Exhibit 1.1
FIRST DATA CORPORATION
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
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__________, 1997
1. Introductory. First Data Corporation, a Delaware corporation (the
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"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
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 trustees named therein (the "Trustee(s)"), 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. 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 (together with the 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) A registration statement on Form S-3 (File No. 333-______) with
respect to the Registered Securities has (i) 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) 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 matters 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 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 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), 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) The Company and each of its subsidiaries (as defined in Rule 405 of
the Rules and Regulations) have been duly incorporated and are validly
existing as corporations in good standing under the general corporation
laws of their respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification and
in which the failure to be so incorporated, existing or qualified would
reasonably be expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, and have
all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged; and
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.
(d) 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 or claims.
(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 will not result in a
breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its significant subsidiaries is a party or by
which the Company or any of its significant subsidiaries is bound or to
which any of the property or assets of the Company or any of its
significant subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
of its significant subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its significant subsidiaries or any of their
properties or assets; and except for the registration of the Securities
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Trust
Indenture Act or the Exchange Act, and applicable state or foreign
securities laws in connection with the offer, sale and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body 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 or compliance by the Company with the provisions of the Indenture,
if any, described in the Terms Agreement.
(f) 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
(or in Schedule B to any applicable Officers' Certificate delivered
pursuant to Section 6(g)), 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.
(g) 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; 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; 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;
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 Securities, the Indenture,
if any, described in the Terms Agreement and the capital stock of the
Company will conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(h) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any 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, which would
reasonably be expected to have a material adverse effect on 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; and, since such date,
there has not 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 any material adverse change in or
affecting, or any adverse development which materially 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.
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise
stated therein.
(j) Ernst & Young LLP, or such other independent accountants acceptable
to the Representatives, who have certified certain financial statements of
the Company and whose report appears or is incorporated by reference in the
Prospectus, are independent public accountants as required by the
Securities Act and the Rules and Regulations during the periods covered by
the financial statements on which they reported contained in the
Prospectus.
(k) 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, and have not received any notice of any claims of conflict with
any such rights of others, which claims are reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(l) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which are reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and to the actual knowledge of the Company,
no such proceedings are threatened by governmental authorities or by
others.
(m) 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.
(n) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus and which is not so described.
(o) Except as described in the Prospectus or Schedule C to the Terms
Agreement (or in Schedule C to any applicable Officers' Certificate
delivered pursuant to Section 6(g)), 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.
(p) Neither the Company nor any of its subsidiaries, respectively, (i)
is in violation of its charter or by-laws, (ii) is in default, and no event
has occurred which, with notice or lapse of time or both, would constitute
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject or
(iii) is 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 except, in the case of clauses
(ii) and (iii), for those defaults, violations or failures which, either
individually or in the aggregate, are not reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(q) The Company is not required to be registered, and is not regulated,
as an "investment company" as such term is defined under the United States
Investment Company Act of 1940.
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 a telegram, telex or other written communications ("Terms
Agreement") at each time the Company determines to sell the Securities. 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 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 Registered
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Registered Securities by the Underwriters and may be exercised in
whole or in part at any 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 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 Registered 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 Contract") 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 agrees:
(a) 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; 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; 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;
(b) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus,
the Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as are reasonably
requested;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may be required by the Securities Act, in the reasonable judgment of
the Company or the Representatives, or requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations (other than any
Incorporated Document or any amendment or supplement relating to an offering
of securities other than the Securities), to furnish a copy thereof to the
Representatives and counsel for the Underwriters;
(f) As soon as practicable but no later than 16 months after the date
of each Terms Agreement, to make generally available to its security holders
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 and (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;
(g) During the period, if any, specified in the Terms Agreement after
the date of such Terms Agreement, to furnish to the Representatives copies
of all materials furnished by the Company to its
stockholders and all public reports and financial statements furnished by
the Company to the principal national securities exchange upon which the
common stock of the Company may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time, to take such action as the
Representatives reasonably may request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Securities;
provided, however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise so subject; and
(i) For the period specified in the Terms Agreement, to 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 a majority of the Representatives; provided, however,
the Company may, without such consent, offer and sell shares of common
stock of the Company in transactions exempt from the registration
requirements of the Securities Act, provided that the purchasers in such
transactions are prohibited from offering for sale, selling or otherwise
disposing of, directly or indirectly, any of the shares of common stock of
the Company so acquired by them for the remainder of the period specified
in the Terms Agreement 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 a majority
of the Representatives, any debt securities which are substantially similar
to the Securities.
5. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any Incorporated Documents, all as provided in this Agreement;
(d) the costs of reproducing and distributing this Agreement; (e) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Securities, if necessary;
(f) any applicable stock exchange listing or other fees; (g) the fees and
expenses of filings, if any, with foreign securities administrators and of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(h) and of preparing, reproducing and distributing a
Blue Sky Memorandum (including related fees (in an amount not to exceed $10,000)
and disbursements of counsel to the Underwriters); (h) the fees paid to rating
agencies in connection with the rating of the Securities; (i) the costs of
printing and issuance of certificates, if any; (j) reasonable fees and
disbursements of the Trustee and any transfer agent; and (k) all other
reasonable costs and expenses incident to the performance of the obligations of
the Company under this Agreement; provided that except as provided in this
Section 5 and in Section 10, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Securities which they may sell and the expenses of advertising any
offering of the Securities made by the Underwriters, and the Company shall pay
the fees and expenses of its counsel and any transfer taxes payable in
connection with its sale of Securities to the Underwriters.
6. Conditions of Underwriters' Obligations. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and at the
time of delivery of any Securities pursuant to a Terms Agreement, of the
representations and warranties of the Company contained in this Agreement, to
the performance by the Company of its obligations under this Agreement, and to
each of the following additional terms and 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.
(b) 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 the counsel for the
Underwriters, 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.
(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 counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the
Company satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed
to the Underwriters and dated the Closing Date, and, if Option Securities
are purchased, at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from such counsel, in form and substance
acceptable to the Representatives to the effect that:
(i) The Indenture, if any, described in the Terms Agreement has been
duly authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act, and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms;
(ii) The Debt Securities, if any, described in the Terms Agreement
have been duly authorized by the Company, and when 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 or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, 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;
(iii) If any Securities to be issued are convertible into common
stock, the shares of common stock initially issuable upon conversion of
the Securities have been reserved for issuance upon such conversion;
and when certificates therefor have been duly executed, countersigned,
registered and delivered upon such conversion, will constitute shares
of common stock which have been duly authorized and validly issued and
are fully paid and non-assessable;
(iv) The common stock and preferred stock, if any, described in the
Terms Agreement; when certificates therefor have been duly executed,
countersigned, registered and delivered in accordance with this
Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, constitute
shares of common stock or preferred stock, as the case may be, which
have been duly authorized and validly issued and are fully paid and
non-assessable;
(v) The Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion; any required
filing of the Prospectus pursuant to Rule 424(b) of the Rules and
Regulations has been made within the time period prescribed by the
Rules and Regulations; and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no proceeding for
that purpose is pending or threatened by the Commission;
(vi) 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;
(vii) 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;
(viii) 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.
(ix) The Terms Agreement, this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company;
(x) The sale of the Securities by the Company, compliance by the
Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement, any
Delayed Delivery Contracts and the Securities and the consummation by
the Company of the transactions contemplated hereby and thereby will
not result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any agreement or instrument
scheduled in such opinion (as in effect on the date of such opinion);
and, except for the registration of the Securities under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Trust Indenture Act, the
Exchange Act and applicable state or foreign securities laws in
connection with the offer and sale of the Securities by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any court or any governmental agency or
body is required for the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby; and
(xi) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under the
United States Investment Company Act of 1940.
In addition, such counsel shall state that in the course of the preparation of
the Registration Statement and the Prospectus, such counsel has considered the
information set forth therein in light of the matters required to be set forth
therein and such counsel has participated in conferences with officers and
representatives of the Company, including its independent public accountants
and, with respect to the Prospectus, representatives of and counsel for the
Representatives during the course of which the contents of the Registration
Statement and Prospectus and related matters were discussed and, although such
counsel shall not have independently checked the accuracy or completeness of, or
otherwise verified, and accordingly are not passing upon, and shall not assume
responsibility for, the accuracy, completeness or fairness of the statements
contained in or incorporated
by reference in the Registration Statement and Prospectus (except as set forth
in subparagraph (vii) above), and that such counsel has relied as to
materiality, to a large extent, upon the judgment of officers and
representatives of the Company, as a result of such consideration and
participation, nothing has come to the attention of such counsel which causes
such counsel to believe that 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 an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of the date of such opinion, includes
an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that, in each
case, such counsel need not express any belief as to the financial statements
and related schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (i) state that their opinion is
limited to the federal laws of the United States, the laws of the State of New
York and the General Corporation Law of the State of Delaware, (ii) rely as to
matters of fact upon the representations contained in this Agreement and the
certificates of officers of the Company and it subsidiaries and of public
officials; provided that such counsel shall furnish copies thereof to the
Representatives and state that they believe that the Underwriters and they are
justified in relying upon such certificates and (iii) state that their opinions
set forth in subparagraphs (i) and (ii) 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.
(e) The General Counsel or other counsel of the Company, shall have
furnished to the Representatives his written opinion, addressed to the
Underwriters and dated the Closing Date, and, if Option Securities are
purchased, at any date after the Closing Date as specified in a Terms Agreement,
additional opinions from such counsel, in form and substance satisfactory to the
Representatives to the effect that:
(i) The Company and each of its significant subsidiaries (as defined in
Rule 405 under the Securities Act and identified in the Terms Agreement)
have been duly incorporated and are validly existing as corporations in
good standing under the general corporation laws of their respective
jurisdictions of incorporation and have all corporate power and authority
necessary to own or hold their respective properties and conduct the
businesses in which they are engaged;
(ii) All of the issued shares of capital stock of each significant
subsidiary have been duly and validly authorized and issued and are fully
paid, non-assessable and (except for directors' qualifying shares) owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set forth or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which are reasonably expected to have a material adverse effect
on the business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
and, to such counsel's knowledge, no such proceedings are threatened by
governmental authorities or by others;
(iv) The sale of the Securities by the Company and the compliance by
the Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement, any
Delayed Delivery Contract and the Securities, and the consummation of the
transactions contemplated hereby and thereby will not result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument 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 is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Company or any significant subsidiary or of
any statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties or assets (except
that such counsel need express no opinion with respect to applicable state
or foreign securities laws);
(v) To such counsel's knowledge, neither the Company nor any
significant subsidiary (A) is in violation of its charter or by-laws, (B)
is in default, and no event has occurred, which, with notice or lapse of
time or both, would constitute a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject or (C) is 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 except, in the case of clauses (B) and (C), for those defaults,
violations or failures which, either individually or in the aggregate, are
not reasonably expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and
(vi) 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.
In rendering such opinion, such counsel may (i) state that his opinion is
limited to the federal laws of the United States, the laws of the State of
Nebraska and the General Corporation Law of the State of Delaware and (ii) rely
as to matters of fact upon certificates of officers of the Company and its
subsidiaries and of public officials; provided that such counsel shall furnish
copies thereof to the Representatives and state that he believes that the
Underwriters and such counsel are justified in relying upon such certificates.
(f) The Company shall have furnished to the Representatives on the Closing
Date a letter of Ernst & Young LLP, addressed jointly to the Company and the
Underwriters and dated the Closing Date 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 in form and substance
satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate,
dated the Closing Date, and on any later date, if any, on which Option
Securities are purchased, of its Chief Financial Officer or Treasurer and its
General Counsel or other counsel stating that:
(i) The representations and warranties of the Company in Section 2 of
this Agreement are true and correct as of such date; the Company has
performed all of its agreements contained in this Agreement which are
required to be performed on or before the date of such certificate and the
conditions set forth in subsections 6(h) and (j) of this Agreement have
been fulfilled; and 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
(ii) 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.
(h)(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 (i) 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.
(i) 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.
(j) 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.
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 counsel for the Underwriters.
7. Indemnification and Contribution.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(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(f), 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 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. Defaulting Underwriters. 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.
9. Effective Date and Termination. The obligations of the Underwriters
under the Terms Agreement may be terminated by the Representatives by notice
given to and received by the Company prior to delivery of any payment for the
Securities if, prior to that time, the events described in any of Section 6(h),
6(i) or 6(j) shall have occurred.
10. Reimbursement of Underwriters' Expenses. If (a) the Company shall fail
to tender the Securities for delivery to the Underwriters for any reason
permitted under this Agreement or the Terms Agreement or (b) the Underwriters
shall decline to purchase the Securities for any reason permitted under this
Agreement or the Terms Agreement (including the termination of the Terms
Agreement pursuant to Section 9), the Company shall reimburse the Underwriters
for the reasonable fees and expenses of their counsel and for such other out-of-
pocket expenses as shall have been reasonably incurred by them in connection
with the Terms Agreement and the proposed purchase of the Securities, and upon
demand the Company shall pay the full amount thereof to the Representatives. If
the Terms Agreement is terminated pursuant to Section 8 by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse any
Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing and shall be deemed duly given if mailed or
transmitted by any standard form of telecommunication. Such notices shall be
directed as follows:
(a) if to the Underwriters, to their addresses furnished to the Company
in writing for the purpose of communications hereunder;
(b) if to the Company, to the address of the Company set forth in the
Registration Statement, Attention: General Counsel;
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
telex 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. Persons Entitled to Benefit of Agreement. 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 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. 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. Definition of the Term "Business Day". For purposes of this Agreement,
"business day" means any day on which the NYSE is open for trading.
14. Governing Law. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CHOICE OF LAW).
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]
FIRST DATA CORPORATION
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from FIRST DATA CORPORATION, a
Delaware 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
------------- ----------------
________________________ [$]_____________
________________________ [$]_____________
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
-----------------------------
*Insert date which is third full business day prior to Closing Date under the
Terms Agreement.
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.
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,
FIRST DATA CORPORATION
By _______________________________
Name:
Title:
ANNEX II (A)
FIRST DATA CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
---------------
,19__
First Data Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 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.
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.]
[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,
FIRST DATA CORPORATION
By_________________________
Name:
Title:
ANNEX II (B)
FIRST DATA CORPORATION
("Company")
Equity Securities
TERMS AGREEMENT
---------------
,19__
First Data Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 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: ___
------------------------------------------------------------------------
years.
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:
-------------------
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].
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.]
[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,
FIRST DATA CORPORATION
By________________________________
Name:
Title:
0301409.02
