EXHIBIT 1.2
U.S. $_________
FIRST DATA CORPORATION
MEDIUM-TERM NOTES, SERIES __
DISTRIBUTION AGREEMENT
____________, 1997
________________________
________________________
________________________
________________________
________________________
________________________
Dear Sirs:
First Data Corporation, a Delaware corporation (the "Company"), confirms its
agreement with each of you (individually, an "Agent" and collectively, the
"Agents") with respect to the issuance and sale by the Company of its Medium-
Term Notes, Series __ (the "Notes") having an aggregate initial offering price
of up to $___________. The Notes are to be issued from time to time pursuant to
an indenture, dated as of March 26, 1993 (as supplemented or amended from time
to time, the "Indenture"), between the Company and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a), as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the Procedures (as defined in Section 2(f)). This Agreement shall only
apply to sales of the Notes and not to sales of any other securities or
evidences of indebtedness of the Company and only on the specific terms set
forth herein.
Subject to the terms and conditions of this Agreement and to the reservation
by the Company of the right to sell Notes directly on its own behalf, and to
designate and select additional agents in accordance with Section 2(a), the
Company hereby (i) appoints each of the Agents as the agent of the Company
during each Marketing Period (as defined in Section 1(b)) for the purpose of
soliciting and receiving offers to purchase Notes from the Company and (ii)
agrees that whenever the Company determines to sell Notes directly to an Agent
as principal it will enter into a separate agreement (each a "Purchase
Agreement"). Each such Purchase Agreement, whether oral (and confirmed in
writing in accordance with Section 2(e)) or in writing, shall be, with respect
to such information (as applicable) as is specified in Exhibit C relating to
such sale, in accordance with Section 2(e).
1. Representations and Warranties of the Company. The Company represents
and warrants to each Agent as of the date of this Agreement, as of the Closing
Date (as defined in Section 2(g)) and as of the times referred to in Sections
6(a) and 6(b) (the Closing Date and each such time being hereinafter sometimes
referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (File No. 333-_____), with
respect to the Notes 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 Representation Date, the most recent such amendment
has been declared
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effective by the Commission. Copies of such registration statement and any
amendments thereto have been delivered by the Company to the Agents. 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 3(a), a prospectus supplement relating to the Notes,
the terms of the offering thereof and the other matters set forth therein
has been filed pursuant to Rule 424 under the Securities Act. In addition, a
preliminary prospectus supplement reflecting the terms of the Notes, 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 1(a) and as amended at the time of the applicable Representation
Date, 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"), 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 and
a Pricing 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. Any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any
annual or interim report of the Company or other documents filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement. Notwithstanding the foregoing, any prospectus supplement prepared
or filed with respect to an offering pursuant to the Registration Statement
of securities other than the Notes 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 each
Representation Date and at all times during each period during which, in the
opinion of counsel for the Agents, a prospectus relating to the Notes is
required to be delivered under the Securities Act (each a "Marketing
Period") 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; the
Incorporated Documents, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and did 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 any further
documents so filed and incorporated by reference in the Prospectus, when
such documents become effective or are filed with Commission, as the case
may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder 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,
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respectively, the Indenture 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 by or on behalf of any Agent
specifically for inclusion therein or (ii) that part of the Registration
Statement which shall constitute 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 subsidiaries set forth on
Annex 1 (c) to this 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 this Agreement and
each applicable Purchase Agreement, if any, by the Company and the
consummation of the transactions contemplated hereby and thereby and
compliance by the Company with the provisions of the Indenture and the Notes
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 Notes 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 and sale of
the Notes, 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 this Agreement and each
applicable Purchase Agreement, if any, by the Company and the consummation
of the transactions contemplated hereby and thereby or compliance by the
Company with the provisions of the Indenture.
(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 in Annex 1(f) to this Agreement (or in Annex
1(f) to any applicable Officers' Certificate delivered pursuant to Section
6(b)), 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.
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(g) The Indenture 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 Notes have been duly authorized by the
Company and, when the terms of the Notes and of their issuance and sale have
been duly established in accordance with the Indenture, this Agreement and
the applicable Purchase Agreement, if any, and the Notes 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 applicable
Purchase Agreement, if any, the Notes 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; and the
Notes, the Indenture 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 and will present, as of the applicable Representation
Date, 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 Agents, 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 ▇▇▇▇ 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
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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 and in Annex 1(o) to this
Agreement (or in Annex 1(o) to any applicable Officers' Certificate
delivered pursuant to Section 6(b)), 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 this 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.
2. Solicitations as Agent; Purchases as Principal.
(a) Appointment. Subject to the terms and conditions of this
Agreement, the Company hereby appoints each of the Agents as one of the
agents of the Company for the purpose of soliciting or receiving offers to
purchase the Notes from the Company by others. On the basis of the
representations and warranties in this Agreement, but subject to the terms
and conditions of this Agreement, each Agent agrees, as one of the agents of
the Company, to use its reasonable best efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the
Prospectus. In connection therewith, each Agent will use the Prospectus in
the form most recently furnished to such Agent by the Company, and will
solicit offers to purchase the Notes in accordance with the Securities Act,
the Rules and Regulations and the applicable securities laws or regulations
of any other applicable jurisdiction in which such Agent solicits offers to
purchase any Note.
The Company expressly reserves the right to offer Notes directly to
investors or through agents other than the Agents and, in either case, the
Agents shall not receive any commission with respect to such sale. Each
Agent also may purchase Notes from the Company as principal for purposes of
resale, as more fully described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in
its sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of at least one business day's prior written notice from the Company, the
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Agents shall suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of this Agreement, "business
day" shall mean any day which is not a Saturday or Sunday and which is not a
day on which The New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Sections
3(a) and 3(j), each Agent shall suspend its solicitation of offers to
purchase Notes until such time as the Company shall have furnished such
Agent with an amendment or supplement to the Registration Statement or the
Prospectus, as the case may be, contemplated by Sections 3(a) and 3(j) and
shall have advised such Agent that such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in accordance with the schedule set forth in Exhibit A.
(d) Solicitation of Offers. The Agents are authorized to solicit
offers to purchase the Notes only in such denominations as are specified in
the Prospectus at a purchase price as shall be specified by the Company.
Each Agent shall communicate to the Company promptly, orally or in writing,
each reasonable offer to purchase Notes received by it as an Agent. The
Company shall have the sole right to accept offers to purchase the Notes and
may reject any such offer in whole or in part. Each Agent shall have the
right, in its discretion reasonably exercised without advising the Company,
to reject any offer to purchase the Notes received by it, in whole or in
part, and any such rejection shall not be deemed a breach of such Agent's
agreement contained herein.
In connection with the solicitation of offers to purchase Notes, the
Agents are not authorized to provide to any person any written information
relating to the Company other than the Prospectus and the Incorporated
Documents. No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by
the Company, until such Note shall have been delivered to the purchaser
thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal shall be made in accordance with the terms of this Agreement and a
Purchase Agreement whether oral (and confirmed in writing by such Agent and
the Company which may be by facsimile transmission) or in writing, which
will provide for the sale of such Notes to, and the purchase thereof by,
such Agent. A Purchase Agreement also may specify certain provisions
relating to the reoffering of such Notes by such Agent. The commitment of
any Agent to purchase Notes from the Company as principal shall be deemed to
have been made on the basis of the representations and warranties of the
Company contained in this Agreement and shall be subject to the terms and
conditions of this Agreement. Each Purchase Agreement shall specify the
principal amount and terms of the Notes to be purchased by an Agent, the
time and date (each such time and date being referred to herein as a "Time
of Delivery") and place of delivery of and payment for such Notes and such
other information (as applicable) as is set forth in Exhibit C. The Company
agrees that if any Agent purchases Notes as principal, such Agent shall
receive such compensation, in the form of a discount or otherwise, as shall
be indicated in the applicable Purchase Agreement or, if no compensation is
indicated therein, a commission in accordance with Exhibit A. Any Agent may
utilize a selling or dealer group in connection with the resale of such
Notes. In addition, the Agents may offer the Notes they have purchased as
principal to other dealers. Any Agent may sell Notes to any dealer at a
discount. Such Purchase Agreement also shall specify any requirements for
delivery of opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 5.
(f) Administrative Procedures. Administrative procedures respecting
the sale of Notes (the "Procedures") are set forth in Exhibit B and may be
amended in writing from time to time by the Agents and the Company. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them in this Agreement and
in the Procedures. The Procedures shall apply to all transactions
contemplated hereunder including sales of
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Notes to any Agent as principal pursuant to a Purchase Agreement, unless
otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 shall be delivered at the offices of ___________________________,
not later than 10:00 A.M., ____________________ time, on the date of this
Agreement or at such later time as may be mutually agreed upon by the
Company and the Agents, which in no event shall be later than the time at
which the Agents commence solicitation of offers to purchase Notes hereunder
(the "Closing Date").
3. Covenants of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Agents 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 Agents, 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 Notes or a Pricing
Supplement) and to furnish the Agents with copies thereof; to notify the
Agents, 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 Notes 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; to
notify the Agents promptly of any downgrading in the rating accorded the
Notes or any other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt securities of the
Company, 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, or any public announcement that any such organization
has under surveillance or review, with possible negative implications, its
rating of the Notes or any of the Company's debt securities promptly after
the Company learns of such downgrading, proposal to downgrade or public
announcement; 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 Agents and to counsel for the
Agents 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 Agents copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus,
the Prospectus and all amendments and supplements to such documents
(including the Incorporated Documents), in each case as soon as available
and in such quantities as are reasonably requested;
(d) To file promptly with the Commission during any Marketing Period
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 Agents, or requested by the
Commission;
(e) Prior to filing with the Commission during any Marketing Period
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 Notes), and
promptly after filing with the Commission any Incorporated Document or any
amendment to any Incorporated Document, to furnish a copy thereof to the
Agents and counsel for the Agents;
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(f) As soon as practicable, but not later than 16 months after the
date of each acceptance by the Company of an offer to purchase Notes, to
make generally available to its security holders and to the Agents 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 12
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 acceptance 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 acceptance;
(g) For a period expiring on the earlier of (i) five years after the
applicable Representation Date and (ii) the last date on which any Note
sold pursuant to this Agreement is outstanding, to furnish to the Agents
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 Agents
reasonably may request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as the Agents 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 Notes; 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;
(i) Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, not to offer for sale, sell or
cause to be offered for sale or sold, without the prior written consent of
each Agent which is a party to such Purchase Agreement, any debt securities
which are substantially similar to the Notes;
(j) If, during any Marketing Period, any event occurs as a result of
which the Prospectus would 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, or if it is necessary at any time to amend or supplement any
Prospectus to comply with the Securities Act, to notify the Agents
promptly, in writing, to suspend solicitation of purchases of the Notes;
and if the Company shall decide to amend or supplement the Registration
Statement or any Prospectus, to advise the Agents promptly by telephone
(with confirmation in writing) and to prepare and file with the Commission
promptly an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance; provided,
however, that if during the period referred to above any Agent shall own
any Notes which it has purchased from the Company as principal with the
intention of reselling them and the Agent has held such Notes for fewer
than 180 days or the Company has accepted an offer to purchase any Notes
but the related settlement has not occurred, the Company shall promptly
prepare and timely file with the Commission any amendment or supplement to
the Registration Statement or any Prospectus that may be required by the
Securities Act, in the judgment of the Company or the Agents, or requested
by the Commission; and
(k) To prepare, with respect to any Notes to be sold through or to
the Agents pursuant to this Agreement, a Pricing Supplement with respect to
such Notes and to file such Pricing Supplement pursuant to Rule 424 under
the Securities Act with the Commission, in each case within the applicable
time period prescribed for such filing by the Rules and Regulations.
4. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes 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
9
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 and
any Purchase 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 Notes, 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 Notes under the securities laws
of the several jurisdictions as provided in Section 3(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 Agents);
(h) the fees paid to rating agencies in connection with the rating of the Notes;
(i) the costs of printing and issuance of certificates, if any; (j) reasonable
fees and disbursements of the Trustee and any transfer agent, any paying agent,
any calculation agent, any exchange rate agent and any other agents appointed by
the Company, and their respective counsel; (k) the reasonable fees and
disbursements of counsel to the Company and counsel to the Agents; (l) all
advertising expenses in connection with the offering of the Notes incurred with
the consent of the Company; and (m) all other reasonable costs and expenses
arising out of the transactions contemplated hereunder and incident to the
performance of the obligations of the Company under this Agreement or otherwise
in connection with the activities of the Agents under this Agreement.
5. Conditions of the Agents' Obligations. The obligation of the
Agents, as the agents of the Company, under this Agreement to solicit offers to
purchase the Notes, the obligation of any person who has agreed to purchase
Notes to make payment for and take delivery of the Notes, and the obligation of
any Agent to purchase the Notes pursuant to any Purchase Agreement, is subject
to the accuracy, on each Representation Date, of the representations and
warranties of the Company contained in this Agreement, to the accuracy of the
statements of the Company's officers made in any certificate furnished pursuant
to the provisions of 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 (including the Pricing
Supplement) with respect to the Notes 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 3(a) and 3(k); no stop order
suspending the effectiveness of the Registration Statement or any part
thereof nor any order directed to any document incorporated by reference in
any Prospectus 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 any Prospectus or otherwise shall have been
complied with. No order suspending the sale of the Notes in any jurisdiction
designated by the Agents pursuant to Section 3(h) hereof shall have been
issued, and no proceeding for that purpose shall have been initiated or
threatened.
(b) No Agent shall have discovered and disclosed to the Company that
the Registration Statement or any Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, 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, each Purchase
Agreement, if any, the Indenture, the Notes, the Registration Statement and
each Prospectus, and all other legal matters relating to this Agreement and
each Purchase Agreement, if any, and the transactions contemplated hereby
and thereby shall be satisfactory in all material respects to counsel for
the Agents, 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 Agents, shall have furnished to the Agents their
written opinion, as counsel to the Company, addressed to the Agents and
dated the Closing Date, in form and substance acceptable to the Agents to
the effect that:
(i) The Indenture 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
10
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 Notes have been duly authorized by the Company, and, when
the terms of a Note and of its issuance and sale have been duly established
in accordance with the Indenture, this Agreement and the applicable Purchase
Agreement, if any, and when such Note has been duly executed, authenticated,
issued and delivered in the manner provided in the Indenture and paid for in
accordance with this Agreement and the applicable Purchase Agreement, if
any, such Note will be duly and validly issued and delivered by the Company
and will constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms and entitled to
the benefits of the Indenture;
(iii) 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;
(iv) At the Effective Time, the Registration Statement (including
all documents incorporated by reference therein) complied, and on the date
of this 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 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;
(v) The Notes, the Indenture and the capital stock of the Company
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;
(vi) 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;
(vii) This Agreement and each Purchase Agreement, if any, have been
duly authorized by the Company, and this Agreement and each Purchase
Agreement, if any, executed and delivered prior to or at the time of
delivery of such opinion have been duly executed and delivered by the
Company;
(viii) The sale of the Notes by the Company, compliance by the
Company with all of the provisions of this Agreement, each Purchase
Agreement, if any, executed and delivered prior to or at the time of
delivery of such opinion, the Indenture and the Notes 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 Notes 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 Notes, 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 or the
applicable Purchase Agreement, if any, by the Company and the consummation
by the Company of the transactions contemplated hereby; and
11
(ix) 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 that 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 Agents, 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 or incorporated by reference in the Registration
Statement and Prospectus (except as set forth in subparagraph (v) 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 Agents and state that they believe that
the Agents 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 Notes 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 Agents his written opinion, addressed to the Agents and
dated the Closing Date, in form and substance satisfactory to the Agents to
the effect that:
(i) The Company and each of its significant subsidiaries
(as defined in Rule 405 under the Securities Act and listed in Annex
1(c)) 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
12
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 Notes by the Company and the compliance
by the Company with all of the provisions of this Agreement, and each
Purchase Agreement, if any, executed and delivered prior to or at the
time of delivery of such opinion, 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 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 listed in Annex 1(f), 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 Agents and state that he
believes that the Agents and such counsel are justified in relying upon
such certificates.
(f) The Company shall have furnished to the Agents on the Closing
Date a letter of Ernst & Young LLP, addressed jointly to the Company and
the Agents 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 Agents may reasonably
request and in form and substance satisfactory to the Agents.
(g) The Company shall have furnished to the Agents a certificate,
dated the Closing Date, of its Chief Financial Officer or Treasurer and
its General Counsel or other counsel reasonably satisfactory to the Agents
stating that:
13
(i) The representations and warranties of the Company in Section
1 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 5(h) and (j) of this
Agreement have been fulfilled; and no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor
any order directed to any document incorporated by reference in any
Prospectus 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 (ii) since such date there shall not
have been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries (otherwise than as set forth or
contemplated in the Prospectus or in a supplement thereto) or any change in
or affecting, or any adverse development which affects, the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is, in the judgment of
the Agents, so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or
offers and sales of Notes, or with the purchase of Notes as principal
pursuant to an applicable Purchase Agreement, as the case may be.
(i) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, Inc., 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 Agents,
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Notes or offers and sales of Notes, or with the purchase of Notes
as principal pursuant to an applicable Purchase Agreement, as the case may
be.
(j) Subsequent to the execution and delivery of this 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 Agents.
6. Additional Covenants of the Company. The Company covenants and
agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes shall be deemed
to be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate given to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent of the Notes relating to such acceptance
as though made at and as of each such time (and such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented at each such time).
(b) Subsequent Delivery of Officers' Certificates. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented (other than by (A) a Pricing Supplement, (B) an
amendment or supplement which relates exclusively to an offering of securities
other than the Notes or (C) except as set forth in (ii) and (iii) below, an
amendment or supplement by the filing of an Incorporated Document), (ii) the
Company files with the Commission an Annual Report on Form 10-K, a Quarterly
Report on Form 10-Q or a Current Report on Form 8-K which contains financial
information required to be set forth in or incorporated by reference into the
Prospectus pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the
Agents reasonably request following the filing by the Company with the
Commission of an Incorporated Document (other than as specified in the preceding
clause (ii)) or (iv) the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of an officers' certificate
under this Section 6(b) as a condition to the purchase of Notes pursuant to such
Purchase Agreement, the Company shall, promptly following such amendment or
supplement, filing of such Annual Report, Quarterly Report or Current Report
that is incorporated by reference into the Prospectus or request by the Agents,
or concurrently with the Time of Delivery relating to such sale, furnish to the
Agents a certificate as of the date of such amendment, supplement, filing or
Time of Delivery relating to such sale or if such amendment, supplement or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(g) which was last furnished to the Agents
are true and correct as of the time of delivery of such certificate pursuant to
this Section 6(b), as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and each
Prospectus as amended and supplemented to such time), or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(g), modified as necessary to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) Subsequent Delivery of Legal Opinions. During each Marketing Period,
each time (i) that the Registration Statement or any Prospectus shall be amended
or supplemented (other than by (A) a Pricing Supplement, (B) an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes or (C) except as set forth in (ii) and (iii) below, an amendment or
supplement by the filing of an Incorporated Document), (ii) the Company files
with the Commission an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q or a Current Report on Form 8-K which contains financial information
required to be set forth in or incorporated by reference into the Prospectus
pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the Agents
reasonably request following the filing by the Company with the Commission of an
Incorporated Document (other than as specified in the preceding clause (ii)) or
(iv) the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a legal opinion under this Section
6(c) as a condition to the purchase of Notes pursuant to such Purchase
Agreement, the Company shall, promptly following such amendment or supplement,
filing of such Annual Report, Quarterly Report or Current Report that is
incorporated by reference into the Prospectus or request by the Agents, or
concurrently with the Time of Delivery relating to such sale, or if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents and their
counsel with the written opinions of counsel to the Company specified in
Sections 5(d) and 5(e), each addressed to the Agents and dated the date of
delivery of such opinion, in form satisfactory to the Agents, to the same effect
as the opinions referred to in Sections 5(d) and 5(e) hereof, but modified, as
necessary, to relate to the Registration Statement and each Prospectus as
amended or supplemented to the time of delivery of such opinion; provided,
however, that in lieu of such opinion, counsel may furnish the Agents with
letters to the effect that the Agents may rely on prior opinions to the same
extent as though they were dated the date of such letters authorizing reliance
(except that statements in such prior opinions shall be deemed to relate to the
Registration Statement and each Prospectus as amended or supplemented to the
time of delivery of such letters authorizing reliance).
15
(d) Subsequent Delivery of Accountant's Letters. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented to include additional financial information (other than
by (A) a Pricing Supplement, (B) an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or (C) except as
set forth in (ii) and (iii) below, an amendment or supplement by the filing of
an Incorporated Document), (ii) the Company files with the Commission an Annual
Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form
8-K which contains financial information required to be set forth in or
incorporated by reference into the Prospectus pursuant to Item 11 of Form S-3
under the Securities Act, (iii) the Agents reasonably request, following the
filing by the Company with the Commission of an Incorporated Document (other
than as specified in the preceding clause (ii)) or (iv) the Company sells Notes
to an Agent as principal and the applicable Purchase Agreement specifies the
delivery of letters under this Section 6(d) as a condition to the purchase of
Notes pursuant to such Purchase Agreement, the Company shall cause Ernst & Young
LLP (or other independent accountants of the Company acceptable to the Agents)
to furnish the Agents, promptly following such amendment or supplement, filing
of such Annual Report, Quarterly Report or Current Report that is incorporated
by reference into the Prospectus or request by the Agents, or concurrently with
the Time of Delivery relating to such sale, or if such amendment, supplement, or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, a letter, addressed as provided in Section 5(f) and
dated the date of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, to the same effect as the letter referred to in
Section 5(f) but modified to relate to the Registration Statement and each
Prospectus, as amended and supplemented to the date of such letter delivered
pursuant to this Section 6(d), with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company or other relevant corporation.
(e) Opinion on Settlement Date. On any settlement date for the sale of Notes
to any Agent pursuant to a Purchase Agreement, the Company shall, if requested
by such Agent no later than the date such Purchase Agreement is entered into,
furnish such Agent with written opinions of the counsel to the Company set forth
in Sections 5(d) and 5(e), each dated such settlement date, in form satisfactory
to such Agent, to the effect set forth in Sections 5(d) and 5(e), but modified,
as necessary, to relate to the Prospectus relating to the Notes to be delivered
on such settlement date; provided, however, that in lieu of such opinion, such
counsel may furnish such Agent with a letter to the effect that such Agent may
rely on such prior opinion to the same extent as though it was dated such
settlement date (except that statements in such prior opinion shall be deemed to
relate to the Registration Statement and such Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance).
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Agent and each
person, if any, who controls any Agent 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 Notes), to which
that Agent 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 Agent and each such controlling person for any legal or
other expenses reasonably incurred by that Agent 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 by or on behalf of
any Agent 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 Agent or any person controlling that Agent on
account of any loss, claim, damage, liability or action arising from the sale of
Notes to any person by that Agent if that Agent 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 that Prospectus, unless such failure resulted from non-compliance
by the Company with Section 3(c). For purposes of the second proviso to the
immediately preceding sentence, the term
16
Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Agent 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 Agent 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 Agent
or to any controlling person of that Agent.
(b) Each Agent, 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 by or
on behalf of that Agent 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 Agent 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 Agents shall have the right to employ counsel to represent jointly the
Agents 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
Agents against the Company under this Section 7, if, in the reasonable judgment
of the Agents, 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 Agents on the other from the
offering of the Notes 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
17
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Agents 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 any Agent on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the sale of the Notes
(before deducting expenses) received by the Company bear to the total
commissions received by such Agent with respect to such offering. 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 any Agent, 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 Agents
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 Agents
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 Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes sold through it and distributed to the public was
offered to the public exceeds the amount of any damages which such Agent 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. Each Agent's obligation to contribute as provided
in this Section 7(d) are several and not joint.
(e) The Agents severally confirm that the statements with respect to the
public offering of the Notes set forth on the cover page of, and under the
caption "Supplemental Plan of Distribution" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Agents specifically for inclusion in the Registration Statement
and the Prospectus.
8. Status Of Each Agent. In soliciting offers to purchase the Notes from
the Company pursuant to this Agreement (other than in respect of any Purchase
Agreement), each Agent is acting individually and not jointly and is acting
solely as agent for the Company and not as principal. Each Agent will make
reasonable best efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company has been solicited by
such Agent and accepted by the Company but such Agent shall have no liability to
the Company in the event any such purchase is not consummated for any reason. If
the Company shall default in its obligations to deliver Notes to a purchaser
whose offer the Company has accepted, the Company shall (i) hold the Agents
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii), in particular, pay to the Agents any commission
to which they would be entitled in connection with such sale.
9. Termination. This Agreement may be terminated for any reason at any
time by any party upon the giving of one day's written notice of such
termination to the other parties hereto; provided, however, if such terminating
party is an Agent, such termination shall be effective only with respect to such
terminating party. If, at the time of a termination, an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser has not occurred, the provisions of this Agreement shall remain in
effect until such Notes are delivered. The agreements contained in Sections
2(c), 3(f), 3(g), 4, 7 and 8 and the representations and warranties of the
Company in Section 1 shall survive the delivery of any Notes and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
10. Notices. Except as otherwise provided herein, all notices and other
communications provided pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Agents shall be directed
to them as follows: ______________________________; notices to the Company
shal be directed to it as follows:_____________________________________________.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Agents and the Company and their
respective successors. This Agreement is 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 Agent within
the meaning of Section 15 of the Securities Act and (B) the indemnity agreement
of the Agents contained in Section 7(b) 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, 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
Notes shall be deemed to be a successor solely by reason of such purchase.
12. Governing Law. THIS AGREEMENT AND ANY PURCHASE 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).
13. Counterparts. This Agreement and any Purchase 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.
14. Headings. The headings used in this Agreement 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.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance of this Agreement in the space provided for that purpose below.
Very truly yours,
FIRST DATA CORPORATION
By:________________________________
Title:
Name:
By:________________________________
Title:
Name:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[Name of Agent]
By:________________________________
Title:
Name:
[Name of Agent]
By:________________________________
Title:
Name:
