EXHIBIT 1.1
EXECUTION VERSION
5,546,600 SHARES OF COMMON STOCK
FIDELITY NATIONAL INFORMATION SERVICES, INC.
UNDERWRITING AGREEMENT
November 9, 2006
BEAR, XXXXXXX & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
The shareholders listed on Schedule I hereto (the "Selling
Shareholders") of Fidelity National Information Services, Inc., a corporation
organized and existing under the laws of Georgia (the "Company"), propose,
subject to the terms and conditions stated herein, to sell (the "Offering") to
Bear, Xxxxxxx & Co. Inc. (the "Underwriter") an aggregate of 5,546,600 shares
(the "Shares") of the Company's Common Stock, par value $0.01 per share (the
"Common Stock").
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") an automatic shelf registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), relating to the
Shares, on Form S-3 (File No. 333-131593) (the "Initial Registration
Statement"); and such Initial Registration Statement, and any post-effective
amendment thereto, each in the form previously delivered to you, became
effective upon filing, in such form. No other document with respect to the
Initial Registration Statement has heretofore been filed with the Commission.
The various parts of the Initial Registration Statement, including all exhibits
thereto and including (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act in accordance with Section 4(a) hereof and deemed by virtue of
Rule 430A, 430B or 430C under the Securities Act to be part of the Initial
Registration Statement at the time it became effective under the Securities Act
with respect to the Underwriter, and (ii) the documents incorporated by
reference in the prospectus contained in the Initial Registration Statement,
each as amended at the time such part of the Initial Registration Statement
became or hereafter becomes effective under the Securities Act with respect to
the Underwriter, are hereafter collectively referred to as the "Registration
Statement." Any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange
Act"), after the effective date of the Initial Registration Statement that is
incorporated by reference therein. No stop order suspending the effectiveness of
the Initial Registration Statement or any post-effective amendment thereto has
been issued and no proceeding for that purpose has been initiated or threatened
by the Commission.
The prospectus supplement relating to the Shares, in the form first
filed with the Commission pursuant to Rule 424(b) under the Securities Act, is
hereafter referred to as the "Prospectus", Any preliminary prospectus included
in the Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) under the Securities Act is hereafter referred to as a "Preliminary
Prospectus;" and the prospectus included in the Registration Statement
immediately prior to the Applicable Time (as defined below), is hereafter
referred to as the "Pricing Prospectus". Any "issuer free writing prospectus"
(as defined in Rule 433 under the Securities Act) relating to the Shares is
hereafter referred to as an "Issuer Free Writing Prospectus"; and the Pricing
Prospectus, as supplemented by the public offering price of the Shares and the
Issuer Free Writing Prospectuses, if any, attached and listed in Annex III
hereto, taken together, are hereafter referred to collectively as the "Pricing
Disclosure Package". Any reference herein to any Preliminary Prospectus, Pricing
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 that
were filed under the Exchange Act, in the case of any Preliminary Prospectus or
the Prospectus, on or before the date of such Preliminary Prospectus or
Prospectus, as the case may be, and, in the case of the Pricing Prospectus, at
or before the Applicable Time; and any reference herein to any "amendment" or
"supplement" to any Preliminary Prospectus, Pricing Prospectus or the Prospectus
shall be deemed to refer to and include (i) the filing of any document under the
Exchange Act after the date of such Preliminary Prospectus, Pricing Prospectus
or Prospectus, as the case may be, which is incorporated therein by reference
and (ii) any such document so filed.
The Company is not an "ineligible issuer" (as defined in Rule 405
under the Securities Act) and, at the time of (i) filing the Registration
Statement and (ii) the most recent amendment thereto for purposes of complying
with Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Securities Act or form of prospectus), the Company was a "well-
known seasoned issuer" (as defined in Rule 405 under the Securities Act).
All references in this Agreement to the Registration Statement, any
Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus, or any
amendments or supplements to any of the foregoing, shall be deemed to include
any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
(b) The Registration Statement complies, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will comply, in all material respects with the applicable provisions
of the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations"), and do not and will not, as
of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment
thereof or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; provided,
2
however, that this representation and warranty shall not apply to any
information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of the Underwriter specifically for use therein. The parties hereto agree
that such information provided by or on behalf of the Underwriter consists
solely of the material referred to in Section 17 hereof.
(c) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission.
(d) Each Preliminary Prospectus, at the time of filing thereof,
complied in all material respects with the applicable provisions of the
Securities Act, the Exchange 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, in
light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
information contained in or omitted from any Preliminary Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of the Underwriter specifically for use therein. The parties hereto
agree that such information provided by or on behalf of the Underwriter consists
solely of the material referred to in Section 17 hereof.
(e) For purposes of this Agreement, the "Applicable Time" is 4:15
p.m. (Eastern) on the date of this Agreement. The Pricing Disclosure Package, as
of the Applicable Time, did not, and as of the Closing Date (as hereinafter
defined), will not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Each Issuer Free Writing Prospectus complies in all material
respects with the applicable provisions of the Securities Act and the Rules and
Regulations, and does not include information that conflicts with the
information contained in the Registration Statement, the Pricing Prospectus or
the Prospectus, and each Issuer Free Writing Prospectus not listed in Annex III
hereto, as supplemented by and taken together with the Pricing Disclosure
Package, as of the Applicable Time, did not, and as of the Closing Date, will
not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. No
representation and warranty is made in this Section 1(e) with respect to any
information contained in or omitted from the Pricing Disclosure Package or any
Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the
Underwriter specifically for use therein. The parties hereto agree that such
information provided by or on behalf of the Underwriter consists solely of the
material referred to in Section 17 hereof.
(f) KPMG LLP, who have certified the financial statements and
supporting schedules and information of the Company and its subsidiaries that
are included or incorporated by reference in the Registration Statement, the
Pricing Prospectus or the Prospectus, and Ernst & Young LLP whose reports appear
or are incorporated by reference in the Registration Statement, the Pricing
Prospectus or the Prospectus, who have certified certain other financial
statements and supporting schedules and information of Certegy Inc. that are
included or
3
incorporated in the Registration Statement, the Pricing Prospectus or the
Prospectus, each are independent public accountants as required by the
Securities Act, the Exchange Act and the Rules and Regulations.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Pricing Prospectus, except as
disclosed in the Pricing Disclosure Package, (i) the Company has not declared or
paid any dividends, or made any other distribution of any kind, on or in respect
of its capital stock, (ii) there has not been any change in the capital stock or
long-term or short-term debt of the Company or any of its "significant
subsidiaries" (as that term is defined in Rule 1-02(w) of Regulation S-X), as
listed in Schedule II hereto (each, a "Subsidiary" and, collectively, the
"Subsidiaries"), (iii) neither the Company nor any Subsidiary has sustained any
material loss or interference with its business or properties from fire,
explosion, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental proceeding,
and (iv) there has not been any material adverse change or any development
involving a prospective material adverse change, whether or not arising from
transactions in the ordinary course of business, in or affecting the business,
general affairs, management, condition (financial or otherwise), results of
operations, shareholders' equity, properties or prospects of the Company and the
Subsidiaries, individually or taken as a whole (a "Material Adverse Change").
Since the date of the latest balance sheet included, or incorporated by
reference, in the Registration Statement and the Pricing Prospectus, neither the
Company nor any Subsidiary has incurred or undertaken any liabilities or
obligations, whether direct or indirect, liquidated or contingent, matured or
unmatured, or entered into any transactions, including any acquisition or
disposition of any business or asset, which are material to the Company and the
Subsidiaries, individually or taken as a whole, except for liabilities,
obligations and transactions which are disclosed in the Pricing Disclosure
Package.
(h) The Company has an authorized capitalization as set forth in the
Pricing Disclosure Package, and all of the issued and outstanding shares of
capital stock of the Company are fully paid and non-assessable and have been
duly and validly authorized and issued, in compliance with all applicable state,
federal and foreign securities laws and not in violation of or subject to any
preemptive or similar right that entitles any person to acquire from the Company
or any subsidiary any Common Stock or other security of the Company or any
security convertible into, or exercisable or exchangeable for, Common Stock or
any other such security (any "Relevant Security"), except for such rights as may
have been fully satisfied or waived prior to the effectiveness of the
Registration Statement. All of the issued shares of capital stock of or other
ownership interests in each Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly or
indirectly by the Company free and clear of any lien, charge, mortgage, pledge,
security interest, claim, equity, trust or other encumbrance, preferential
arrangement, defect or restriction of any kind whatsoever (any "Lien").
(i) The Shares to be delivered on the Closing Date (as hereinafter
defined), have been duly and validly authorized and validly issued, are fully
paid and non-assessable, and will not have been issued in violation of or
subject to any preemptive or similar right that entitles any person to acquire
any Relevant Security from the Company. The Common Stock and the Shares conform
to the descriptions thereof contained in the Registration Statement, the Pricing
Prospectus and the Prospectus. Except as disclosed or incorporated by reference
in the Pricing
4
Prospectus, the Company has no outstanding warrants, options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, or any
contracts or commitments to issue or sell, any Relevant Security. Except as
disclosed or incorporated by reference in the Pricing Prospectus, no holder of
any Relevant Security has any rights to require registration under the
Securities Act of any Relevant Security in connection with the offer and sale of
the Shares contemplated hereby, and any such rights so disclosed have either
been fully complied with by the Company or effectively waived by the holders
thereof.
(j) Each of the Company and each Subsidiary has been duly organized
and validly exists as a corporation, partnership or limited liability company in
good standing under the laws of its jurisdiction of organization. The Company
and each Subsidiary is duly qualified to do business and is in good standing as
a foreign corporation, partnership or limited liability company in each
jurisdiction in which the character or location of its properties (owned, leased
or licensed) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing
which (individually and in the aggregate) would not reasonably be expected to
have a material adverse effect on (i) the business, general affairs, management,
condition (financial or otherwise), results of operations, shareholders' equity,
properties or prospects of the Company and the Subsidiaries, taken as a whole;
or (ii) the ability of the Company to consummate the Offering or any other
transaction contemplated by this Agreement (a "Material Adverse Effect").
(k) Each of the Company and each Subsidiary has all requisite power
and authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses, filings and permits of, with and from
all judicial, regulatory and other legal or governmental agencies and bodies and
all third parties, foreign and domestic (collectively, the "Consents"), to own,
lease and operate its properties and conduct its business as it is now being
conducted, and each such Consent is valid and in full force and effect, except
in each case as would not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received notice of any
investigation or proceedings which, if decided adversely to the Company or any
such Subsidiary, could reasonably be expected to result in, the revocation of,
or imposition of a materially burdensome restriction on, any such Consent.
(l) This Agreement has been duly and validly authorized, executed
and delivered by the Company.
(m) The compliance by the Company with this Agreement and the
consummation of the transactions herein contemplated do not, and will not, (i)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any Lien upon any property or assets of the Company or any
Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement, instrument, franchise, license or permit to which the
Company or any Subsidiary is a party or by which the Company or any Subsidiary
or their respective properties, operations or assets may be bound, (ii) violate
or conflict with any provision of the certificate or articles of incorporation,
by-laws, certificate of formation, limited liability company agreement,
partnership agreement or other organizational documents of the Company or any
Subsidiary, or (iii) violate
5
or conflict with any statute, law, rule, regulation, ordinance, directive,
judgment, decree or order of any judicial, regulatory or other legal or
governmental agency or body, domestic or foreign; except, with respect to items
(i) and (iii), as would not reasonably be expected to have a Material Adverse
Effect.
(n) No Consent of, with or from any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic, is
required for the execution, delivery and performance by the Company of this
Agreement or consummation of the transactions contemplated by this Agreement,
except the registration under the Securities Act of the Shares and such consents
as may be required under state securities or blue sky laws in connection with
the purchase and distribution of the Shares by the Underwriter, each of which
has been obtained and is in full force and effect.
(o) Except as disclosed in the Registration Statement, the Pricing
Prospectus and the Prospectus, there is no judicial, regulatory, arbitral or
other legal or governmental proceeding or other litigation or arbitration,
domestic or foreign, pending to which the Company or any Subsidiary is a party
or of which any property, operations or assets of the Company or any Subsidiary
is the subject which, individually or in the aggregate, if determined adversely
to the Company or any Subsidiary, would reasonably be expected to have a
Material Adverse Effect; to the Company's knowledge, no such proceeding,
litigation or arbitration is threatened or contemplated.
(p) The financial statements and pro forma data, including the notes
thereto, and the supporting schedules included or incorporated by reference in
the Registration Statement, the Pricing Prospectus and the Prospectus present
fairly, in all material respects, the financial position as of the dates
indicated and the cash flows and results of operations for the periods specified
of the Company and its consolidated subsidiaries and the other entities for
which financial statements are included or incorporated by reference in the
Registration Statement, the Pricing Prospectus and the Prospectus; except as
otherwise stated in the Registration Statement, the Pricing Prospectus and the
Prospectus, said financial statements have been prepared in conformity with
United States generally accepted accounting principles applied on a consistent
basis throughout the periods involved; and the supporting schedules included in
the Registration Statement, the Pricing Prospectus and the Prospectus present
fairly, in all material respects, the information required to be stated therein.
No other financial statements or supporting schedules are required to be
included in the Registration Statement, the Pricing Prospectus or the Prospectus
by the Securities Act, the Exchange Act or the Rules and Regulations. The other
financial and statistical information included or incorporated by reference in
the Registration Statement, the Pricing Prospectus and the Prospectus present
fairly the information included therein and have been prepared on a basis
consistent with that of the financial statements that are included or
incorporated by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus and the books and records of the respective entities
presented therein.
(q) The pro forma financial statements included in the Registration
Statement, the Pricing Prospectus and the Prospectus have been properly compiled
and prepared in accordance with the applicable requirements of the Securities
Act, the Exchange Act and the Rules and Regulations and include all adjustments
necessary to present fairly in accordance with
6
United States generally accepted accounting principles the pro forma financial
position of the respective entity or entities presented therein at the
respective dates indicated and their cash flows and the results of operations
for the respective periods specified.
(r) The statistical, industry-related and market-related data
included in the Registration Statement, the Pricing Prospectus and the
Prospectus are based on or derived from sources which the Company reasonably and
in good faith believes are reliable and accurate, and such data agree with the
sources from which they are derived.
(s) The Common Stock has been registered pursuant to Section 12(b)
of the Exchange Act. The shares of Common Stock are listed on the New York Stock
Exchange (the "NYSE"), and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or de-listing the Common Stock from the NYSE, nor has the
Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(t) The Company and its Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accounting for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(u) The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange Act and has
been designed by the Company's principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted
accounting principles. The Company's internal control over financial reporting
is effective and the Company is not aware of any material weaknesses in its
internal control over financial reporting. Since the date of the latest audited
financial statements included or incorporated by reference in the Pricing
Prospectus, there has been no change in the Company's internal control over
financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company's internal control over financial reporting.
(v) The Company maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and procedures
have been designed to ensure that material information relating to the Company
and its subsidiaries is made known to the Company's principal executive officer
and principal financial officer by others within those entities; and such
disclosure controls and procedures are effective.
(w) There is and has been no failure on the part of the Company or
any of its directors or officers, in their capacities as such, to comply with
any provision of the Xxxxxxxx-Xxxxx
7
Act of 2002 and the rules and regulations promulgated in connection therewith
(the "Xxxxxxxx-Xxxxx Act"), including, without limitation, Section 402 related
to loans and Sections 302 and 906 related to certifications except as would not
reasonably be expected to have a Material Adverse Effect.
(x) Neither the Company nor any of its affiliates (within the
meaning of Rule 144 under the Securities Act) has taken, directly or indirectly,
any action which constitutes or is designed to cause or result in, or which
could reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares.
(y) The statements set forth or incorporated by reference in the
Registration Statement, Pricing Disclosure Package and Prospectus under the
captions "Summary of the Offering" and "Description of Capital Stock", insofar
as they purport to constitute a summary of the terms of the Common Stock, and
under the captions "Plan of Distribution" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects.
(z) The Company is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act and files periodic reports with the Commission,
and the conditions for use of Form S-3 to register the Shares under the
Securities Act have been satisfied. The documents incorporated or deemed to be
incorporated by reference in the Pricing Prospectus and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Securities Act, the
Exchange Act and the Rules and Regulations and, when read together with the
other information in the Pricing Prospectus or the Prospectus, as applicable, do
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(aa) The Company is not and, after giving effect to the sale of the
Shares as contemplated herein, will not be an "investment company" under the
Investment Company Act of 1940, as amended.
(bb) Except as disclosed in the Registration Statement, the Pricing
Prospectus and the Prospectus, there are no contracts, agreements or
understandings between the Company and any person that would give rise to a
valid claim against the Company or the Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the transactions
contemplated by this Agreement.
(cc) The Company and each Subsidiary owns or leases all such
properties as are necessary to the conduct of its business as presently operated
and as proposed to be operated as described in the Registration Statement, the
Pricing Prospectus and the Prospectus. The Company and the Subsidiaries have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free and
clear of any and all Liens except such as are described in the Registration
Statement, the Pricing Prospectus and the Prospectus or such as do not
(individually or in the aggregate) materially
8
affect the value of such property or materially interfere with the use made or
proposed to be made of such property by the Company and the Subsidiaries; and
any real property and buildings held under lease or sublease by the Company and
the Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material to, and do not materially interfere
with, the use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries. Neither the Company nor any Subsidiary has
received any notice of any claim adverse to its ownership of any real or
personal property or of any claim against the continued possession of any real
property, whether owned or held under lease or sublease by the Company or any
Subsidiary.
(dd) The Company and each Subsidiary (i) owns or possesses the right
to use all patents, patent applications, trademarks, service marks, domain
names, trade names, trademark registrations, service xxxx registrations,
copyrights, licenses, formulae, customer lists, and know-how and other
intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures,
"Intellectual Property") necessary for the conduct of their respective
businesses as presently conducted and as described in the Registration
Statement, the Pricing Prospectus and the Prospectus and (ii) have no reason to
believe that the conduct of their respective businesses does or will conflict
with, and have not received any notice of any claim of conflict with, any such
right of others, and, to the Company's knowledge, there is no infringement by
third parties of any Intellectual Property, except in each case as would not
reasonably be expected to have a Material Adverse Effect; there is no pending
or, to the Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the Company's or any Subsidiary's rights in or to any such
Intellectual Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim; and there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others that
the Company or any Subsidiary infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others, and
the Company is unaware of any other fact which would form a reasonable basis for
any such claim.
(ee) The Company and the Subsidiaries maintain insurance in such
amounts and covering such risks as the Company reasonably considers adequate for
the conduct of its business and the value of its properties and as is customary
for companies engaged in similar businesses in similar industries, all of which
insurance is in full force and effect, except where the failure to maintain such
insurance could not reasonably be expected to have a Material Adverse Effect.
There are no material claims by the Company or any Subsidiary under any such
policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause. The Company reasonably believes
that it will be able to renew its existing insurance as and when such coverage
expires or will be able to obtain replacement insurance adequate for the conduct
of the business and the value of its properties at a cost that would not have a
Material Adverse Effect.
(ff) Each of the Company and each Subsidiary has accurately prepared
and timely filed all federal, state, foreign and other tax returns that are
required to be filed by it and has paid or made provision for the payment of all
taxes, assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company or any
Subsidiary is obligated to withhold from amounts owing to employees, creditors
and third parties, with respect to the periods covered by such tax returns
(whether or not
9
such amounts are shown as due on any tax return). No deficiency assessment with
respect to a proposed adjustment of the Company's or any Subsidiary' federal,
state, local or foreign taxes is pending or, to the best of the Company's
knowledge, threatened. The accruals and reserves on the books and records of the
Company and the Subsidiaries in respect of tax liabilities for any taxable
period not finally determined are adequate to meet any assessments and related
liabilities for any such period and, since December 31, 2005, the Company and
the Subsidiaries have not incurred any liability for taxes other than in the
ordinary course of its business. There is no tax lien, whether imposed by any
federal, state, foreign or other taxing authority, outstanding against the
assets, properties or business of the Company or any Subsidiary.
(gg) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the best of the Company's knowledge, is imminent,
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(hh) No "prohibited transaction" (as defined in either Section 406
of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA") or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time (the
"Code")), "accumulated funding deficiency" (as defined in Section 302 of ERISA)
or other event of the kind described in Section 4043(b) of ERISA (other than
events with respect to which the 30-day notice requirement under Section 4043 of
ERISA has been waived) has occurred with respect to any employee benefit plan
for which the Company or any Subsidiary would have any liability which could
(individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect; each employee benefit plan for which the Company or any
Subsidiary would have any liability is in compliance in all material respects
with applicable law, including (without limitation) ERISA and the Code; the
Company has not incurred and does not expect to incur liability under Title IV
of ERISA with respect to the termination of, or withdrawal from any "pension
plan"; and each plan for which the Company would have any liability that is
intended to be qualified under Section 401 (a) of the Code is so qualified and
nothing has occurred, whether by action or by failure to act, which could cause
the loss of such qualification.
(ii) There has been no storage, generation, transportation,
handling, use, treatment, disposal, discharge, emission, contamination, release
or other activity involving any kind of hazardous, toxic or other wastes,
pollutants, contaminants, petroleum products or other hazardous or toxic
substances, chemicals or materials ("Hazardous Substances") by, due to, on
behalf of, or caused by the Company or any Subsidiary (or, to the Company's
knowledge, any other entity for whose acts or omissions the Company is or may be
liable) upon any property now or previously owned, operated, used or leased by
the Company or any Subsidiary, or upon any other property, which would be a
violation of or give rise to any liability under any applicable law, rule,
regulation, order, judgment, decree or permit, common law provision or other
legally binding standard relating to pollution or protection of human health and
the environment ("Environmental Law"), except for violations and liabilities
which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect. There has been no disposal, discharge, emission
contamination or other release of any kind at, onto or from any such property or
into the environment surrounding any such property of any Hazardous Substances
with respect to which the Company or any Subsidiary has knowledge, except as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse
10
Effect. Neither the Company nor any Subsidiary has agreed to assume, undertake
or provide indemnification for any liability of any other person under any
Environmental Law, including any obligation for cleanup or remedial action,
except as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. There is no pending or, to the best of the
Company's knowledge, threatened administrative, regulatory or judicial action,
claim or notice of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any Subsidiary. No
property of the Company or any Subsidiary is subject to any Lien under any
Environmental Law. Neither the Company nor any Subsidiary is subject to any
material order, decree, agreement or other individualized legal requirement
related to any Environmental Law.
(jj) None of the Company, any Subsidiary or, to the Company's
knowledge, any of its employees or agents, has at any time during the last five
years (i) made any unlawful contribution to any candidate for foreign office, or
failed to disclose fully any such contribution in violation of law, or (ii) made
any payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States of any jurisdiction
thereof. The operations of the Company and each Subsidiary are and have been
conducted at all times in compliance with applicable financial record-keeping
and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the "Money Laundering Laws") and no action,
suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any Subsidiary with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened. Neither the Company nor any Subsidiary nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or
any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC").
(kk) Neither the Company nor any Subsidiary (i) is in violation of
its certificate or articles of incorporation, by-laws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational documents, (ii) is in default under, and no event has occurred
which, with notice or lapse of time or both, would constitute a default under or
result in the creation or imposition of any Lien upon any property or assets of
the Company or any Subsidiary pursuant to, 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 property or assets is subject, or
(iii) is in violation of any statute, law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or other legal
or governmental agency or body, foreign or domestic, except (in the case clauses
(ii) and (iii) above) for violations or defaults that would not (individually or
in the aggregate) reasonably be expected to have a Material Adverse Effect.
(ll) The Company has complied with the requirements of Rule 433
under the Securities Act with respect to each Issuer Free Writing Prospectus
including, without limitation, all prospectus filing, record retention and
legending requirements applicable to any such Issuer Free Writing Prospectus.
The Company has not (i) distributed any offering material in
11
connection with the Offering other than the Pricing Prospectus, the Prospectus,
and any Issuer Free Writing Prospectus set forth on Annex III hereto, or (ii)
filed, referred to, approved, used or authorized the use of any "free writing
prospectus" as defined in Rule 405 under the Securities Act with respect to the
Offering or the Shares, except for any Issuer Free Writing Prospectus set forth
in Annex III hereto.
(mm) The transactions contemplated by the Agreement and Plan of
Merger between the Company and Fidelity National Financial, Inc., dated as of
June 25, 2006, as amended, have been completed.
Any certificate signed by or on behalf of the Company and delivered
to the Underwriter or to counsel for the Underwriter shall be deemed to be a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
2. Representations and Warranties of the Selling
Shareholders. Each Selling Shareholder severally represents and warrants to,
and agrees with, the Underwriter as of the date hereof and as of the Closing
Date that:
(a) Such Selling Shareholder has full right, power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions to be entered into by such Selling
Shareholder or under this Agreement, the Registration Statement, the Pricing
Prospectus and the Prospectus. This Agreement and the transactions to be entered
into by such Selling Shareholder or under this Agreement, the Registration
Statement, the Pricing Disclosure Package and the Prospectus have been duly and
validly authorized by such Selling Shareholder, This Agreement has been duly and
validly executed and delivered by such Selling Shareholder and constitutes the
legal, valid and binding obligation of such Selling Shareholder, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b) Such Selling Shareholder agrees that the Shares to be sold
by such Selling Shareholder are subject to the interests of the Underwriter, and
that the obligations of such Selling Shareholder hereunder shall not be
terminated, except as provided in this Agreement by any act of such Selling
Shareholder, by operation of law or by the occurrence of any other event. If
such Selling Shareholder should die or become incapacitated, or if any other
event should occur affecting the legal status or capacity of such Selling
Shareholder before the delivery of the Shares, to be sold by a Selling
Shareholder hereunder, the documents evidencing the Shares, to be sold by such
Selling Shareholder shall be delivered by an agent or representative of the
Selling Shareholder in accordance with the terms and conditions of this
Agreement as if such event had not occurred, regardless of whether or not such
agent or representative shall have received notice thereof.
(c) Certificates for all of the Shares to be sold by such
Selling Shareholder pursuant to this Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or assignment
with signatures guaranteed shall be
12
delivered to the Underwriter pursuant to this Agreement. Such Selling
Shareholder is the record and beneficial owner of the Shares to be sold by the
Selling Shareholder hereunder, free and clear of all liens, encumbrances,
equities or claims and has duly indorsed such securities in blank, and assuming
that the Underwriter acquires its interest in the securities it has purchased
without notice of any adverse claim (within the meaning of Section 8-105 of the
Uniform Commercial Code of the State of New York (the "UCC"), the Underwriter
that has purchased such Shares delivered to the Depository Trust Company ("DTC")
by making payment therefor, as provided herein, and that has had such Shares
credited to its securities account or accounts maintained with DTC will have
acquired a security entitlement (within the meaning of Section 8-102(a)(17) of
the UCC) to such Shares purchased by the Underwriter, and no action based on an
adverse claim, may be asserted against the Underwriter with respect to such
Shares.
(d) No Consent of, from or with any judicial, regulatory or
other legal or governmental agency or body or any third party, foreign or
domestic, is required for the execution, delivery and performance by the Selling
Shareholder of its obligations under this Agreement or consummation by the
Selling Shareholders of the transactions contemplated herein, except such as
have been obtained under the Securities Act and such as may be required under
the state or foreign securities laws, or the blue sky laws of any jurisdiction.
(e) The execution, delivery and performance of this Agreement
by such Selling Shareholder and performance of its obligations under any of the
other transactions contemplated herein by the Selling Shareholder or the
fulfillment of the terms hereof by the Selling Shareholder will not (A) conflict
with, result in a breach or violation of, or constitute a default (or an event
that with notice or lapse of time, or both, would constitute a default) under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Selling Shareholder pursuant to any law, statute,
rule or regulation or the terms of any indenture or other agreement or
instrument to which such Selling Shareholder is party or bound, or to which any
of the property or assets of such Selling Shareholder is subject, or (B) if such
Selling Shareholder is not a natural person, result in any violation of the
provisions of any charter or bylaws or certificate of formation, trust
agreement, partnership agreement, articles of partnership or other
organizational documents, as applicable, of the Selling Shareholder, or (C)
result in any violation or breach of any judgment, order, decree statute, rule
or regulation applicable to such Selling Shareholder of any court or any public,
governmental or regulatory agency or body, administrative agency or arbitrator
having jurisdiction over such Selling Shareholder, except in the case of clauses
(A) and (C) above, for any such breach, violation or breach that would not have
an adverse effect on the ability of such Selling Shareholder to perform its
obligations hereunder.
(f) Such Selling Shareholder does not have any registration or
other similar rights to have any equity or debt securities registered for sale
by the Company under the Registration Statement or included in the offering of
the Shares, except for such rights as have been waived or which are described in
the Registration Statement, the Pricing Prospectus and the Prospectus (and which
have been complied with).
(g) Such Selling Shareholder does not have, or has waived
prior to the date hereof, any preemptive right, co-sale right or right of first
refusal or other similar right to
13
purchase any of the Shares that are to be sold by any other Selling Shareholder
to the Underwriter pursuant to this Agreement.
(h) Except as disclosed in the Registration Statement, the
Pricing Prospectus and the Prospectus, there are no contracts, agreements or
understandings between such Selling Shareholder and any person that would give
rise to a valid claim against the Company or the Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this offering.
(i) Such Selling Shareholder has no knowledge of any
misstatement of a material fact or failure to state a material fact necessary to
make the statements in the Pricing Disclosure Package and the Prospectus, in
light of the circumstances under which they were made, not misleading, provided,
however, that such statements shall be limited to those included under the
heading "Selling Shareholders" which relates to such Selling Shareholder.
(j) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or that could be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
(k) Such Selling Shareholder has not distributed and will not
distribute, prior to the completion of the Underwriter's distribution of the
Shares, any "written communication" (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer to buy the
Shares other than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act,
or (ii) the Pricing Prospectus or the Prospectus.
Any certificate signed by or on behalf of a Selling Shareholder and
delivered to the Underwriter or to counsel for the Underwriter shall be deemed
to be a representation and warranty by such Selling Shareholder to the
Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, each Selling Shareholder, severally and not jointly, agrees to sell to
the Underwriter and the Underwriter agrees to purchase from the Selling
Shareholders, at a purchase price per share of S41.25, the Shares.
(b) Payment of the purchase price for, and delivery of certificates
representing, the Shares shall be made at the office of Weil, Gotshal & Xxxxxx
LLP ("Underwriter's Counsel"), or at such other place as shall be agreed upon by
the Underwriter and the Company, at 10:00 A.M., New York City time, on November
15, 2006, or such other time and date as the Underwriter and the Company may
agree upon in writing (such time and date of payment and delivery being herein
called the "Closing Date"). Payment of the purchase price for the Shares shall
be made by wire transfer in same day funds to or as directed in writing by the
Selling Shareholders upon delivery of certificates for the Shares to the
Underwriter through the facilities of The Depository Trust Company for the
account of the Underwriter. Each Selling
14
Shareholder hereby agrees that it will pay all stock transfer taxes, stamp
duties and other similar taxes, if any, payable upon the sale or delivery of the
Shares to be sold by the Selling Shareholders to the Underwriter, or otherwise
in connection with the performance of the Selling Shareholders' obligations
hereunder. Certificates for the Shares shall be registered in such name or names
and shall be in such denominations as the Underwriter may request. The Company
will permit the Underwriter to examine and package such certificates for
delivery at least one full business day prior to the Closing Date.
(c) Each of the Company and each Selling Shareholder acknowledges
and agrees that (i) the terms of this Agreement and the Offering (including the
price of the Shares) were negotiated at arm's length between sophisticated
parties represented by counsel; (ii) no fiduciary, advisory or agency
relationship between the Company or a Selling Shareholder and the Underwriter
has been created as a result of any of the transactions contemplated by this
Agreement or the process leading to such transactions, irrespective of whether
the Underwriter has advised or is advising any such party on other matters;
(iii) the Underwriter's obligations to the Company and such Selling Shareholder
in respect of the Offering are set forth in this Agreement in their entirety;
and (iv) it has obtained such legal, tax, accounting and other advice as it
deems appropriate with respect to this Agreement and the transactions
contemplated hereby and any other activities undertaken in connection therewith,
and it is not relying on the Underwriter with respect to any such matters.
4. Offering. Upon authorization of the release of the Shares by the
Underwriter, the Underwriter proposes to offer the Shares for sale to the public
upon the terms and conditions set forth in the Prospectus.
5. Covenants of the Company; Covenants of the Selling Shareholders.
(a) In addition to the other covenants and agreements of the Company
contained herein, the Company further covenants and agrees with the Underwriter
that:
(i) The Company shall prepare the Prospectus in a form
approved by you and file such Prospectus pursuant to, and within the time period
specified in, Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act;
the Company shall file no further amendment to the Registration Statement or
amendment or supplement to the Prospectus to which you shall object in writing
after being furnished in advance a copy thereof and given a reasonable
opportunity to review and comment thereon; the Company shall notify you promptly
(and, if requested by the Underwriter, confirm such notice in writing) (A) when
the Registration Statement and any amendments thereto become effective, (B) of
any request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information, (C)
of the Company's intention to file, or prepare any supplement or amendment to,
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
Issuer Free Writing Prospectus, (D) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (E) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto, or suspending the use of any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus or, in each
case, of the initiation or threatening of any proceedings therefore, (F) of the
receipt of any comments from
15
the Commission, and (G) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every effort to prevent the issuance of any such stop order
and, if issued, to obtain the lifting of such order as soon as possible.
(ii) If at any time when a prospectus relating to the Shares
(or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities
Act) is required to be delivered under the Securities Act, any event shall have
occurred as a result of which the Pricing Disclosure Package (prior to the
availability of the Prospectus) or the Prospectus as then amended or
supplemented would, in the judgment of the Underwriter or the Company, include
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances existing at the time of delivery of such Pricing
Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in
Rule 173(a) under the Securities Act) to the purchaser, not misleading, or if to
comply with the Securities Act, the Exchange Act or the Rules and Regulations it
shall be necessary at any time to amend or supplement the Pricing Disclosure
Package, the Prospectus or the Registration Statement, or to file any document
incorporated by reference in the Registration Statement or the Prospectus or in
any amendment thereof or supplement thereto, the Company will notify you
promptly and prepare and file with the Commission an appropriate amendment,
supplement or document (in form and substance satisfactory to the Underwriter)
that will correct such statement or omission or effect such compliance, and will
use its best efforts to have any amendment to the Registration Statement
declared effective as soon as possible.
(iii) The Company will not, without the prior consent of the
Underwriter, (A) make any offer relating to the Shares that would constitute a
"free writing prospectus" as defined in Rule 405 under the Securities Act,
except for any Issuer Free Writing Prospectus set forth in Annex III hereto and
any electronic road show previously approved by the Underwriter, or (B) file,
refer to, approve, use or authorize the use of any "free writing prospectus" as
defined in Rule 405 under the Securities Act with respect to the Offering or the
Shares. If at any time any event shall have occurred as a result of which any
Issuer Free Writing Prospectus as then amended or supplemented would, in the
judgment of the Underwriter or the Company, conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus as then amended
or supplemented or would, in the judgment of the Underwriter or the Company,
include an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances existing at the time of delivery to the purchaser,
not misleading, or if to comply with the Securities Act or the Rules and
Regulations it shall be necessary at any time to amend or supplement any Issuer
Free Writing Prospectus, the Company will notify the Underwriter promptly and,
if requested by the Underwriter, prepare and furnish without charge to the
Underwriter an appropriate amendment or supplement (in form and substance
satisfactory to the Underwriter) that will correct such statement, omission or
conflict or effect such compliance.
(iv) The Company has complied and will comply with the
requirements of Rule 433 with respect to each Issuer Free Writing Prospectus
including, without limitation, all prospectus filing, record retention and
legending requirements applicable to each such Issuer Free Writing Prospectus.
16
(v) The Company will promptly deliver to the Underwriter such
number of copies of any Preliminary Prospectus, the Prospectus, the Registration
Statement, any Issuer Free Writing Prospectus and all amendments of and
supplements to such documents, if any, and all documents incorporated by
reference in the Registration Statement and Prospectus or any amendment thereof
or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New
York time, on the business day next succeeding the date of this Agreement and
from time to time thereafter, the Company will furnish the Underwriter with
copies of the Prospectus in New York City in such quantities as you may
reasonably request.
(vi) Promptly from time to time, the Company will use its best
efforts, in cooperation with the Underwriter, to qualify the Shares for offering
and sale under the securities laws relating to the offering or sale of the
Shares of such jurisdictions, domestic or foreign, as the Underwriter may
designate and to maintain such qualification in effect for so long as required
for the distribution thereof; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
(vii) The Company will make generally available to its
security holders as soon as practicable, but in any event not later than twelve
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Securities Act), an earnings statement of the Company and
the Subsidiaries (which need not be audited) complying with Section 1l(a) of
the Securities Act and the Rules and Regulations (including, at the option of
the Company, Rule 158).
(viii) During the period of five years from the effective date
of the Registration Statement, to the extent not available on XXXXX, the Company
will furnish to you copies of all reports or other communications (financial or
other) furnished to security holders or from time to time published or publicly
disseminated by the Company, and will deliver to you (i) as soon as they are
available, copies of any reports, financial statements and proxy or information
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
information to be on a consolidated basis to the extent the accounts of the
Company and the Subsidiaries are consolidated in reports furnished to its
security holders generally or to the Commission).
(ix) The Company will use its best efforts to list the Shares,
subject to notice of issuance, on the NYSE.
(x) The Company, during the period when a prospectus (or, in
lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is
required to be delivered under the Securities Act in connection with the offer
or sale of the Shares, will file all reports and other documents required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and the Rules and Regulations within the time periods
required thereby.
17
(xi) The Company will not take, and will cause its affiliates
(within the meaning of Rule 144 under the Securities Act) not to take, directly
or indirectly, any action which constitutes or is designed to cause or result
in, or which could reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares.
(b) Each Selling Shareholder covenants and agrees with the
Underwriter:
(i) To deliver to the Underwriter prior to the Closing Date, a
properly completed and executed United States Treasury Department Form W-8 (if
the Selling Shareholder is a non-United States Person) or Form W-9 (if the
Selling Shareholder is a United States Person), which in each case may be
replaced by any other applicable form or statement specified by Treasury
Department regulations in lieu thereof;
(ii) To pay or to cause to be paid all transfer taxes, stamp
duties and other similar taxes with respect to the Shares, if any, to be sold by
such Selling Shareholder; and
(iii) Such Selling Shareholder has not, prior to the execution
of this Agreement, distributed any "prospectus" (within the meaning of the
Securities Act) or "written communication" (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or solicitation of an offer to
buy the Shares other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the
Securities Act, or (ii) in connection with the offering or sale of the Shares
other than the Pricing Prospectus, and will not, at any time on or after the
execution of this Agreement, distributed any "prospectus" (within the meaning of
the Securities Act) the Pricing Prospectus and the then most recent Prospectus.
6. Covenant of the Underwriter. The Underwriter covenants and agrees
with the Company that the Underwriter has not used and will not use or refer to
any "free writing prospectus" (as defined in Rule 405 under the Securities Act)
without the prior written consent of the Company if the Underwriter's use of or
reference to such "free writing prospectus" would require the Company to file
with the Commission any "issuer information" (as defined in Rule 433 under the
Securities Act).
7. Payment of Expenses. Whether or not the transactions contemplated
by this Agreement, the Registration Statement and the Prospectus are consummated
or this Agreement is terminated, the Company hereby agrees to pay all costs and
expenses incident to the performance of its obligations hereunder, including the
following: (i) all expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus, any Issuer
Free Writing Prospectus, the Prospectus and any and all amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriter and dealers; (ii) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Securities Act and the Offering; (iii) the cost of producing
this Agreement, blue sky survey, closing documents and other instruments,
agreements or documents (including any compilations thereof) in connection with
the Offering; and (iv) all expenses in connection with the qualification of the
Shares for offering and sale
18
under state or foreign securities or blue sky laws as provided in Section 4(f)
hereof, including the fees and disbursements of counsel for the Underwriter in
connection with such qualification or offering and in connection with any blue
sky survey. The Company also will pay or cause to be paid: (x) the cost and
charges of any transfer agent or registrar for the Shares; and (y) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section 7. It is
understood, however, that except as provided in Sections 9, 10 and 13 hereof,
the Underwriter will pay all of its own costs and expenses, including the fees
of its counsel and stock transfer taxes on resale of any of the Shares by them.
Each Selling Shareholder will pay all fees and expenses related to
the offering of the Shares to be sold by it, including (i) the fees and
disbursements of its counsel, if any, and (ii) any applicable stock transfer or
other taxes. Notwithstanding the foregoing, nothing herein shall affect any
agreement that the Company and the Selling Shareholders may make for the sharing
or allocation of such costs and expenses.
8. Conditions of Underwriter's Obligations. The several obligations
of the Underwriter to purchase and pay for the Shares, as provided herein, shall
be subject to the accuracy of the representations and warranties of the Company
and the Selling Shareholders herein contained, as of the date hereof and as of
the Closing Date (for purposes of this Section 8, "Closing Date" shall refer to
the Closing Date for the Shares), to the performance by the Company of all of
its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 5(a)(i) hereof; no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto, and no stop order suspending or preventing the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
shall have been issued by the Commission and no proceedings therefor shall have
been initiated or threatened by the Commission; all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction; and all necessary regulatory or stock exchange
approvals shall have been received.
(b) At the Closing Date you shall have received the written opinion
of each of LeBoeuf, Lamb, Xxxxxx & XxxXxx LLP, counsel for the Company,
Xxxxxxxxxx Xxxxxxxx LLP, Georgia counsel to the Company, and Xxxx X. Xxxxxxx,
Vice President and Secretary of the Company, dated the Closing Date and
addressed to the Underwriter, in each case in form and substance satisfactory to
you, to the effect set forth in Annex I hereto.
(c) At the Closing Date, you shall have received the favorable
written opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for each of the
Selling Shareholders, dated the Closing Date, addressed to the Underwriter in
the form attached hereto as Annex II.
(d) At the Closing Date, you shall have received the written opinion
of Underwriter's Counsel, dated the Closing Date and addressed to the
Underwriter, in form and substance satisfactory to you, with respect to the
issuance and sale of the Shares, the Registration Statement, the Pricing
Disclosure Package, the Prospectus and such other matters as you may
19
require, and the Company shall have furnished to Underwriter's Counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(e) At the Closing Date you shall have received a certificate of the
Chief Executive Officer and Chief Financial Officer of the Company, dated the
Closing Date, in form and substance satisfactory to you, as to the accuracy of
the representations and warranties of the Company set forth in Section 1 hereof
as of the date hereof and as of the Closing Date, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to the
Closing Date, as to the matters set forth in subsections (a), (h) and (i) of
this Section 8, and as to such other matters as you may reasonably request.
(f) At the Closing Date, you shall have received a comfort letter,
from KPMG LLP, independent public accountants for the Company, dated,
respectively, as of the date of this Agreement and as of the Closing Date,
addressed to the Underwriter and in form and substance satisfactory to the
Underwriter and Underwriter's Counsel.
(g) At the Closing Date, you shall have received a comfort letter,
from Ernst & Young LLP, former independent public accountants for the Company,
dated, respectively, as of the date of this Agreement and as of the Closing
Date, addressed to the Underwriter and in form and substance satisfactory to the
Underwriter and Underwriter's Counsel.
(h) (i) Neither the Company nor any Subsidiary shall have sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus, any material loss or
interference with its business or properties from fire, explosion, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, other than as
set forth in the Pricing Prospectus (exclusive of any supplement thereto); and
(ii) subsequent to the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto subsequent to the
date hereof) and the Pricing Prospectus (exclusive of any supplement thereto),
there shall not have been any change in the capital stock or long-term or
short-term debt of the Company or any Subsidiary or any change or any
development involving a change, whether or not arising from transactions in the
ordinary course of business, in the business, general affairs, management,
condition (financial or otherwise), results of operations, shareholders' equity,
properties or prospects of the Company and the Subsidiaries, individually or
taken as a whole, the effect of which, in any such case described above, is, in
the judgment of the Underwriter, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering on the terms and in
the manner contemplated in the Pricing Disclosure Package (exclusive of any such
supplement).
(i) On or after the Applicable Time, (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
or the Company's financial strength or claims paying ability by any "nationally
recognized statistical rating organization", as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, 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 or preferred stock or the Company's financial strength
or claims paying ability.
20
(j) At the Closing Date, the Shares shall have been approved for
listing upon notice of issuance on the NYSE.
(k) At the Closing Date, you shall have received a certificate of an
authorized representative of each Selling Shareholder, dated the Closing Date,
to the effect that the representations and warranties of such Selling
Shareholder set forth in Section 2 hereof are accurate and that such Selling
Shareholder has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date.
(l) On or prior to the Closing Date, you shall have received a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof) from each Selling Shareholder.
(m) The Company shall have furnished the Underwriter and
Underwriter's Counsel with such other certificates, opinions or other documents
as they may have reasonably requested.
If any of the conditions specified in this Section 8 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriter's Counsel pursuant to this Section 8 shall not be satisfactory in
form and substance to the Underwriter and to Underwriter's Counsel, all
obligations of the Underwriter hereunder may be cancelled by the Underwriter at,
or at any time prior to, the Closing Date. Notice of such cancellation shall be
given to the Company in writing or by telephone. Any such telephone notice shall
be confirmed promptly thereafter in writing.
9. Indemnification.
(a) The Company shall indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
affiliate of the Underwriter within the meaning of Rule 405 under the Securities
Act from and against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or in any Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus, or in any supplement thereto or amendment thereof, or
in any Issuer Free Writing Prospectus, or in any "issuer information" (as
defined in Rule 433(h)(2) under the Securities Act) filed or required to be
filed pursuant to Rule 433(d) under the Securities Act, or (ii) the omission or
alleged omission to state (A) in the Registration Statement, as originally filed
or any amendment thereof, a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (B) in any
Preliminary Prospectus, the Pricing Disclosure Package or the
21
Prospectus, or in any supplement thereto or amendment thereof, or in any Issuer
Free Writing Prospectus, or in any "issuer information" (as defined in Rule
433(h)(2) under the Securities Act) filed or required to be filed pursuant to
Rule 433(d) under the Securities Act, a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company will not be liable in any such case to the extent but only to
the extent that any such loss, liability, claim, damage or expense arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Underwriter expressly for use therein. The parties agree that such information
provided by or on behalf of the Underwriter consists solely of the material
referred to in Section 17 hereof. This indemnity agreement will be in addition
to any liability which the Company may otherwise have, including but not limited
to other liability under this Agreement.
(b) Each Selling Shareholder, severally and not jointly, shall
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act and each affiliate of the Underwriter
within the meaning of Rule 405 under the Securities Act from and against any and
all losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to reasonable attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact relating to such
Selling Shareholder contained in the Registration Statement, as originally filed
or any amendment thereof, or any Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus, or in any supplement thereto or amendment thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact relating to such Selling Shareholder required to be stated
therein or necessary to make (i) the statements in the Registration Statement,
as originally filed or any amendment thereof, not misleading, or (ii) the
statements in any Preliminary Prospectus, the Pricing Disclosure Package, or the
Prospectus, or any supplement thereto or amendment thereof, in light of the
circumstances under which they were made, not misleading; provided, however,
that such Selling Shareholder will be liable in any such case to the extent but
only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by such Selling
Shareholder expressly for use therein, it being agreed that the only such
information is that which is included under the heading "Selling Shareholders"
which relates to such Selling Shareholder; and, provided further, however, that
in no such case shall any Selling Shareholder be liable or responsible under
this subsection (b) and Section 10 for any amount in excess of the proceeds (net
of the underwriting discount but before deducting other expenses) applicable to
the Shares sold by such Selling Shareholder pursuant to the transactions
contemplated hereby. This indemnity agreement will be in addition to any
liability that any Selling Shareholder may otherwise have including under this
Agreement.
22
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each Selling Shareholder, each of the directors of
the Company, each of the officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to reasonable attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged untrue statement
of a material fact included in any Preliminary Prospectus, the Pricing
Disclosure Package or the Prospectus, or in any amendment thereof or supplement
thereto, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of the Underwriter specifically for use therein;
provided, however, that in no case shall the Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares to be purchased by the Underwriter hereunder. The parties agree that
such information provided by or on behalf of the Underwriter consists solely of
the material referred to in Section 17 hereof.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of any claims or the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve
the indemnifying party from any liability which it may have under this Section 9
to the extent that it is not materially prejudiced as a result thereof or
otherwise has notice of any such action, and in any event shall not relieve it
from any liability that such indemnifying party may have otherwise than on
account of the indemnity agreement hereunder). In case any such claim or action
is brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate, at its own expense in the defense of such action, and to the extent
it may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided
however, that counsel to the indemnifying party shall not (except with the
written consent of the indemnified party) also be counsel to the indemnified
party. Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been authorized
in writing by one
23
of the indemnifying parties in connection with the defense of such action, (ii)
the indemnifying parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of commencement of
the action, (iii) the indemnifying party does not diligently defend the action
after assumption of the defense, or (iv) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or ail of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 9 or Section 10 hereof (whether or not the indemnified party is an
actual or potential party thereto), unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party.
10. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 9 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Selling Shareholders on the one hand and the Underwriter on the other shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, reasonable slegal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and any Selling Shareholder,
any contribution received by the Company and any Selling Shareholder from
persons, other than the Underwriter, who may also be liable for contribution,
including persons who control the Company or any Selling Shareholder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
officers of the Company who signed the Registration Statement and directors of
the Company) as incurred to which the Company, any Selling Shareholder and one
or more of the Underwriter may be subject, in such proportions as is appropriate
to reflect the relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriter on the other hand from the
Offering or, if such allocation is not permitted by applicable law, in such
proportions as are appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Selling
Shareholders on the one and the Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders on
the one hand and the Underwriter on the other shall be deemed to be in the same
proportion as (x) the total proceeds from the Offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and the Selling Shareholders bears to (y) the underwriting discount or
commissions received by the Underwriter, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of each of the Company
and the Selling Shareholders on the one hand and of the Underwriter on the other
shall be determined by reference to, among other
24
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or a Selling Shareholder on the one hand or the
Underwriter on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this Section 10 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
10 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any judicial, regulatory or
other legal or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section 10,
(i) the Underwriter shall not be required to contribute any amount in excess of
the amount by which the discounts and commissions applicable to the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission and (ii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 10, each person, if any, who controls the Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act and each
affiliate of the Underwriter within the meaning of Rule 405 under the Securities
Act shall have the same rights to contribution as the Underwriter, and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company and any
Selling Shareholder, as applicable, subject in each case to clauses (i) and (ii)
of the immediately preceding sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 10 or otherwise. The
obligations of the Company and the Selling Shareholders to contribute pursuant
to this Section 10 are joint and several.
11. Default by Selling Shareholders.
(a) If any Selling Shareholder or Selling Shareholders shall default
in its or their obligation to sell and deliver any Shares hereunder, then the
Underwriter may, by notice to the Company, terminate this Agreement without any
liability on the part of any non-defaulting party except that the provisions of
Sections 1, 2, 7, 9, 10, 12 and 13 hereof shall remain in full force and effect.
No action taken pursuant to this Section 11 shall relieve any Selling
Shareholder so defaulting from liability, if any, in respect of such default.
25
(b) In the event that such default occurs and the Underwriter agrees
to proceed with the Offering, then the Underwriter may, at its option, by notice
to the Selling Shareholders, postpone the Closing Date, for a period not
exceeding five business days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus which,
in the opinion of Underwriter's Counsel, may thereby be made necessary or
advisable; and in no event shall the Company be obligated to sell Shares
hereunder.
12. Survival of Representations and Agreements. All representations
and warranties, covenants and agreements of the Underwriter, the Company and the
Selling Shareholders contained in this Agreement or in certificates of officers
of the Company or any Subsidiary or of the Selling Shareholders submitted
pursuant hereto, including the agreements contained in Section 5 and 6, the
indemnity agreements contained in Section 9 and the contribution agreements
contained in Section 10, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriter or any
controlling person thereof or by or on behalf of the Company or any Selling
Shareholder, any of their officers and directors or any controlling person
thereof, and shall survive delivery of and payment for the Shares to and by the
Underwriter. The representations contained in Section 1 and the agreements
contained in Sections 5, 6, 9, and 14 hereof shall survive any termination of
this Agreement, including termination pursuant to Section 11 or 13 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective when the parties hereto
have executed and delivered this Agreement.
(b) The Underwriter shall have the right to terminate this Agreement
at any time prior to the Closing Date if, at or after the Applicable Time, (i)
any domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Underwriter will in the immediate future
materially disrupt, the market for the Company's securities or securities in
general; or (ii) a suspension or material limitation in trading in securities
generally on the NYSE or Nasdaq shall have occurred; or (iii) a suspension or
material limitation in trading in the Company's securities on the NYSE shall
have occurred; or (iv) a banking moratorium has been declared by any state or
federal authority or any material disruption in commercial banking or securities
settlement or clearance services shall have occurred; or (v) any downgrading
shall have occurred in the Company's corporate credit rating or the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act) or any such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities; or (vi) (A)
there shall have occurred any outbreak or escalation of hostilities or acts of
terrorism involving the United States or there is a declaration of a national
emergency or war by the United States or (B) there shall have been any other
calamity or crisis or any change in political, financial or economic conditions
if the effect of any such event in (A) or (B), in the judgment of the
Underwriter, makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Shares on the terms and in the manner contemplated by
the Prospectus,
26
(c) Any notice of termination pursuant to this Section 13 shall be
in writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof, or if the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriter set
forth herein is not satisfied or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof, the Company will, subject to demand by the Underwriter,
reimburse the Underwriter for all out-of-pocket expenses (including the fees and
expenses of its counsel), incurred by the Underwriter in connection herewith.
14. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing, and:
(a) if sent to the Underwriter, shall be mailed, delivered, or faxed
and confirmed in writing, to the Underwriter x/x Xxxx, Xxxxxx & Xx, Xxx., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention; Xxxxxxx Parish, Senior
Managing Director, Equity Transactions Group, with a copy to Underwriter's
Counsel at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxx, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to the Company and its counsel at the addresses set forth
in the Registration Statement, Attention: Xxxx X. Xxxxxxx, Vice President and
Secretary;
(c) if sent to the Selling Shareholders, shall be mailed, delivered
or faxed and confirmed in writing to each of the following: Texas Pacific Group,
000 Xxxxxxxx Xx., Xxxxx 0000, Xxxx Xxxxx, XX 00000, Fax: (000) 000-0000,
Attention: Xxxxx X. Xxxx, Esq., Acting General Counsel; Xxxxxx X. Xxx Partners,
LP, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Fax: (000) 000-0000, Attention:
Xxxxxxx X. Xxxxxx, Director and Chief Financial Officer; Evercore Capital
Partners, 000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxx, XX 00000, Fax: (310)
000-0000, Attention: Xxx Xxxx, Vice President;
provided, however, that any notice to the Underwriter pursuant to Section 9
shall be delivered or sent by mail or facsimile transmission to the Underwriter
at its address set forth in its acceptance facsimile to the Underwriter, which
address will be supplied to any other party hereto by the Underwriter upon
request. Any such notices and other communications shall take effect at the time
of receipt thereof.
15. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Underwriter, the Company and the Selling
Shareholders and the controlling persons, directors, officers, employees and
agents referred to in Sections 9 and 10 hereof, and their respective successors
and assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the parties hereto and said controlling persons and their respective successors,
officers, directors, heirs and legal representatives, and it is not for the
benefit of any other person, firm or corporation. The term
27
"successors and assigns" shall not include a purchaser, in its capacity as such,
of Shares from the Underwriter.
16. Governing Law and Jurisdiction; Waiver of Jury Trial. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Each of the Company and each Selling Shareholder irrevocably
(a) submits to the jurisdiction of any court of the State of New York or the
United State District Court for the Southern District of the State of New York
for the purpose of any suit, action, or other proceeding arising out of this
Agreement, or any of the agreements or transactions contemplated by this
Agreement, the Registration Statement and the Prospectus (each, a "Proceeding"),
(b) agrees that all claims in respect of any Proceeding may be heard and
determined in any such court, (c) waives, to the fullest extent permitted by
law, any immunity from jurisdiction of any such court or from any legal process
therein, (d) agrees not to commence any Proceeding other than in such courts,
and (e) waives, to the fullest extent permitted by law, any claim that such
Proceeding is brought in an inconvenient forum. EACH OF THE COMPANY (ON BEHALF
OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS
RESPECTIVE EQUITY HOLDERS AND CREDITORS) AND EACH SELLING STOCKHOLDER HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
17. The parties acknowledge and agree that, for purposes of Sections
1(b), 1(c), and 9 hereof, the information provided by or on behalf of the
Underwriter consists solely of the material included in paragraphs 3 and 5 under
the caption "Underwriting" in the Issuer Free Writing Prospectus listed in Annex
III and paragraphs 4 and 9 under the caption "Underwriting" in the Prospectus.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of
a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
19. 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.
20. Time is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
[signature page follows]
28
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
FIDELITY NATIONAL INFORMATION SERVICES, INC
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and Secretary
TPG FNIS HOLDINGS, LLC
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III Inc., its general partner
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
TPG PARALLEL III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
TPG INVESTORS III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
TPG DUTCH PARALLEL III, C.V.
By: TPG GenPar Dutch, L.L.C., its general
partner
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
FOF PARTNERS III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
FOF PARTNERS III-B, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
2
THL FNIS HOLDINGS LLC
By: THL Equity Advisors V, LLC, its general
partner
By: Xxxxxx X. Xxx Partners, L.P., its sole member
By: Xxxxxx X. Xxx Advisors, LLC, its general
partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXX X. XXX EQUITY (CAYMAN) FUND V, L.P.
By: THL Equity Advisors V, LLC, its general
partner
By: Xxxxxx X. Xxx Partners, L.P., its sole
member
By: Xxxxxx X. Xxx Advisors, LLC, its general
partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXX X. XXX INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp its General
Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX INVESTMENTS HOLDINGS, LLC
By: Xxxxxx Investments, LLC, its Managing Member
By: Xxxxxx X. Xxx Advisors, LLC, attorney-in-fact
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXX INVESTMENTS EMPLOYEES' SECURITIES COMPANY I, LLC
By: Xxxxxx Investments Holdings, LLC, its
Managing Member
By: Xxxxxx Investments, LLC, its Managing Member
By: Xxxxxx X. Xxx Advisors, LLC, attorney-in-fact
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXX INVESTMENTS EMPLOYEES' SECURITIES COMPANY II, LLC
By: Xxxxxx Investments Holdings, LLC, its
Managing Member
By: Xxxxxx Investments, LLC, its Managing Member
By: Xxxxxx X. Xxx Advisors, LLC, attorney-in-fact
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
EVERCORE METC CAPITAL PARTNERS II L.P.
By: Evercore Partners II L.L.C., its General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Managing Director
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxx Parish
--------------------------------------------
Name: Xxxxxxx Parish
Title: Senior Managing Director
SCHEDULE I
Number of
Shares
Selling Shareholder to be Sold
THL FNIS Holdings, LLC 2,516,390
Xxxxxx X. Xxx Equity (Cayman) Fund V, L.P. 27,529
Xxxxxx Investment Holdings, LLC 15,658
Xxxxxx Investments Employees' Securities Company I LLC 13,455
Xxxxxx Investments Employees' Securities Company II LLC 12,013
Xxxxxx X. Xxx Investors Limited Partnership 14,955
TPG FNIS Holdings, LLC 2,395,026
TPG Parallel III, L.P. 103,137
TPG Investors III, L.P. 52,018
FOF Partners III, L.P. 1,251
FOF Partners III-B, L.P. 27,810
TPG Dutch Parallel III, C.V. 20,758
Evercore METC Capital Partners II, L.P. 346,600
---------
TOTAL 5,546,600
SCHEDULE II
Subsidiaries
FIS ENTITIES DOMICILE
------------ --------
Fidelity Information Services, Inc. AK
Aurum Technology, Inc. DE
Fidelity National Information Solutions, Inc. DE
InterCept, Inc. GA
LSI Title Agency, Inc. IL
LSI Appraisal, LLC DE
Fidelity National Tax Service, Inc. CA
Investment Property Exchange Services, Inc. CA
LSI Title Company CA
CERTEGY ENTITIES
Fidelity National Card Services, Inc. FL
(f//k/a/ Certegy Card Services, Inc.)
Certegy Check Services, Inc. DE
2
ANNEX I
[Form of Opinion of Company Counsel(1)]
1
ANNEX II
[Form of Opinion of Selling Shareholders' Counsel]
ANNEX III
[Issuer Free Writing Prospectuses]
