the Company because of the
filing of the Registration Statement or otherwise in
connection with the sale of the Securities contemplated in
the Terms Agreement. Immediately after the sale of the
Securities by the Company under the Terms Agreement, the
aggregate amount of Securities which shall have been issued
and sold by the Company under the Terms Agreement and of any
other securities of the Company (other than the Securities)
that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of
securities registered under the Registration Statement.
(q) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, 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 Exchange Act and the rules and
regulations of the Commission under the Exchange Act, and,
when read together with the other information in the
Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Date,
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, in the light of
the circumstances under which they were made, not
misleading.
(r) Neither the Company nor any of its subsidiaries
nor, to the Company's knowledge, any other party, is now, or
is reasonably expected by the Company or any of its
subsidiaries to be, (i) in violation or breach of, or
default (disregarding any grace or notice provision) with
respect to any material provision of any contract,
agreement, instrument, lease, license, policy, arrangement,
or understanding to which the Company or any of its
subsidiaries is a party, or (ii) in violation of any law,
ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has
failed to obtain any license, permit, certificate, franchise
or other governmental authorization or permit necessary to
the ownership of its property or to the conduct of its
business, which violation, breach or default or violations,
breaches or defaults, in the case of clause (i) or (ii),
singly or in the aggregate has, or would reasonably be
expected in the future to have, a material adverse effect on
the business, prospects, properties, assets, operations,
condition (financial or other), net worth or results of
operations of the Company and its subsidiaries taken as a
whole; and each such contract, agreement, instrument, lease,
license, policy, arrangement and understanding is in full
force and effect and is the legal, valid and binding
obligation of the Company or its subsidiaries, as the case
may be, and to the Company's knowledge, the other parties
thereto, and is enforceable as to the Company or its
subsidiaries, as the case may be, and to the Company's
knowledge, the other parties thereto in accordance with its
terms subject, as to enforceability, to applicable
bankruptcy, reorganization, moratorium or other similar laws
of general application affecting the rights of creditors
generally, except where such failure to be in full force and
effect or to be a legal, valid and binding obligation or to
be enforceable, as the case may be, has not had, or would
not reasonably be expected in the future to have, a material
adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net
worth or results of operations of the Company and its
subsidiaries taken as a whole.
(s) The Company has no reason to believe that the
Company and each of its subsidiaries do not own or possess
adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their
respective businesses in the manner described in the
Prospectus and have no reason to believe that the conduct of
their respective businesses will conflict with any such
rights of others.
(t) There are no contracts or other documents which
are required to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and
Regulations which have not been filed as exhibits to the
Registration Statement.
(u) Except as described in the Prospectus, since the
date as of which information is given in the Prospectus, the
Company has not (i) issued or granted any rights to acquire
any securities (other than pursuant to employee benefit
plans or other compensation plans existing on the date of
the Terms Agreement) or (ii) declared or paid any dividend
on its capital stock other than regular quarterly cash
dividends.
(v) Neither the Company, nor any of its subsidiaries,
is, nor upon consummation of the transactions contemplated
hereby will be, required to register as, or be subject to
regulation as, an "investment company" under the Investment
Company Act of 1940.
(w) The conditions for use of Form S-3, as set forth in
the General Instructions thereto, have been satisfied.
3. PURCHASE AND OFFERING OF THE SECURITIES BY THE
UNDERWRITERS. The obligation of the Underwriters to purchase the
Securities will be evidenced by an exchange of written
communications (including, without limitation, facsimile
transmissions) ("Terms Agreement") at each time the Company
determines to sell the Securities. Unless otherwise agreed by
the parties thereto, each Terms Agreement will be in the form of
Annex II(A) or (B) attached hereto and will incorporate by
reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will
be Underwriters, the names of any Representatives, the amount to
be purchased by each Underwriter, the purchase price to be paid
by the Underwriters and certain terms of the Securities and
whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date
of delivery and payment (such time and date being herein and in
the Terms Agreement referred to as the "Closing Date"), the place
of delivery and payment and any details of the terms of any
public offering that should be reflected in the Prospectus
Supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will
be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the
Prospectus. Debt Securities, if any, delivered to the
Underwriters on the Closing Date will be in definitive fully
registered form, in such denominations and registered in such
names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants contained in this
Agreement, and subject to the terms and conditions set forth in
this Agreement, the Company grants an option to the several
Underwriters to purchase, severally and not jointly, up to that
amount of the Option Securities as shall be specified in the
Terms Agreement from the Company at the same price as the
Underwriters shall pay for the Securities which the Underwriters
are committed to purchase on the Closing Date (the "Firm
Securities"). Said option may be exercised only to cover
over-allotments in the sale of the Firm Securities by the
Underwriters and may be exercised in whole or in part at any time
and from time to time on or before the thirtieth day after the
date of the Terms Agreement upon written or telegraphic notice by
the Representatives to the Company setting forth the amount of
the Option Securities as to which the several Underwriters are
exercising the option. The amount of Option Securities to be
purchased by each Underwriter in connection with each exercise of
such option shall be the same percentage of the total amount of
the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Firm Securities, as
adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes
the Underwriters to solicit offers to purchase Securities
pursuant to delayed delivery contracts substantially in the form
of Annex I attached hereto ("Delayed Delivery Contracts") with
such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be made only with institutional
investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational
and charitable institutions. On the Closing Date, the Company
will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms
Agreement in respect of the amount of Securities to be sold
pursuant to Delayed Delivery Contracts ("Contract Securities").
The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts,
the Contract Securities will be deducted from the Securities to
be purchased by the several Underwriters and the aggregate amount
of Securities to be purchased by each Underwriter will be reduced
pro rata in proportion to the amount of Securities set forth
opposite each Underwriter's name in such Terms Agreement, except
to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the
Company. The Company will advise the Representatives not later
than the business day prior to the Closing Date of the amount of
Contract Securities.
4. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Underwriters as follows:
(a) The Company agrees: (i) to prepare the Prospectus
in a form approved by the Representatives and to file such
Prospectus, including the Prospectus Supplement, pursuant to Rule
424(b) within the time period prescribed by the Rules and
Regulations; (ii) to notify the Representatives, promptly after
it receives notice, of the time when the Registration Statement
or any amendment thereto becomes effective or promptly after the
filing of any supplement or amendment to the Prospectus (other
than any Incorporated Document or any amendment or supplement
relating to an offering of securities other than the Securities)
and to furnish the Representatives with copies thereof; (iii) to
notify the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal; and (iv) not to file
any amendment to the Registration Statement or any amendment of
or supplement to the Prospectus (including the prospectus
required to be filed pursuant to Rule 424(b)) that differs from
the prospectus on file at the time of the effectiveness of the
Registration Statement or file any document under the Exchange
Act if such document would be deemed to be incorporated by
reference into the Prospectus to which the Representatives shall
reasonably object in writing after being timely furnished in
advance a copy thereof.
(b) If at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act
any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would, in the judgment of the
Underwriters or the Company include an untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply
with the Securities Act or the Rules and Regulations, or to file
under the Exchange Act, so as to comply with the Exchange Act or
the Securities Act, any document incorporated by reference in the
Registration Statement or the Prospectus or in any amendment
thereof or supplement thereto, the Company will notify the
Representatives promptly and prepare and file with the Commission
an appropriate amendment or supplement (in form and substance
satisfactory to the Representatives) which will correct such
misstatement or omission or which will effect such compliance and
will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to the
Representatives two signed copies of the Registration Statement,
including exhibits and all documents incorporated by reference
therein and all amendments thereto, and the Company will promptly
deliver to each of the Underwriters such number of copies of any
preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such
documents, if any, and all documents incorporated by reference in
the Registration Statement and Prospectus or any amendment
thereof or supplement thereto, without exhibits, as the
Representatives may reasonably request.
(d) The Company will endeavor in good faith, in
cooperation with the Representatives, at or prior to the time of
effectiveness of the Registration Statement, to qualify the
Securities for offering and sale under the securities laws of
such jurisdictions as the Representatives may designate and to
maintain such qualification in effect for so long as required for
the distribution thereof; except that in no event shall the
Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of
process.
(e) As soon as practicable but no later than 16 months
after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earning statement
of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158) covering a period of at
least twelve months beginning on the first day of the first
fiscal quarter of the Company commencing after the later of (i)
the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of
such Terms Agreement or (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement.
(f) For the period specified in the Terms Agreement,
the Company will not, (A) in the event of an offering of common
stock, preferred stock or convertible debt securities, (i) offer
for sale, sell or otherwise dispose of, directly or indirectly,
any shares of common stock of the Company or permit the
registration under the Securities Act of any shares of common
stock of the Company (other than the Securities and shares issued
pursuant to employee benefit plans, qualified stock option plans
or other employee compensation plans), (ii) sell or grant
options, rights or warrants with respect to any shares of common
stock of the Company (other than the Securities and the grant of
options pursuant to employee benefit plans), or (iii) offer for
sale, sell or otherwise dispose of, directly or indirectly, any
securities convertible into or, exchangeable or exercisable for
common stock of the Company (other than the Securities), without,
in any case, the prior written consent of the Representatives;
and, (B) in the event of an offering of Debt Securities, between
the date of the Terms Agreement and the date of delivery of the
Debt Securities, offer for sale, sell or cause to be offered for
sale or sold, without the prior written consent of the
Representatives, any debt securities which are substantially
similar to the Securities.
(g) During the period, if any, specified in the Terms
Agreement after the date of such Terms Agreement, the Company
will furnish to the Representatives copies of (i) all reports to
its shareholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the
Commission or any national securities exchange.
(h) The Company will apply the proceeds from the sale
of the Securities as set forth under "Use of Proceeds" in the
Prospectus.
(i) If the Securities include shares of common stock or
securities convertible into shares of common stock, the Company
will cause such shares to be listed on the New York Stock
Exchange.
(k) The Company, during the period when the Prospectus
is required to be delivered under the Securities Act or the
Exchange Act, will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act within the time periods required by the Exchange Act and the
rules and regulations thereunder.
5. PAYMENT OF EXPENSES. Whether or not the
transactions contemplated by any Terms Agreement are consummated
or such Terms Agreement is terminated, the Company hereby agrees
to pay all costs and expenses incident to the performance of the
obligations of the Company under such Terms Agreement (including
the provisions of this Agreement incorporated therein), including
without limitation, (i) costs and expenses of preparing,
printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof
(including all exhibits thereto), any preliminary prospectus, the
Prospectus and any amendments or supplements thereto (including,
without limitation, fees and expenses of the Company's
accountants and counsel), any Incorporated Documents and any
amendments or supplements thereto the underwriting documents
(including this Agreement, and any Agreement Among Underwriters
and Selling Agreement) and all other documents related to the
public offering of the Securities (including those supplied to
the Underwriters in quantities as hereinabove stated); (ii) costs
and expenses in connection with the issuance, transfer and
delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon; (iii) costs and expenses
in connection with the qualification of the Securities under
state or foreign securities or Blue Sky laws, including the costs
of printing and mailing a preliminary and final "Blue Sky Survey"
and the fees of counsel for the Underwriters and such counsel's
disbursements in relation thereto; (iv) fees and expenses in
connection with listing shares of common stock, and other
Securities, if any, on the New York Stock Exchange or other
securities exchange, as the case may be; (v) filing fees of the
Commission and the National Association of Securities Dealers,
Inc. (the "NASD"), if any; (vi) the cost of printing certificates
representing the Securities; (vii) the fees paid to rating
agencies in connection with the rating of the Securities; (viii)
the reasonable fees and disbursements of the Trustee and any
transfer agent and their respective counsel; and (ix) all other
reasonable costs and expenses incident to the performance of the
obligations of the Company under the Terms Agreement (including
the provisions of this Agreement).
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the
Securities as provided herein, shall be subject to the accuracy
of the representations and warranties of the Company herein
contained, as of the date of the applicable Terms Agreement and
as of the Closing Date (for purposes of this Section 6 "Closing
Date" shall refer to the Closing Date for the Firm Securities and
the date of delivery, if different, for any Option Securities, to
the absence from any certificates, opinions, written statements
or letters furnished to the Representatives or to Xxxxxxx Xxxxxxx
& Xxxxxxxx (a partnership which includes professional
corporations) ("Underwriters' Counsel") pursuant to this Section
6 of any misstatement or omission to state a material fact, to
the performance by the Company of its obligations hereunder, and
to the following additional conditions:
(a) The Prospectus as amended or supplemented shall
have been filed with the Commission pursuant to Rule 424(b) under
the Securities Act within the applicable time period prescribed
for such filing by the Rules and Regulations and in accordance
with Section 4(a); no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have
been complied with. No Underwriter shall have discovered and
disclosed to the Company on or prior to the Closing Date that the
Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which,
in the opinion of Underwriters' Counsel is material or omits to
state a fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(b) At the Closing Date, the Representatives shall have
received the opinion of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the
Company, dated the Closing Date addressed to the Underwriters
and in form and substance satisfactory to Underwriters' Counsel,
to the effect that:
[FN]
Where appropriate, opinions may be divided between Xxxxxxxxxx
Xxxxxxxx LLP and Xxxxx X. Xxxxxxxx, Esq., Corporate Vice
President and General Counsel.
(i) Each of the Company and its subsidiaries
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes
such qualification necessary, except for those failures to
be so qualified or in good standing which would not in the
aggregate be reasonably expected to have a material adverse
effect on the Company and its subsidiaries taken as a whole.
Each of the Company and its subsidiaries has the corporate
power to own, lease and license its respective properties
and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus.
All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable
and were not issued in violation of or subject to any
preemptive rights, and are owned directly or indirectly by
the Company, free and clear of any lien, encumbrance, claim,
security interest, restriction on transfer, shareholders'
agreement, voting trust or other defect of title whatsoever.
(ii) The authorized and outstanding capital stock of
the Company is as set forth in the Registration Statement
and the Prospectus. All of the outstanding shares of
capital stock of the Company are duly and validly authorized
and issued, fully paid and nonassessable and were not issued
in violation of or subject to any preemptive rights.
(iii) The shares of common stock and preferred stock,
if any, of the Company described in the Terms Agreement have
been duly authorized by the Company and, when issued and
paid for pursuant to the Terms Agreement, will be duly and
validly issued, fully paid and non-assessable and will not
have been issued in violation of or be subject to any
preemptive rights.
(iv) The Indenture, if any, described in the Terms
Agreement has been duly authorized, executed and delivered
by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee under the
Indenture) constitutes the valid and legally binding
obligation of the Company, enforceable against the Company
in accordance with its terms.
(v) The Debt Securities, if any, described in the
Terms Agreement have been duly authorized by the Company
and, when the terms of the Debt Securities and of their
issuance and sale have been duly established in accordance
with the Indenture, this Agreement and the Terms Agreement,
and the Debt Securities have been duly executed,
authenticated, issued and delivered in the manner provided
in the Indenture and paid for in accordance with this
Agreement and the Terms Agreement, the Debt Securities will
be duly and validly issued and delivered by the Company and
will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture;
if any Securities to be issued are convertible, the shares
of common stock issuable upon conversion thereof have been
duly authorized by the Company, have been duly reserved for
issuance upon conversion of the Securities and, when issued
upon the conversion of the Securities, will be duly and
validly issued, fully paid and non-assessable and will not
have been issued in violation of or subject to any
preemptive rights.
(vi) The Securities, other than any Contract
Securities, the Indenture and the capital stock of the
Company conform, and any Contract Securities, when issued,
delivered and sold, will conform, in all material respects
to the descriptions thereof contained or incorporated by
reference in the Registration Statement and the Prospectus;
and the provisions of the contracts, agreements and
instruments (as the same may be in effect on the Closing
Date) summarized in the Prospectus, any supplement thereto
or any document incorporated by reference therein, conform
in all material respects to the descriptions thereof in the
Prospectus, any supplement thereto or any document
incorporated by reference therein;
(vii) The Company has the corporate power to execute,
deliver and perform its obligations under the Terms
Agreement, this Agreement and any Delayed Delivery Contracts
and to consummate the transactions contemplated hereby and
thereby, and the Terms Agreement, this Agreement and any
Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(viii) There is no litigation or governmental
proceeding to which the Company or any of its subsidiaries
is a party, or to which any property of the Company or any
of its subsidiaries is subject, which is pending or, to the
best of such counsel's knowledge, threatened against the
Company or any of its subsidiaries, which is of a character
required to be disclosed in the Registration Statement and
the Prospectus which has not been properly disclosed
therein.
(ix) The execution, delivery and performance of the
Terms Agreement (including the provisions of this Agreement)
by the Company and the consummation of the transactions
contemplated hereby and thereby and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities,
including the issuance, sale and delivery of the Securities
to be issued, sold and delivered by the Company on the
Closing Date, do not and will not (i) conflict with or
result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any agreement,
instrument, franchise, license or permit known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
any of their respective properties or assets may be bound or
(ii) violate or conflict with any provision of the articles
of incorporation or by-laws of the Company or any of its
subsidiaries or any judgment, decree, order, statute, rule
or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their
respective properties or assets.
(x) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties or
assets is required for the execution, delivery and
performance of the Terms Agreement (including the provisions
of this Agreement) by the Company and the consummation of
the transactions contemplated hereby and thereby and
compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement and the
Securities, including the issuance, sale and delivery of the
Securities to be issued, sold and delivered by the Company
on the Closing Date, except the registration under the Act
of the Securities and such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required
under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the
Underwriters.
(xi) To the best of such counsel's knowledge, neither
the Company nor any of its subsidiaries is (i) in violation
or breach of, or default (disregarding any grace or notice
provision) with respect to any material provision of any
contract, agreement, instrument, lease, license or permit
known to such counsel to which the Company or any of its
subsidiaries is a party, or (ii) in violation of any law,
ordinance, governmental rule, regulation or court decree to
which the Company or any of its subsidiaries or their
respective properties or assets may be subject, which
violations, breaches or defaults, in the case of clause (i)
or (ii), singly or in the aggregate, have or can reasonably
be expected in the future to have, a material adverse effect
on the business, prospects, properties, assets, operations,
condition (financial or other) or results of operations of
the Company and its subsidiaries taken as a whole.
(xii) At the Effective Time, the Registration
Statement (including all documents incorporated by reference
therein) complied, and on the date of the Terms Agreement,
the Prospectus (including all documents incorporated by
reference therein) complies, and any further amendments or
supplements thereto made by the Company on or prior to the
date of such opinion comply (other than, in each case, the
financial statements and related schedules and other
financial and statistical data included or incorporated by
reference therein and the Form T-1 under the Trust Indenture
Act, as to which such counsel need express no opinion) as to
form in all material respects with the requirements of the
Securities Act, the Exchange Act and the applicable rules
and regulations under said Acts.
(xiii) To such counsel's knowledge, there are no
contracts or other documents which are required to be filed
as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been so
filed.
(xiv) The Registration Statement is effective under
the Securities Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have
been initiated or threatened by the Commission and all
filings required by Rule 424(b) of the Rules and Regulations
have been made.
(xv) To such counsel's knowledge, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the
Registration Statement, or, except as described in the
Prospectus or Schedule B to the Terms Agreement, to require
the Company to file any other registration statement under
the Securities Act (other than a registration statement on
Form S-8) with respect to any securities of the Company
owned or to be owned by such person or to require the
Company to include such securities in any securities being
registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(xvi Neither the Company, nor any of its subsidiaries,
is, nor upon consummation of the transactions contemplated
hereby will be, required to be registered as, or subject to
regulation as, an "investment company" under the Investment
Company Act of 1940, as amended.
In addition, such opinion shall also contain a
statement that such counsel has participated in conferences with
officers and representatives of the Company, representatives of
Xxxxxx Xxxxxxxx LLP, the Underwriters and Underwriters' Counsel
at which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and no facts have
come to the attention of such counsel which would lead such
counsel to believe that either the Registration Statement, as of
the Effective Time, or, if later, as of the date of the Company's
most recent filing of an Annual Report on Form 10-K (including
such Annual Report on Form 10-K), contained or any amendment
thereof made prior to the Closing Date, as of the date of such
amendment, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus as of its date (or any amendment thereof or
supplement thereto made prior to the Closing Date, as of the date
of such amendment or supplement) and as of the Closing Date,
contained or contains an untrue statement of a material fact or
omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (it
being understood that such counsel need express no belief or
opinion with respect to the financial statements and schedules
and other financial or statistical data included or incorporated
by reference therein).
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws other than the laws
of the United States and jurisdictions in which they are
admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to
Underwriters' Counsel, familiar with the applicable laws; (B) as
to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and
certificates or other written statements of officers of
departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the
Company and its subsidiaries, provided that copies of any such
statements or certificates shall be delivered to Underwriters'
Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form
satisfactory to such counsel and, in the opinion of such counsel
to the Company, the Representatives and they are justified in
relying thereon. Counsel for the Company may also state that
their opinions set forth in subparagraphs (iv) and (v) above are
subject to the qualification that the enforceability of the
Company's obligations under the Indenture and the Securities may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) or by an implied covenant of good faith and fair dealing.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Terms Agreement, the Indenture, if any, described
in the Terms Agreement, the Securities, the Registration
Statement and the Prospectus, and all other legal matters
relating to this Agreement and the Terms Agreement and the
transactions contemplated hereby and thereby shall be
satisfactory in all material respects to the Representatives and
Underwriters' Counsel; and the Underwriters shall have received
from said Underwriters' Counsel a favorable opinion, dated as of
the Closing Date with respect to the issuance and sale of the
Securities, the Registration Statement and the Prospectus and
such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to Underwriters'
Counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) At the Closing Date, the Representatives shall
have received a certificate of the [Chief Financial Officer] and
the [________] of the Company, dated the Closing Date to the
effect that (i) the conditions set forth in subsection (a) of
this Section 6 have been satisfied, (ii) as of the date hereof
and as of the Closing Date, the representations and warranties of
the Company set forth in this Agreement are true and correct in
all material respects, (iii) as of the Closing Date, all
obligations and conditions to be performed or complied with by
the Company on or prior thereto have been duly performed or
complied with in all material respects, (iv) they have examined
the Registration Statement and the Prospectus and, in their
opinion, (A) as of the Effective Date, the Registration Statement
did not contain an untrue statement of a material fact and did
not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and,
as of the date of such certificate, the Prospectus does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or
amendment to the Registration Statement or Prospectus which has
not been set forth in such a supplement or amendment, and (v)
subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the
Company or its subsidiaries have not sustained any material loss
or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has not been a
material adverse change or a development involving a prospective
material adverse change in the business, prospects, properties,
operations, condition (financial or other), net worth or results
of operations of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except in each case as described in or
contemplated by the Prospectus.
(e) At the time this Agreement is executed and at the
Closing Date, the Representatives shall have received a letter
from Xxxxxx Xxxxxxxx LLP, independent public accountants for the
Company, dated, respectively, as of the date of the Terms
Agreement and as of the Closing Date addressed to the
Underwriters and in form and substance satisfactory to the
Representatives, in each case of the type described in the
American Institute of Certified Public Accountants' Statement on
Auditing Standards No. 72, and covering such additional financial
statement items and procedures (including a review of interim
financial statements specified in the American Institute of
Certified Public Accountants' Statement on Auditing Standards
No. 71) as the Representatives may reasonably request, and each
such letter shall further state:
(i) whether, with respect to the period subsequent to
the date of the most recent consolidated balance sheet of
the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus
there have been, as of the date of the most recent available
monthly consolidated financial statements of the Company and
its subsidiaries, if any, and as of a specified date not
more than five days prior to the date of such letter, any
changes in the capital stock or consolidated long-term
indebtedness of the Company or any decrease in the
consolidated net current assets or stockholders' equity of
the Company, in each case as compared with the amounts shown
in the most recent balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus,
except for changes or decreases which the Registration
Statement and the Prospectus disclose have occurred or may
occur or which are set forth in such letter or during the
period from the date of the most recent consolidated balance
sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus to the date of the most recent available
monthly consolidated financial statements of the Company and
its subsidiaries, if any, and to a specified date not more
than five days prior to the date of such letter, there were
any decreases, as compared with the corresponding period in
the preceding fiscal year, in total revenues, or in total or
per share net income, except for decreases which the
Registration Statement and the Prospectus disclose have
occurred or may occur or which are set forth in such letter;
and
(ii) their conclusions with respect to specific dollar
amounts, numbers of shares, percentages of revenues and
earnings, and other financial information pertaining to the
Company and its subsidiaries set forth or incorporated by
reference in the Registration Statement and the Prospectus,
which have been specified by the Representatives prior to
the date of the Terms Agreement.
(f) Prior to the Closing Date the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(h) At the Closing Date, any shares of common stock
included in or issuable upon conversion of the Securities shall
have been approved for listing on the New York Stock Exchange
upon notice of issuance.
If any of the conditions specified in this Section 6
shall not have been fulfilled when and as required by this
Agreement, or if any of the certificates, opinions, written
statements or letters furnished to the Representatives or to
Underwriters' Counsel pursuant to this Section 6 shall not be in
all material respects reasonably satisfactory in form and
substance to the Representatives and to Underwriters' Counsel,
all obligations of the Underwriters hereunder may be cancelled by
the Representatives at, or at any time prior to, the Closing Date
and the obligations of the Underwriters to purchase the Option
Securities may be cancelled by the Representatives at, or at any
time prior to, the agreed upon date of delivery thereof. Notice
of such cancellation shall be given to the Company in writing, or
by telephone, telex or telegraph, confirmed in writing.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to Underwriters'
Counsel.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act against any and all
losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of
any claim or litigation), joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus or the Prospectus, or in
any supplement thereto or amendment thereof, or arise out of or
are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however,
that the Company will not be liable in any such case to the
extent but only to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any
Preliminary Prospectus or the Prospectus or in any such
supplement or amendment in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
any Underwriter through the Representatives expressly for use
therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, including under
this Agreement.
(b) Each Underwriter severally, and not jointly,
agrees to indemnify and hold harmless the Company, each of the
directors of the Company, each of the officers of the Company who
shall have signed the Registration Statement, and each other
person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to
attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly
or several, to which they or any of them may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions
in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made
in the Registration Statement, any Preliminary Prospectus or the
Prospectus or in any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives expressly for use therein; provided, however,
that in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable
to the Securities purchased by such Underwriter under the Terms
Agreement. This indemnity will be in addition to any liability
which any Underwriter may otherwise have, including under this
Agreement.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall
not relieve it from any liability which it may have under this
Section 7). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such
indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have
been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying
parties (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees
and expenses shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any
claim or action effected without its written consent; provided,
however, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in
circumstances in which the indemnification provided for in this
Section 7 is for any reason held to be unavailable from any
indemnifying party or is insufficient to hold harmless a party
indemnified thereunder, each indemnifying party shall contribute
to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claims asserted, but
after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution
received by the Company from persons, other than the
Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act,
officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company and
one or more of the Underwriters may be subject, in such
proportions as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Securities or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in
this Section 7, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the
relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to
be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the
Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this
Section 7(d), (i) in no case shall the liability or
responsibility of any Underwriter to indemnify or contribute
under this Section 7 exceed the lesser of (x) the underwriting
discount or commission applicable to the Securities purchased by
such Underwriter under the Terms Agreement, or (y) 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 that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7(d),
each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each
director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i)
and (ii) of this Section 7(d). Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may
have under this Section 7(d) or otherwise. No party shall be
liable for contribution with respect to any action or claim
settled without its consent; provided, however that such consent
was not unreasonably withheld.
(e) The Underwriters severally confirm that the
statements with respect to the public offering of the Securities
set forth on the cover page of, and under the caption
"Underwriting" in, the Prospectus are correct and constitute the
only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
(f) The agreements contained in Sections 4(e), 4(g), 5
and this Section 7 and the representations and warranties of the
Company in Section 2 (as made as of the date of the Terms
Agreement incorporating this Agreement) shall survive the
delivery of the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of the
Terms Agreement incorporating the terms of this Agreement or any
investigation made by or on behalf of any indemnified party.
8. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter or Underwriters shall default
in its or their obligation to purchase Securities under the Terms
Agreement, and if the Securities with respect to which such
default relates do not (after giving effect to arrangements, if
any, made by the Representatives pursuant to subsection (b)
below) exceed in the aggregate 10% of the number of shares or
aggregate principal amount, as the case may be, of the Firm
Securities or Option Securities, as the case may be, then the
Firm Securities or Option Securities, as the case may be, to
which the default relates shall be purchased by the
non-defaulting Underwriters in the respective proportions which
the number of shares or principal amount of Firm Securities set
forth opposite their respective names in the schedule attached to
the Terms Agreement bears to the aggregate number of shares or
aggregate principal amount of Firm Securities set forth opposite
the names of all non-defaulting Underwriters.
(b) In the event that such default relates to more
than 10% of the aggregate number of shares or aggregate principal
amount, as the case may be, of Firm Securities or Option
Securities, as the case may be, the Representatives may in their
discretion arrange for the Underwriters or for another party or
parties (including any non-defaulting Underwriter or Underwriters
who so agree) to purchase such Firm Securities or Option
Securities to which such default relates on the terms contained
herein. In the event that within 5 calendar days after such a
default the Representatives do not arrange for the purchase of
the Firm Securities or Option Securities, as the case may be, to
which such default relates as provided in this Section 8, the
Terms Agreement or, in the case of a default with respect to the
Option Securities, the obligations of the Underwriters to
purchase and of the Company to sell the Option Securities shall
thereupon terminate, without liability on the part of the Company
with respect thereto (except in each case as provided in Sections
5, 7(a), 7(c) and 7(d) hereof) or the Underwriters, but nothing
in this Agreement shall relieve a defaulting Underwriter or
Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or
their default hereunder.
(c) In the event that the Firm Securities or Option
Securities to which the default relates are to be purchased by
the non-defaulting Underwriters, or are to be purchased by
another party or parties as aforesaid, the Representatives or the
Company shall have the right to postpone the Closing Date or date
of delivery of the Option Securities, as the case may be, for a
period, not exceeding five business days, in order to effect
whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other
documents and arrangements, and the Company agrees to file
promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of
Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in the Terms Agreement
(including this Agreement) shall include any party substituted
under this Section 8 with like effect as if it had originally
been a party to the Terms Agreement with respect to such Firm
Securities or Option Securities.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
representations and warranties, covenants and agreements of the
Underwriters and the Company contained in the Terms Agreement
(including this Agreement), including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and
the contribution agreements contained in Section 7, shall remain
operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any
of its officers and directors or any controlling person thereof,
and shall survive delivery of and payment for the Securities and
any Option Securities to and by the Underwriters. The
representations contained in Section and the agreements
contained in Sections 4(e), 4(g), 5, 7, and 10(c) hereof shall
survive the termination of this Agreement, including termination
pursuant to Section 8 or 10 hereof.
10. EFFECTIVE DATE AND TERMINATION. (a) The
Representatives shall have the right to terminate the Terms
Agreement at any time prior to the Closing Date or the
obligations of the Underwriters to purchase the Option Securities
at any time prior to the agreed upon date of delivery thereof, as
the case may be:
(i) if, subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, the Company or its subsidiaries shall have
sustained any material loss or interference with their
respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal
or governmental proceeding, or there shall have been a
material adverse change or a development involving a
prospective material adverse change in the business,
prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except in
each case as described in or contemplated by the Prospectus;
(ii) if (A) any domestic or international event or act
or occurrence shall have materially disrupted, or in the
opinion of the Representatives will in the immediate future
materially disrupt, the market for the Company's securities
or securities in general; or (B) trading on the New York
Stock Exchange, the American Stock Exchange or the NASDAQ
National Market System shall have been suspended, or minimum
or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been
required, on either such Exchange or the NASDAQ National
Market System by either such exchange, by the NASD or by
order of the Commission or any other governmental authority
having jurisdiction; or (C) a banking moratorium shall have
been declared by a state or federal authority or any new
restriction materially adversely affecting the distribution
of the Securities or the Option Securities shall have become
effective; or
(iii) if (A) any downgrading in the rating of the
Company's debt securities or preferred stock by any
"nationally recognized statistical rating-organization" (as
defined for purposes of Rule 436(g) under the Securities
Act) shall occur, or (B) any such organization shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of
the Company's debt securities or preferred stock; or
(iv) if (A) the United States shall become engaged in
hostilities or there shall be an escalation of hostilities
involving the United States or there shall be a declaration
of a national emergency or war by the United States or (B)
there shall have been a change in political, financial or
economic conditions, and the effect of any such event in (A)
or (B) is such as to make it in the sole judgment of the
Representatives impracticable or inadvisable to proceed with
the offering, sale and delivery of the Securities or the
Option Securities on the terms contemplated by the
Prospectus.
(b) Any notice of termination pursuant to this Section
10 shall be by hand delivery, telephone (confirmed in writing) or
facsimile transmission.
(c) If the Terms Agreement shall be terminated
pursuant to any of the provisions thereof or hereof (otherwise
than pursuant to Section 8(b) hereof), or if the sale of the
Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein
is not satisfied or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or
comply with any provision hereof, the Company will, upon demand
by the Representatives, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of the
Underwriters' Counsel), incurred by the Underwriters in
connection herewith.
11. NOTICES, ETC. All communications hereunder,
except as may be otherwise specifically provided herein, shall be
in writing and, if sent to any Underwriter, shall be hand
delivered, or sent by facsimile transmission, to such
Underwriter, in care of the Representatives at the address
specified in the Terms Agreement; if sent to the Company, shall
be hand delivered or sent by facsimile transmission to the
Company, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000,
Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) shall be given to such
Underwriter at its address set forth in its acceptance to the
Representatives, which address will be supplied to any other
party hereto by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect at
the time of receipt thereof.
12. PARTIES. The Terms Agreement (including the
provisions of this Agreement) shall inure to the benefit of and
be binding upon the Underwriters and the Company and their
respective successors. The Terms Agreement (including the
provisions of this Agreement) are for the sole benefit of only
those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company contained in this
Agreement also shall be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act and (B) the indemnity agreement of the
Underwriters contained in Section 7(b) of this Agreement shall be
deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration
Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred
to in this Section 12, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
contained in this Agreement. No purchaser of Securities from any
Underwriter shall be deemed to be a successor solely by reason of
such purchase.
13. GOVERNING LAW. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with
the laws of the State of New York, but without regard to
principles of conflicts of law.
14. DEFINITION OF THE TERM "BUSINESS DAY". For
purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange is open for trading.
15. COUNTERPARTS. The Terms Agreement may be executed
in counterparts and each such counterpart shall be deemed to be
an original but all such counterparts shall together constitute
one and the same instrument.
16. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of,
or to affect the meaning or interpretation of, this Agreement.
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not later
than 9:00 A.M., New York time, on ________, 19_**.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
EQUIFAX INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from EQUIFAX
INC., a Georgia corporation ("Company"), and the Company agrees
to sell to the undersigned. [If one delayed closing, insert --
as of the date hereof, for delivery on ________, 19__ ("Delivery
Date").]
[$]________
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated
________, 19__ and a Prospectus Supplement dated ________, 19__,
relating thereto, receipt of copies of which is hereby
acknowledged, at ____% of the principal amount thereof plus
accrued interest from ________, 19__, if any, and on the further
terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of
the date hereof, for delivery on the dates set forth below.
Securities in the principal amounts set forth below:
Delivery Date Principal Amount
__________________ [$]____________
__________________ [$]____________
**/ Insert date which is third full business day prior to
Closing Date under the Terms Agreement.
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has
agreed to purchase for delivery on [the] [each] Delivery Date
shall be made to the Company or its order by certified or
official bank check in [New York Clearing House (next day)] funds
at the office of ________ at 10:00 A.M. on the Delivery Date upon
delivery to the undersigned of the Securities to be purchased by
the undersigned for delivery on such Delivery Date in definitive
fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than
five full business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the
undersigned; that the purchase hereunder of Securities is to be
regarded in all respects as a purchase as of the date of this
Contract; that the obligation of the Company to make delivery of
and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on [the] [each]
Delivery Date shall be subject only to the conditions that (1)
investment in the Securities shall not at such Delivery Date be
prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this
and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the
Underwriters the Company will mail or deliver to the undersigned
at its address set forth below, notice to such effect,
accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
3
It is understood that the acceptance of any such
Contract is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served
basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
contract between the Company and the undersigned when such
counterpart is so mailed or delivered.
Yours very truly,
______________________________
(Name of purchaser)
By,___________________________
(Title of Signatory)
______________________________
______________________________
(Address of Purchaser)
Accepted, as of the above date,
EQUIFAX INC.
By_________________________________
Name:
Title:
ANNEX II (A)
EQUIFAX INC.
("Company")
Debt Securities
TERMS AGREEMENT
, 19__
Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to
purchase, on and subject to the terms and conditions of the
Underwriting Agreement Basic Provisions of the Company attached
hereto (the "Underwriting Agreement"), the following securities
("Securities") to be issued under an indenture, dated _________,
19__, between the Company and ____________, as Trustee, on the
following terms:
Title: [ %] [Floating Rate] [Senior] ]Subordinated] [Notes]
[Debentures]
Due __
Principal Amount: [$]
Interest: [ % per annum, from ____, 19__, payable semiannually on
___________ and commencing ________________, 19__, to holders of
record on the preceding ______ or _______ , as the case may be.]
[Zero coupon]
MATURITY: _________, 19__.
OPTIONAL REDEMPTION:
SINKING FUND:
PERIOD DESIGNATED PURSUANT TO SECTION 4(G) OF THE
UNDERWRITING AGREEMENT: __ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(I) OF THE
UNDERWRITING AGREEMENT: __ days.
[CONVERSION PROVISIONS]:
[Other Terms]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall
be __________, 19__. Underwriters' fee is __% of the principal
amount of the Contract Securities.]
PURCHASE PRICE: _% of principal amount, plus accrued
interest [, if any,] from __________, 19__.
EXPECTED REOFFERING PRICE: _% of principal amount, subject
to change by the undersigned.
2
CLOSING DATE: ________ A.M. on _________, 19__, at
___________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite
their names in Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and
reduce the aggregate principal amount to be purchased by the
Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional
Underwriters.]
The significant subsidiaries (as defined in Rule 405 under
the Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are
incorporated herein by reference [IF APPROPRIATE. INSERT--,
except that the obligations and agreements set forth in Section 8
("Defaulting Underwriters") of the Underwriting Agreement shall
not apply to the obligations of the Underwriters to purchase the
above Securities].
The Securities will be made available for checking and
packaging at the office of ______________ at least 24 hours prior
to the Closing Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to
us.]
3
[Please signify your acceptance of the foregoing by return
wire not later than ___________P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of
[themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By___________________________
Name:
Title:
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
$____________
_________
Total . . . . . . . . . . . . . . . . . . . [$]
SCHEDULE B
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire],
dated ____________, 19__, relating to [$]___________ principal
amount of our [Insert title of Securities] (the "Terms
Agreement"). We also confirm that, to the best of our knowledge
after reasonable investigation, the representations and
warranties of the undersigned contained in Section 2 of the
Underwriting Agreement Basic Provisions of the Company referred
to in the Terms Agreement (together with the Terms Agreement, the
"Underwriting Agreement"), are true and correct, no stop order
suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been (or in the case of
a form of prospectus filed pursuant to Rule 424(b)(2) or (5)
there will be, as of the date of such prospectus) no
material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except
as set forth in or contemplated by the Prospectus.
Very truly yours,
EQUIFAX INC.
By________________
Name:
Title:
ANNEX 11 (B)
EQUIFAX INC.
("Company")
Equity Securities
TERMS AGREEMENT
, 19__
Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to
purchase, on and subject to the terms and conditions of the
Underwriting Agreement Basic Provisions of the Company attached
hereto (the "Underwriting Agreement"), the following securities
("Securities") on the following terms:
TITLE: [Common Stock] [Preferred Stock, Series _______]
NUMBER OF SHARES TO BE ISSUED: [____ shares]
[For Preferred Stock:
VOTING RIGHTS:
PREFERRED STOCK DIVIDENDS: [cash dividends of $ to $ per
share payable quarterly in arrears on _______ __, ______ __,
______ __ and ______ __.]
OPTIONAL REDEMPTION:
MANDATORY REDEMPTION/SINKING FUND:
LIQUIDATION PREFERENCE: [$___ per share plus ______].
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange]
[NASDAQ National Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(G) OF THE
UNDERWRITING AGREEMENT: ___ days.
PERIOD DESIGNATED PURSUANT TO SECTION 4(I) OF THE
UNDERWRITING AGREEMENT: ___ days.
[CONVERSION PROVISIONS]:
[Other Terms]
PRICE TO PUBLIC: $____ per share
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
2
OVER-ALLOTMENT OPTION:
CLOSING DATE: _______ A.M. on _______, 19__. at ________ in
New York [Clearing House (next day)] [Federal (same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
[FOR COMMON STOCK:
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange]
[NASDAQ National Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(G) OF THE
UNDERWRITING AGREEMENT: __ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(I) OF THE
UNDERWRITING AGREEMENT: __ days.
[Other Terms]
PRICE TO PUBLIC: $________per share
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE:_________ A.M. on ___________, 19__, at
______________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
The respective shares of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and
reduce the number of shares to be purchased by the Underwriters
listed in Schedule A hereto by the number of shares to be
purchased by such additional Underwriters.]
The significant subsidiaries (as defined in Rule 405
under the Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are
incorporated herein by reference [IF APPROPRIATE, INSERT--,
except that the obligations and agreements set forth in Section 8
("Defaulting Underwriters") of the Underwriting Agreement shall
not apply to the obligations of the Underwriters to purchase the
above Securities].
3
The Securities will be made available for checking and
packaging at the office of ____________ at least 24 hours prior
to the Closing Date.
4
[Please signify your acceptance of our offer by signing
the enclosed response to us in the space provided and returning
it to us.]
[Please signify your acceptance of the foregoing by
return wire not later than P.M. today.]
Very truly yours.
[Insert name(s) of Representatives
or Underwriters] [On behalf of
[themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By__________________________
Name:
Title:
SCHEDULE A
Number of
Underwriter Shares
_______
Total . . . . . . . . . . . . . . . . . . .
SCHEDULE B
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire],
dated ____, 19 , relating to _____________ shares of our [Insert
title of Securities] (the "Terms Agreement"). We also confirm
that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the
undersigned contained in Section 2 of the Underwriting Agreement
Basic Provisions of the Company referred to in the Terms
Agreement (together with the Terms Agreement, the "Underwriting
Agreement"), are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the
Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to
the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the
Prospectus (as defined in the Underwriting Agreement), there has
been (or in the case of a form of prospectus filed pursuant to
Rule 424(b)(2) or (5) there will be, as of the date of such
prospectus) no material adverse change in the financial position
or results of operations of the undersigned and its subsidiaries
except as set forth in or contemplated by the Prospectus.
Very truly yours.
EQUIFAX INC.
By ______________________
Name:
Title:
(i) Neither the Company nor any of its subsidiaries
shall have sustained, since the date of the latest audited
financial statements included or incorporated by reference
in the Prospectus, any 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 (ii) since such date there shall not have
been any material change in the capital stock or long-term
debt of the Company or any of its subsidiaries (otherwise
than as set forth or contemplated in the Prospectus or in a
supplement thereto) or any change in or affecting, or any
adverse development which affects, the business, properties,
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, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered
on the Closing Date on the terms and in the manner
contemplated herein or in the Prospectus or in a supplement
thereto.
Subsequent to the execution and delivery of the
Terms Agreement there shall not have occurred any of the
following: (i) trading in securities generally on the New
York Stock Exchange, Inc. (the "NYSE"), the American Stock
Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred a
material adverse change in general economic, political or
financial conditions the result of which, in the case of
each of clauses (i)-(iv), makes it (or, in the case of
clause (iv), the effect of international conditions on the
financial markets in the United States shall be such that),
in the judgment of the Representatives, impracticable or
inadvisable to proceed with the delivery of the Securities.
Subsequent to the execution and delivery of the
Terms Agreement, (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities.
DRAFT
AS OF MARCH 1996 OCTOBER 1997
FORM I COMMON STOCK
PRIMARY OFFERINGS
Shares of Common Stock
FORM II - CORPORATE DEBT
- REGISTERED OFFERINGS
[NAME OF COMPANY]
UNDERWRITING AGREEMENT
[Date]
BEAR, XXXXXXX & CO. INC.
[ ]
as Representative[s] of the
several Underwriters named in Schedule I attached hereto
[c/o Bear, Xxxxxxx & Co. Inc.]
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
________, a corporation organized and existing under
the laws of ________ (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of ________ shares (the "[Firm]
Shares") of its common stock, par value ____ per shares (the
"Common Stock") [and, for the sole purpose of covering the
principal amount of ________ (the "Securities"), to be issued
under an indenture (the "Indenture" dated ________ between the
Company and over allotments in connection with the sale of the
Firm Shares, at the option of the Underwriters, up to an
additional ________ shares (the "Additional Shares") of Common
Stock. The Firm Shares and any Additional Shares purchased by
the Underwriters are referred to herein as the "Shares"] The
Shares are more fully described in the Registration Statement
referred to below. ________, as trustee (the "Trustee"), as
follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to, and agrees with, the
Underwriters that: (a) The Company has filed with the Securities
and Exchange Commission (the "Commission") a registration
statement, and may have filed an amendment or amendments thereto,
on Form ______ (No. 33-______), for the registration of the
Sharecurities under the Securities Act of 1933, as amended (the
"Act"). Such registration statement, including the prospectus,
financial statements and schedules, exhibits and all other
documents filed as a part thereof, as amended at the time of
effectiveness of the registration statement, including any
information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434
of the Rules and Regulations of the Commission under the
Securities Act (the "Regulations"), is herein called the
"Registration Statement" and the prospectus, in the form first
filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations or filed as part of the Registration Statement at
the time of effectiveness if no Rule 424(b) or Rule 434 filing is
required, is herein called the "Prospectus". The term
"preliminary prospectus" as used herein means a preliminary
prospectus as described in Rule 430 of the Rules and Regulations.
[Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of [Form S-3] [Form S-2] which were filed
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") [on or before the effective date of the
Registration Statement, the date of such preliminary prospectus
or the date of the Prospectus, as the case may be, and any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include (i) the filing of any document under the Exchange
Act after the effective date of the Registration Statement, the
date of such preliminary prospectus or the date of the
Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed.***]]****
(b) At the time of the effectiveness of the
Registration Statement or the effectiveness of any post-effective
amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b) or Rule
434 of the Rules and Regulations, when any supplement to or
amendment of the Prospectus is filed with the Commission [,when
any document filed under the Exchange Act is filed] ** andand at
the Closing Date [and the Additional Closing Date, if any,] (as
hereinafter [respectively] defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements
thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act and the Rules and
Regulations [and the Exchange Act and the respective rules and
regulations thereunder]***** and does not or will not contain an
untrue statement of a material fact and does not or will not omit
to state any material fact required to be stated therein or
_______________________
***/ To be used in connection with registration statements on
Form S-3.
****/ To be used in connection with registration statements on
Forms S-2 and S-3.
*****/ To be used in connection with registration statements on
Forms S-2 and S-3.
necessary in order to make the statements therein (i) in the case
of the Registration Statement, not misleading and (ii) in the
case of the Prospectus, in light of the circumstances under which
they were made, not misleading.****** When any related
preliminary prospectus was first filed with the Commission
(whether filed as part of the registration statement for the
registration of the Sharecurities or any amendment thereto or
pursuant to Rule 424(a) of the Rules and Regulations) and when
any amendment thereof or supplement thereto was first filed with
the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act and the
Rules and Regulations [and the Exchange Act and the respective
rules and regulations thereunder]******* and did not contain an
untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein in light of the circumstances
under which they were made not misleading. No representation and
warranty is made in this subsection (b), however, with respect to
any information contained in or omitted from the
RegisRegistration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter or the Trustee through you as herein stated expressly
for use in connection with the preparation thereof. If Rule 434
is used, the Company will comply with the requirements of Rule
434.
(s) The Company and its subsidiaries have good
and marketable title to all real and material assets disclosed in
the Registration Statement and Prospectus as being owned by them,
free and clear of all liens, mortgages, claims, security
interests or other encumbrances, except such as are disclosed in
the Registration Statement and Prospectus and except for liens
incurred in the ordinary course of business which do not
materially effect the use or value thereof; property held under
lease by the Company or its subsidiaries is held by them under
valid, subsisting and binding leases with only such exceptions
with respect to any particular lease as do not interfere in any
material respect with the conduct of the business of the Company
and its subsidiaries taken as a whole or as do not materially
affect the value of such property as used by the Company or are
not material in amount and do not interfere in any material
respect with the use of the property or the conduct of the
business of the Company and its subsidiaries taken as a whole.
(t) The Company and its subsidiaries have filed
all necessary federal, state, local and foreign income, franchise
and sales tax returns and have paid all taxes shown thereon as
_________________________
******/ If the offering is registered on a Form S-2
registration statement and the Company elects to
deliver its annual report to shareholders in lieu of
including in the Prospectus certain disclosures, then
additional representations might be appropriate.
*******/ To be used in connection with registration statements on
Forms S-2 and S-3.
due, and the Company has no knowledge of any tax deficiency which
has been asserted against the Company or any of its subsidiaries
which would materially and adversely affect the business or
properties of the Company and its subsidiaries, taken as a whole.
To the Company's knowledge, tax liabilities in the aggregate are
adequately provided for on the consolidated books of the Company.
The Company has not received notice of any material proposed
additional tax assessments against it or any of its subsidiaries.
(u) Neither the Company nor any of its
subsidiaries is in violation of any law, ordinance, governmental
rule or regulation including, without limitation, federal, state
and local rules and regulations relating to the protection of the
environment or concerning the handling, storage, disposal or
discharge of toxic materials (collectively, "Environmental Laws")
or court decree or order to which it or any of its property is
subject, except for such violations which (individually or in the
aggregate) do not or will not have a material adverse effect on
the business, prospects, properties, assets, operations,
condition (financial or other), net worth or results of
operations of the Company and its subsidiaries taken as a whole.
Each of the Company and its subsidiaries has obtained any
permits, consents and authorizations required to be obtained by
it under applicable laws, rules, ordinances or regulations
including, without limitation, Environmental Laws and any such
permits, consents and authorizations remain in full force and
effect, except as to any of the foregoing the absence of which
(individually or in the aggregate) will not have a material
adverse effect on the business, prospects, properties, assets,
operations, condition (financial or other), net worth or results
of operations of the Company and its subsidiaries taken as a
whole. There is no pending or, to the Company's or any of its
subsidiaries' knowledge, threatened, action or proceeding against
the Company or any of its subsidiaries alleging violations of any
applicable laws, rules, ordinances or regulations including,
without limitation, any Environmental Laws, other than any such
actions or proceedings which, individually or in the aggregate,
if adversely determined, is not reasonably likely to have a
material adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net worth or
results of operations of the Company and its subsidiaries taken
as a whole.
(v) No default or event of default with respect
to any Indebtedness (as such term is defined in the Indenture)
entitling the holders thereof to accelerate the maturity thereof
exists or will exist as a result of the execution and delivery of
this Agreement or the consummation of the transactions
contemplated hereby and each of the Company and its subsidiaries
has duly performed or observed all material obligations,
agreements, covenants or conditions contained in any contract,
indenture, mortgage, agreement or instrument relating to any
Indebtedness.
(w) The Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(iii) access to assets1 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.
(x) None of the Company, its subsidiaries or any
affiliate of the Company or its subsidiaries is doing business
with the government of Cuba or with any person or any affiliate
located in Cuba.
(y) Each of the Company and its subsidiaries
maintains insurance of the types and in amounts generally deemed
adequate for its business, including but not limited to, general
liability insurance and insurance covering real and personal
property owned or leased by the Company or any of its
subsidiaries against theft, destruction, damage, acts of
vandalism and all other risks customarily insured against, all of
which insurance is in full force and effect.
(z) Each of the Company and its subsidiaries owns
or possesses adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and
know-how necessary to conduct the businesses now or proposed to
be operated by it as described in the Prospectus, and none of the
Company or its subsidiaries has received any notice of
infringement of infringement of or conflict with (or knows of any
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, if such assertion of
infringement or conflict were sustained, would, individually or
in the aggregate, have a material adverse effect on the business,
prospects, properties, assets, operations, condition (financial
or other), net worth or results of operations of the Company and
its subsidiaries taken as a whole.
(aa) Each of the Company and its subsidiaries
possesses all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made or will
have made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, presently
required or necessary to own or lease, as the case may be, and to
operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as set forth in the
Prospectus ("Permits"), except where the failure to obtain such
Permits would not, individually or in the aggregate, have a
material adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net worth or
results of operations of the Company and its subsidiaries taken
as a whole; each of the Company and its subsidiaries has
fulfilled and performed all of its obligations with respect to
such Permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights
of the holder of any such Permit; and none of the Company or its
subsidiaries has received any notice of any proceeding relating
to revocation or modification of any such Permit, except as
described in the Prospectus and except where such revocation or
modification would not, individually, or in the aggregate, have a
material adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net worth or
results of operations of the Company and its subsidiaries taken
as a whole.
(bb) The statistical and market-related data
included in the Prospectus are based or derived from sources
which the Company and its subsidiaries believe to be reliable and
accurate.
(cc) None of the Company or its subsidiaries, or
any agent acting on their behalf, has taken or will take any
action that might cause this Agreement or the sale of the
Securities to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing
Date.
(dd) There is no strike, labor dispute, slowdown
or work stoppage with the employees of the Company or any of its
subsidiaries which is pending or, to the knowledge of the Company
or any of its subsidiaries, threatened.
(ee) None of the Company or its subsidiaries has
any liability for any prohibited transactions or funding
deficiency or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan which is
subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), to which the Company or any of its
subsidiaries makes or ever has made a contribution and in which
any employee of the Company or any of its subsidiaries is or has
ever been a participant. With respect to such plans, the Company
and each of its subsidiaries are in compliance in all material
respects with all applicable provisions of ERISA.
(ff) The Securities and the Indenture will
conform, in all material respects, to the descriptions thereof in
the Prospectus.
(gg) Immediately after the consummation of the
transactions contemplated by this Agreement, the fair value and
present fair saleable value of the assets of the Company will
exceed the sum of its stated liabilities and identified
contingent liabilities; the Company is not, nor will the Company
be, after giving effect to the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby, (i) left with unreasonably
small capital with which to carry on its business it is proposed
to be conducted, (ii) unable to pay its debts (contingent and
otherwise) as they mature or (iii) otherwise insolvent.
[Where appropriate, include additional representations
and warranties with respect to matters such as material
contracts, patents, trademarks, franchises, permits, licenses,
specific litigation, as needed] regulatory approvals, obligations
under ERISA, environmental liability, labor matters, Exchange
listing or NASDAQ/NMS quotation, change of auditors, etc.]
2. Purchase, Sale and Delivery of the Sharecurities.
(a) On the basis of the representations,
warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at
a purchase price per share of $________, the number of [Firm]
Sharethe appropriate purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite
the respective names of the Underwriters in Schedule I hereto
plus any additional number of Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 9 hereof.
(b) Payment of the purchase price for, and
delivery of certificates for, the Sharthe Securities shall be
made at the office of [name and address], or at such other place
as shall be agreed upon by you and the Company, at 10:00 A.M. on
the third or fourth business day (as permitted under Rule 15c6-1
under the Exchange Act) (unless postponed in accordance with the
provisions of Section 9 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company
has elected to rely upon Rule 430A of the Rules and Regulations,
the third or fourth business day (as permitted under Rule 15c6-1
under the Exchange Act) after the determination of the initial
public offering price of the Sharecurities), or such other time
not later than ten business days after such date as shall be
agreed upon by you and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). Payment
shall be made to the Company [by certified or official bank check
or checks drawn in federal funds or similar same day funds
payable to the order of the Company] [by wire transfer in same
day funds], against delivery to you for the respective accounts
of the Underwriters of certificates for the Sharecurities to be
purchased by them. Certificates for the Sharecurities shall be
registered in such name or names and in such authorized
denominations as you may request in writing at least two full
business days prior to the Closing Date. The Company will permit
you to examine and package such certificates for delivery at
least one full business day prior to the Closing Date.
[(c) In addition, the Company hereby grants to
the Underwriters the option to purchase up to ________ Additional
Shares at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares as set forth in
this Section 2, for the sole purpose of covering over allotments
in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the
thirtieth day following the date of the Prospectus, by written
notice by you to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is
being exercised and the date and time, as reasonably determined
by you, when the Additional Shares are to be delivered (such date
and time being herein sometimes referred to as the "Additional
Closing Date"); provided, however, that the Additional Closing
Date shall not be earlier than the Closing Date or earlier than
the second full business day after the date on which the option
shall have been exercised nor later than the eighth full business
day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the
provisions of Section 9 hereof). Certificates for the Additional
Shares shall be registered in such name or names and in such
authorized denominations as you may request in writing at least
two full business days prior to the Additional Closing Date. The
Company will permit you to examine and package such certificates
for delivery at least one full business day prior to the
Additional Closing Date.
The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same ratio to the
aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set
forth in Section 9 hereof) bears to [insert the total number of
Firm Shares being purchased from the Company], subject, however,
to such adjustments to eliminate any fractional shares as you in
you sole discretion shall make.
Payment for the Additional Shares shall be made [by
certified or official bank check or checks drawn in federal funds
or similar same day funds, payable to the order of the Company]
[by wire transfer in same day funds] at the offices of ________,
or such other location as may be mutually acceptable, upon
delivery of the certificates for the Additional Shares to you for
the respective accounts of the Underwriters.
3. Offering. Upon your authorization of the release
of the Firm SharSecurities, the Underwriters propose to offer the
Sharecurities for sale to the public upon the terms set forth in
the Prospectus.
7. Indemnification.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the
later of when (i) you and the Company shall have received
notification of the effectiveness of the Registration Statement
or (ii) the execution of this Agreement. If either the initial
public offering price or the purchase price per share has not
been agreed upon prior to 5:00 P.M., New York time, on the fifth
full business day after the Registration Statement shall have
become effective, this Agreement shall thereupon terminate
without liability to the Company or the Underwriters except as
herein expressly provided. Until this Agreement becomes effective
as aforesaid, it may be terminated by the Company by notifying
you or by you notifying the Company. Notwithstanding the
foregoing, the provisions of this Section 11 and of Sections 1,
5, 7 and 8 hereof shall at all times be in full force and effect.
12. Notices. All communications hereunder,
except as may be otherwise specifically provided herein, shall be
in writing and, if sent to any Underwriter, shall be mailed,
delivered, or telexed or telegraphed and confirmed in writing, to
such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, Attention: ________________; if sent to the
Company, shall be mailed, delivered, or telegraphed and confirmed
in writing to the Company, ________, Attention:_________________.
13. Parties. This Agreement shall insure solely
to the benefit of, and shall be binding upon, the Underwriters
and the Company and the controlling persons, directors, officers,
employees and agents referred to in Section 7 and 8, and their
respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or
claim under or in respect of or by virtue of this Agreement or
any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of
Securities from any of the Underwriters.
14. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York, but without regard to principles of conflicts
of law.
If the foregoing correctly sets forth the understanding
between you and the Company, please so indicate in the space
provided below for that purpose, whereupon this letter shall
constitute a binding agreement among us.
Very truly yours,
[ ]
By __________________
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
[ ]
BY ____________________________
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and
sales of Securities), to which that Underwriter or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably
incurred by that Underwriter or controlling person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically
for inclusion therein; and provided further, that as to any
Preliminary Prospectus or supplement thereto this indemnity
agreement shall not inure to the benefit of any Underwriter or
any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of
Securities to any person by that Underwriter if that Underwriter
failed to send or give a copy of the Prospectus, as the same may
be amended or supplemented, to that person within the time
required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary
Prospectus or supplement thereto was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company
with Section 4(c). For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be
deemed to include the documents incorporated by reference
therein, and no Underwriter shall be obligated to send or give
any supplement or amendment to any document incorporated by
reference in a Preliminary Prospectus or supplement thereto or
the Prospectus to any person other than a person to whom such
Underwriter has delivered such incorporated documents in response
to a written request therefor. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise
have to any Underwriter or to any controlling person of that
Underwriter.
Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the
Company), each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such
director, officer or controlling person.
Promptly after receipt by an indemnified party
under this Section 7 of notice of any claim or the commencement
of any action, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, the
indemnified party shall notify the indemnifying party in writing
of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any
such claim or action shall be brought against an indemnified
party, and the indemnified party shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the Representatives
shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 7, if, in the
reasonable judgment of the Representatives, if there are legal
defenses available to them which are different from or in
addition to those available to such indemnifying party (it being
understood that the Company shall not, in connection with any one
such claim or action or separate but substantially similar or
related claims or actions in the same jurisdiction arising out of
the same allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys (other than local counsel which shall be engaged only
for purposes of appearing with such counsel in such jurisdictions
in which such firm of attorneys is not licensed to practice)),
and in that event the fees and expenses of such separate counsel
shall be paid by the Company. Anything in this Section 7(c) to
the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without
its written consent.
If the indemnification provided for in this
Section 7 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein (other than by reason of
the failure to give notice, as provided in the first sentence of
Section 7(c)), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above 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 the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under this
Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined
by reference to whether the 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
the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to in this Section 7(d). The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in
this Section 7(d) shall be deemed to include, for purposes of
this Section 7(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no
Underwriter shall 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 was offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 7(d) are several in
proportion to their respective underwriting obligations and not
joint.
If any Underwriter defaults in the performance of its obligations
under a Terms Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the
respective proportions which the number of shares or principal
amount of Securities set opposite the name of each remaining
non-defaulting Underwriter in Schedule A to the Terms Agreement
bears to the total number of shares or principal amount of the
Securities set opposite the names of all the remaining
non-defaulting Underwriters in Schedule A to the Terms Agreement;
provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any Securities on the Closing
Date if the aggregate number of shares or principal amount of the
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares or principal amount of the Securities, and
any remaining non-defaulting Underwriter shall not be obligated
to purchase more than 110% of the number of shares or principal
amount of Securities set forth opposite its name on Schedule A to
the Terms Agreement. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree,
shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the
Securities. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the
number of shares or principal amount which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the
Terms Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses to
the extent set forth in Sections 5 and 10.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for
damages caused by its default. If other underwriters are
obligated or agree to purchase the Securities of a defaulting or
withdrawing Underwriter, either the Representatives or the
Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or any
supplement thereto or in any other document or arrangement.
its pro rata share of
SCHEDULE I
Number of [Firm]
Description of Securities:_______________________________________
Principal Amount of
Name of Underwriter Sharecurities to be
Purchased
Bear, Xxxxxxx & Co. Inc.
Total Aggregate Principal Amount . . . . . . . . . . . .
SCHEDULE II
[Names of sharnoteholders subject to the lock-up provision]
