<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON DECEMBER 22, 1997. REGISTRATION NO. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
EQUIFAX INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-0401110
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 885-8000
(Address, including zip code, and telephone number,
including area code, of registrant's executive offices)
__________________
BRUCE S. RICHARDS, ESQ.
Corporate Vice President and General Counsel
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 885-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
__________________
With a copy to:
J. William Gibson, Esq.
Adam L. Salassi, Esq.
Hunton & Williams
NationsBank Plaza, Suite 4100
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
(404) 888-4000
__________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective.
__________________
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] _______________________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
__________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Title of Shares Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per unit aggregate offering price registration fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.25
par value per share............. 266,374 $33.8125/(1)/ $9,006,771/(1)/ $2,657
===============================================================================================================================
</TABLE>
(1) Estimated solely for the purposes of determining the registration fee. This
amount, calculated pursuant to Rule 457(c), was based on the average of the
high and low prices of the Registrant's Common Stock on December 19, 1997,
as reported on the New York Stock Exchange.
_______________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE
AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PROSPECTUS
- --------------------------------------------------------------------------------
266,374 Shares
EQUIFAX INC.
COMMON STOCK
This prospectus relates to 266,374 shares (the "Shares") of common stock,
$1.25 par value per share (the "Common Stock"), of Equifax Inc., a Georgia
corporation (the "Company"), that may be offered from time to time by certain
shareholders (the "Selling Shareholders"). See "Selling Shareholders." The
Shares were acquired by the Selling Shareholders as a result of the acquisition
by the Company of Goldleaf Technologies, Inc., a Georgia corporation
("Goldleaf"), a corporation previously owned by the Selling Shareholders. The
Shares were issued pursuant to an exemption from the registration requirements
of the Securities Act of 1933, as amended (the "Securities Act"), provided by
Section 4(2) and the regulations promulgated thereunder. In connection with the
acquisition, the Company entered into a Registration Rights Agreement (the
"Registration Agreement"), dated December 18, 1997, with the Selling
Shareholders pursuant to which it has agreed to file a registration statement
with the Securities and Exchange Commission (the "Commission") to register the
Shares held by the Selling Shareholders for resale by the Selling Shareholders.
The Registration Statement of which this Prospectus is a part was filed with the
Commission pursuant to the Registration Agreement. The Selling Shareholders may
be deemed to be "underwriters" within the meaning of the Securities Act. See
"Sale of Shares" below.
All or a portion of the Shares may be offered by the Selling Shareholders
from time to time (i) in transactions (which may include block transactions) on
the New York Stock Exchange, (ii) in negotiated transactions (including sales
pursuant to pledges), or (iii) a combination of such methods of sale, at fixed
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices, or at negotiated prices.
This Prospectus also may be used, with the Company's prior written consent, by
donees of the Selling Shareholders or by other persons acquiring the Shares and
who wish to offer and sell such Shares under circumstances requiring or making
desirable its use and who have complied with the applicable requirements
contained in the Registration Agreement. The Selling Shareholders may effect
such transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Shareholders and/or the purchasers of the Shares
for whom such broker-dealers may act as agents or to whom they sell as
principals, or both (which compensation as to a particular broker-dealer might
be in excess of customary compensation). See "Selling Shareholders" and "Sale
of Shares" below.
None of the proceeds from the sale of the Shares by the Selling
Shareholders will be received by the Company. The Company has agreed to bear
all expenses in connection with the registration of the Shares being offered by
the Selling Shareholders. The Company also has agreed to indemnify the Selling
Shareholders against certain liabilities, including liabilities under the
Securities Act.
The shares of Common Stock of the Company are traded on the New York Stock
Exchange under the symbol EFX. On December 19, 1997, the last sales price for
the shares of Common Stock as reported on the New York Stock Exchange composite
tape was $33.75 per share.
________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR AD-
EQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
_____________________
The date of this Prospectus is December 22, 1997
1
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, and other information with the
Commission. Such reports, proxy statements, and other information filed by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549;
as well as at the Regional Offices of the Commission at 7 World Trade Center,
Suite 1300, New York, New York 10048; and 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained (at prescribed rates)
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission maintains a World Wide Web site on the
Internet that contains reports, proxy and information statements and other
information regarding registrants such as the Company, that file electronically
with the Commission. Such reports, proxy and information statements and other
information may be found at the Commission's site address: http://www.sec.gov.
The Company's Common Stock is listed on the New York Stock Exchange. Reports,
proxy statements and other information concerning the Company can be inspected
at the office of such Exchange, located at 20 Broad Street, New York, New York
10005.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act. This Prospectus omits
certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement and related exhibits for
further information with respect to the Company and the Shares offered hereby.
Any statements contained herein concerning the provisions of any document are
not necessarily complete, and, in each instance, reference is made to the copy
of such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission by the Company (File No.
1-6605) are hereby incorporated by reference into this Prospectus:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the first fiscal
quarter ended March 31, 1997;
(3) The Company's Quarterly Report on Form 10-Q for the second fiscal
quarter ended June 30, 1997;
(4) The Company's Quarterly Report on Form 10-Q for the third fiscal
quarter ended September 30, 1997;
(5) The Company's Report on Form 8-K, as filed with the Commission on July
18, 1997;
(6) The Company's Report on Form 8-K, as filed with the Commission on
August 1, 1997;
(7) The Company's Report on Form 8-K, as filed with the Commission on
August 13, 1997;
(8) All other documents filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Company's Annual Report on Form 10-K for the year ended December
31, 1996; and
(9) The description of the Company's Common Stock contained in its
Registration Statement on Form 10 under the Exchange Act, dated
December 31, 1964, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering registered
2
<PAGE>
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in any subsequently filed document that also is or is deemed to be
incorporated by reference herein) modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus. All
information appearing in this Prospectus is qualified in its entirety by
information and financial statements (including notes thereto) appearing in the
documents incorporated by reference herein, except to the extent set forth in
the immediately preceding statement.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, including any beneficial owner, upon written or
oral request of such person, a copy of any or all of the documents incorporated
by reference herein (other than exhibits to such documents, unless such exhibits
are specifically incorporated by reference into the information that the
Prospectus incorporates). Requests should be directed to Bruce S. Richards,
Esq., Corporate Vice President and General Counsel, Equifax Inc., 1600 Peachtree
Street, N.W., Atlanta, Georgia 30309, telephone number (404) 885-8000.
THE COMPANY
The Company is a global leader in providing information, processing,
consulting and software solutions that facilitate and enhance buyer-seller
transactions worldwide. The Company serves businesses in the banking, finance,
retail, credit card, telecommunications, utilities and health care
administration industries.
The Company was incorporated under the laws of the State of Georgia in 1913
and is the successor to a business established in 1899. The address and
telephone number of its principal executive offices are 1600 Peachtree Street,
N.W., Atlanta, Georgia 30309, telephone number (404) 885-8000.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common Stock
offered hereby; nor will such proceeds be available for the Company's use or
benefit.
SELLING SHAREHOLDERS
The following table sets forth (i) the name of each of the Selling
Shareholders, (ii) the number of shares of Common Stock beneficially owned by
each Selling Shareholder prior to the offering, (iii) the number of shares of
Common Stock being offered hereby by each Selling Shareholder, and (iii) the
number of shares of Common Stock beneficial owned by each Selling Shareholder
after completion of the offering:
<TABLE>
<CAPTION>
Shares Beneficially Shares Beneficially
Name of Selling Shareholder Owned Prior to Offering Shares Being Offered /1/ Owned After Offering /1/
- ------------------------------------ --------------------------- ------------------------ ------------------------
<S> <C> <C> <C>
David L. Peterson 126,379 126,379 0
Bobby G. Wetherington /2/ 139,995 139,995 0
TOTAL 266,374 266,374 0
</TABLE>
/1/ Assumes all shares offered hereby have been sold. Because the Selling
Shareholders may sell all, some or none of their respective shares pursuant
to this Prospectus, no actual estimate can be made of the aggregate number
of shares that each Selling Shareholder will own upon completion of the
offering to which this Prospectus relates.
/2/ Includes 6,808 shares owned of record by Mr. Wetherington and 133,187 shares
owned of record by B.G. Wetherington Farms, L.P., of which Mr. Wetherington
is the general partner.
3
<PAGE>
SALE OF SHARES
The sale of the Shares by the Selling Shareholders may be effected from
time to time (i) in transactions (which may include block sales) on the New York
Stock Exchange, (ii) in negotiated transactions (including sales pursuant to
pledges), or (iii) through a combination of such methods of sale, at fixed
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices, or at negotiated prices.
The Selling Shareholders may effect such transactions by selling the Shares to
or through broker-dealers, and such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Selling Shareholders
and/or the purchasers of the Shares for which such broker-dealers may act as
agents or to whom they sell as principals, or both (which compensation as to a
particular broker-dealer may be in excess of customary compensation). This
Prospectus also may be used, with the Company's prior written consent, by donees
of the Selling Shareholders, or by other persons acquiring Shares and who wish
to offer and sell such Shares under circumstances requiring or making desirable
its use and who have complied with the applicable requirements contained in the
Registration Agreement. To the extent required, the Company will file, during
any period in which offers for sale are being made, one or more supplements to
this Prospectus to set forth the names of such donees of Selling Shareholders
and any other material information with respect to the plan of distribution not
previously disclosed.
The Selling Shareholders and any broker-dealers who act in connection with
the sale of the Shares hereunder may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and profit on any resale of the Shares as principals might be deemed to be
underwriting discounts and commissions under the Securities Act. Neither the
Company nor the Selling Shareholders can presently estimate the amount of such
compensation. The Company knows of no existing arrangements between any Selling
Shareholder and any other Selling Shareholder, underwriter, broker, dealer or
other agent relating to the sale or distribution of the Shares. The Company has
agreed to indemnify the Selling Shareholders against certain liabilities,
including liabilities under the Securities Act as underwriters or otherwise.
The Selling Shareholders may indemnify any broker, dealer, agent or underwriter
that participates in transactions involving sales of the Shares against certain
liabilities, including liabilities arising under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of any of the Shares may not simultaneously engage in
market activities with respect to the Common Stock for the applicable period
under Rule 10b-6 prior to the commencement of such distribution. In addition
and without limiting the foregoing, the Selling Shareholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation Rules 10b-5, 10b-6 and 10b-7, which
provisions may limit the timing of sales of any of the Shares by the Selling
Shareholders. All of the foregoing may affect the marketability of the Common
Stock.
The Company has agreed, among other things, to bear all expenses in
connection with the registration of the Shares being offered by the Selling
Shareholders.
In recognition of the fact that the Selling Shareholders, even though
acquiring the Shares with no view towards distribution, may wish to be legally
permitted to sell all or a portion of their Shares when they deem appropriate,
the Company has filed with the Commission a Registration Statement on Form S-3
under the Securities Act with respect to the resale of the Shares from time to
time on the New York Stock Exchange or in negotiated transactions, and has
agreed to prepare and file such amendments and supplements to the Registration
Statement as may be necessary to keep the Registration Statement effective until
all the Shares offered hereby have been sold pursuant thereto or until such
Shares are no longer, by reason of Rule 144(k) under the Securities Act or any
other rule of similar effect, required to be registered for the sale thereof by
the Selling Shareholders. This Prospectus forms a part of such Registration
Statement.
LEGAL OPINIONS
A legal opinion to the effect that the Shares offered hereby by the Selling
Shareholders are validly issued, fully paid and non-assessable has been rendered
by Hunton & Williams, Atlanta, Georgia.
4
<PAGE>
EXPERTS
The consolidated financial statements and financial statement schedules
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1996, incorporated by reference in this Prospectus, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated herein by reference in
reliance upon such reports given upon the authority of said firm as experts in
accounting and auditing.
5
<PAGE>
______________________
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING HEREIN CONTEMPLATED AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT ANY INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
__________________________________
266,374 SHARES
EQUIFAX INC.
COMMON STOCK
__________________________________
TABLE OF CONTENTS
PAGE
----
AVAILABLE INFORMATION....................................................... 2
DOCUMENTS INCORPORATED BY REFERENCE......................................... 2
THE COMPANY................................................................. 3
USE OF PROCEEDS............................................................. 3
SELLING SHAREHOLDERS........................................................ 3
SALE OF SHARES.............................................................. 4
LEGAL OPINIONS.............................................................. 4
EXPERTS..................................................................... 5
___________________________
PROSPECTUS
December 22, 1997
6
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Registration fee to Securities and Exchange Commission................. $ 2,657
Accounting fees and expenses........................................... 2,000
Legal fees and expenses................................................ 5,000
Miscellaneous expenses................................................. 750
Total.................................................................. $10,407
======
The foregoing items, except for the registration fee to the Securities and
Exchange Commission, are estimated.
The Company has agreed to bear all expenses in connection with the
registration of the Shares being offered by the Selling Shareholders.
Item 15. Indemnification of Directors and Officers
The Georgia Business Corporation Code permits, and the Company's Bylaws
require, the Company to indemnify any person who was or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding
(which could include actions, suits or proceedings under the Securities Act of
1933, as amended (the "Securities Act")), whether civil, criminal,
administrative, or investigative (other than an action brought by or on behalf
of the Company) by reason of the fact that such person is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust,
or other enterprise, against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. With
regard to actions or suits by or in the right of the Company, indemnification is
limited to reasonable expenses incurred in connection with the proceeding and
generally is not available in connection with such a proceeding in which such
person was adjudged liable to the Company.
In addition, the Company carries insurance on behalf of directors and
officers that may cover liabilities under the Securities Act.
II-1
<PAGE>
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
- ----------- -----------
2 - Stock Exchange Agreement, dated December 18, 1997, among the
Company, Equifax Payment Services, Inc., Bobby G.
Wetherington, Goldleaf and the former shareholders of
Goldleaf.
4.(a) - See Articles II, III and IV of the Amended and Restated
Articles of Incorporation of the Company (Incorporated herein
by reference to Exhibit "B" to the Company's definitive Proxy
Statement for the 1996 Annual Meeting of Shareholders, filed
March 27, 1996 (File No. 1-6605)).
4.(b) - See Article I of the Bylaws of the Company (Incorporated
herein by reference to Exhibit 3.2 in the Company's Form 10-K
for the year ended December 31, 1996 (File No. 1-6605)).
4.(c) - Loan Agreement (Incorporated herein by reference to Exhibit
4.1 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, as amended by Form 10-K/A filed
April 4, 1996 (File No. 1-6605)).
4.(d) - Portion of Prospectus and Trust Indenture (Incorporated
herein by reference to the Company's Registration Statement
on Form S-3 filed on June 17, 1993 (Reg. No. 33-62820)).
4.(e) - Rights Agreement (Incorporated herein by reference to Exhibit
99 to the Company's Form 8-A filed on November 2, 1995 (File
No. 1-6605)).
5 - Opinion of Hunton & Williams as to legality of the securities
being offered by the Selling Shareholders.
23.(a) - Consent of Hunton & Williams (included in their opinion filed
as Exhibit 5).
23.(b) - Consent of Arthur Andersen LLP
24 - Power of Attorney (included as part of signature pages to
this Registration Statement).
99.(a) - Registration Rights Agreement, dated December 18, 1997, among
the Company and the Selling Shareholders.
ITEM 17. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
II-2
<PAGE>
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act') (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described under Item 15 above, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on December 22, 1997.
EQUIFAX INC.
By: /s/ C. B. Rogers, Jr.
---------------------
Name: C. B. Rogers, Jr.
Title: Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints C.B.
Rogers, Jr. and David A. Post, and each of them, as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
in each of them, for him or her and in his or her name, place and stead, and in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-3 of Equifax Inc., and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or either of them, or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 22nd day of December, 1997.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ C. B. Rogers, Jr. Chairman of the Board
- --------------------------
C. B. Rogers, Jr.
/s/ Daniel W. McGlaughlin Vice Chairman, Chief Executive Officer and Director
- -------------------------- (principal executive officer)
Daniel W. McGlaughlin
/s/ Thomas F. Chapman President, Chief Operating Officer and Director
- --------------------------
Thomas F. Chapman
/s/ David A. Post Corporate Vice President and Chief Financial Officer
- -------------------------- (principal financial officer)
David A. Post
/s/ Philip J. Mazzilli Corporate Vice President, Treasurer and Controller
- -------------------------- (principal accounting officer)
Philip J. Mazzilli
</TABLE>
[signatures continued on following page]
II-4
<PAGE>
[signatures continued]
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
Director
- --------------------------
Lee A. Ault, III
/s/ John L. Clendenin Director
- --------------------------
John L. Clendenin
Director
- --------------------------
A. William Dahlberg
Director
- --------------------------
Robert P. Forrestal
/s/ L. Phillip Humann Director
- --------------------------
L. Phillip Humann
/s/ Larry L. Prince Director
- --------------------------
Larry L. Prince
/s/ D. Raymond Riddle Director
- --------------------------
D. Raymond Riddle
Director
- --------------------------
Betty L. Siegel, Ph.D.
/s/ Louis W. Sullivan Director
- --------------------------
Louis W. Sullivan
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
2 Stock Exchange Agreement, dated December 18, 1997,
among the Company, Equifax Payment Services, Inc.,
Bobby G. Wetherington, Goldleaf and the former
shareholders of Goldleaf.
4.(a) See Articles II, III and IV of the Amended and
Restated Articles of Incorporation of the Company
(Incorporated herein by reference to Exhibit "B" to
the Company's definitive Proxy Statement for the 1996
Annual Meeting of Shareholders, filed March 27, 1996
(File No. 1-6605)).
4.(b) See Article I of the Bylaws of the Company
(Incorporated herein by reference to Exhibit 3.2 in
the Company's Form 10-K for the year ended December
31, 1996 (File No. 1-6605)).
4.(c) Loan Agreement (Incorporated herein by reference to
Exhibit 4.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995, as amended
by Form 10-K/A filed April 4, 1996 (File No. 1-6605)).
4.(d) Portion of Prospectus and Trust Indenture
(Incorporated herein by reference to the Company's
Registration Statement on Form S-3 filed on June 17,
1993 (Reg. No. 33-62820)).
4.(e) Rights Agreement (Incorporated herein by reference to
Exhibit 99 to the Company's Form 8-A filed on
November 2, 1995 (File No. 1-6605)).
5 Opinion of Hunton & Williams as to legality of the
securities being offered by the Selling Shareholders.
23.(a) Consent of Hunton & Williams (included in their
opinion filed as Exhibit 5).
23.(b) Consent of Arthur Andersen LLP
24 Power of Attorney (included as part of signature
pages to this Registration Statement).
99.(a) Registration Rights Agreement, dated December 18,
1997, among the Company and the Selling Shareholders.
<PAGE>
EXHIBIT NO. 2
__________________________________________________________________
__________________________________________________________________
STOCK EXCHANGE AGREEMENT
BY AND AMONG
EQUIFAX PAYMENT SERVICES, INC.
EQUIFAX INC.
AND
GOLDLEAF TECHNOLOGIES, INC.
DAVID L. PETERSON,
B.G. WETHERINGTON FARMS, L.P. and
BOBBY G. WETHERINGTON,
December 18, 1997,
__________________________________________________________________
__________________________________________________________________
<PAGE>
Page
1. DEFINITIONS........................................................... 1
-----------
2. COVENANTS AND UNDERTAKINGS............................................ 5
--------------------------
2.1 Transfer of Company Stock......................................... 5
2.2 Consideration for Transfer........................................ 5
2.3 Conduct of the Business of the Company Prior to the Closing Date.. 5
2.4 Consents and Approvals............................................ 7
2.5 Examination of Records............................................ 7
2.6 Standstill........................................................ 7
2.7 Post-Closing Purchase Price Adjustment............................ 8
2.8 Release by Stockholders and Former Stockholders................... 9
2.9 Stockholder Certifications........................................ 9
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE STOCKHOLDERS..... 10
------------------------------------------------------------------
3.1 Organization and Standing........................................ 10
3.2 Authority and Status............................................. 10
3.3 Capitalization................................................... 10
3.4 Equity Investments............................................... 11
3.5 Liabilities and Obligations of the Company....................... 11
3.6 Taxes............................................................ 11
3.7 Ownership of Assets and Leases, Etc.............................. 12
3.8 Agreement Related to Other Instruments........................... 14
3.9 Absence of Changes............................................... 14
3.10 Litigation and Claims............................................ 16
3.11 Licenses and Permits; Compliance With Law........................ 16
3.12 Contracts, Etc................................................... 17
3.13 Computer Programs and Software................................... 19
3.14 Intellectual Property Matters.................................... 21
3.15 Labor Matters.................................................... 22
3.16 ERISA and Related Matters........................................ 22
3.17 Certain Payments................................................. 24
3.18 Customers........................................................ 25
3.19 Insurance........................................................ 25
3.20 Approvals........................................................ 25
3.21 Transactions with Affiliates..................................... 26
3.22 Exhibits......................................................... 26
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS..................... 26
--------------------------------------------------
4.1 Authority......................................................... 26
4.2 Ownership of Shares............................................... 27
4.3 Agreement Related to Other Instruments............................ 27
<PAGE>
4.4 Litigation and Claims............................................ 27
4.5 Company Representations.......................................... 27
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER....................... 27
-----------------------------------------------
5.1 Organization and Standing....................................... 27
5.2 Corporate Power and Authority................................... 27
5.3 Agreement Does Not Violate Other Instruments.................... 28
5.4 Shares Acquired for Investment.................................. 28
5.5 Stock Will be Validly Issued.................................... 28
5.6 Statements True and Correct..................................... 28
6. ADDITIONAL AGREEMENTS OF THE PARTIES................................... 29
------------------------------------
6.1 Resignation of Directors and Officers........................... 29
6.2 Release by the Stockholders and Former Stockholders............. 29
6.3 Covenant Not to Compete......................................... 29
6.4 Employment Agreement............................................ 29
6.5 Stockholders Agreements......................................... 29
6.6 Cooperation..................................................... 29
6.7 Escrow Agreement................................................ 29
6.8 Certain Tax Matters............................................. 29
6.9 Registration Rights Agreement................................... 30
6.10 Investment Letter............................................... 30
6.11 Covenant With Respect to COBRA Obligations...................... 30
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER.................. 31
----------------------------------------------------
7.1 Representations True at Closing.................................. 31
7.2 Covenants of the Stockholders and the Company.................... 31
7.3 No Injunction Etc................................................ 31
7.4 Opinion of Counsel............................................... 31
7.5 Consents and Waivers............................................. 31
7.6 Regulatory Approvals............................................. 32
7.7 Absence of Adverse Changes....................................... 32
7.8 Employment Agreement............................................. 32
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE STOCKHOLDERS........... 32
-----------------------------------------------------------
8.1 Representations True at Closing.................................. 32
8.2 Covenants of the Purchaser....................................... 32
8.3 Approvals........................................................ 32
9. CLOSING............................................................... 33
-------
9.1 Time and Place of Closing........................................ 33
9.2 Transactions at Closing.......................................... 33
ii
<PAGE>
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION........ 34
--------------------------------------------------------------
10.1 Survival of Representations and Warranties of the Stockholders
and the Company; Indemnification................................. 34
10.2 Survival of Representations and Warranties of the Purchaser;
Indemnification.................................................. 36
10.3 Indemnification Procedure........................................ 36
10.4 Limits on Indemnification Obligation............................. 37
11. TERMINATION............................................................ 38
-----------
11.1 Method of Termination............................................ 38
12. GENERAL PROVISIONS..................................................... 39
------------------
12.1 Notices.......................................................... 39
12.2 Brokers.......................................................... 40
12.3 Further Assurances............................................... 40
12.4 Waiver........................................................... 40
12.5 Expenses......................................................... 40
12.6 Binding Effect................................................... 41
12.7 Headings......................................................... 41
12.8 Entire Agreement................................................. 41
12.9 Governing Law.................................................... 41
12.10 Counterparts..................................................... 41
12.11 Number and Gender................................................ 41
12.12 Exhibits Incorporated............................................ 41
12.13 Confidentiality; Public Announcements............................ 41
LIST OF EXHIBITS............................................................ 45
iii
<PAGE>
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT made this 18th day of December, 1997, by and
among Equifax Payment Services, Inc., a Delaware corporation ("Purchaser"),
EQUIFAX INC., a Georgia corporation ("Equifax"), GOLDLEAF TECHNOLOGIES, INC., a
Georgia corporation (the "Company"), DAVID L. PETERSON ("Peterson"), B.G.
WETHERINGTON FARMS, L.P., a Georgia limited partnership ("Wetherington Farms"),
and BOBBY G. WETHERINGTON ("B. Wetherington") (Peterson and Wetherington Farms
are collectively referred to herein as the "Stockholders").
W I T N E S E T H:
- - - - - - - - -
WHEREAS, the Stockholders own all of the issued and outstanding shares of
capital stock of the Company; and
WHEREAS, B. Wetherington, as general partner of Wetherington Farms and a
former stockholder and current executive officer and board member of the
Company, and otherwise, will directly and indirectly benefit from the sale of
the shares of capital stock of the Company by Wetherington Farms; and
WHEREAS, the parties hereto desire to enter into this Stock Exchange Agreement
pursuant to which all of the capital stock of the Company will be exchanged for
a certain number of shares of the common stock of Equifax Inc., the parent of
the Purchaser (such transaction hereinafter referred to as the "Exchange"), upon
the terms and subject to the conditions hereinafter set forth; and
WHEREAS, the parties hereto wish to effectuate the Exchange as a nontaxable
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended;
NOW, THEREFORE, in consideration of the premises and the mutual promises,
representations, warranties and covenants hereinafter set forth, the sufficiency
of which is hereby acknowledged by all parties (including, without limitation,
B. Wetherington), the parties hereto agree as follows:
1. DEFINITIONS.
-----------
As used herein, the following terms shall have the following meanings
unless the context otherwise requires:
"Action" shall have the meaning set forth in Section 10.3.1 hereto.
"Agreement" shall mean this Stock Exchange Agreement.
<PAGE>
"Average Price" shall mean the average closing price of Equifax Common
Stock as listed on the NYSE for the ten trading days preceding the Closing Date.
"B. Wetherington" shall mean Bobby G. Wetherington.
"Basket" shall have the meaning set forth in Section 10.4.2.
"Benefit Plans" shall have the meaning set forth in Section 3.16.1 hereto.
"Canned Software" shall mean the commercial computer software shown in
Exhibit 1(a), which is resold by the Company to the Company's customers without
- ------------
modification or integration into the Proprietary Software (except for
installation on a customer's hardware) and which is licensed by the owner or
licensor directly to the end user.
"Closing" shall mean the consummation of the transactions provided for in
this Agreement.
"Closing Date" shall mean the date on which the Closing occurs pursuant to
Section 9.1 hereof.
"Closing Date Balance Sheet" shall have the meaning set forth in Section
2.7.1 hereof.
"Company Common Stock" shall have the meaning set forth in Section 3.3
hereof.
"Company" shall mean Goldleaf Technologies, Inc., a Georgia corporation,
and any subsidiaries thereof.
"Complaining Person" shall have the meaning set forth in Section 3.13.6
hereto.
"Consideration Amount" shall mean Eight Million Six Hundred Thousand
Dollars ($8,600,000).
"Customer Agreements" shall mean all verbal and written contracts and
agreements with present customers of the Company.
"Developers" shall have the meaning set forth in Section 3.13.2 hereto.
2
<PAGE>
"Developer Agreements" shall have the meaning set forth in Section 3.13.2
hereto.
"Equifax" shall mean Equifax Inc., a Georgia corporation and the parent of
the Purchaser.
"Equifax Common Stock" shall mean unregistered shares of the common stock
of Equifax.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" shall mean The Bank of New York.
"Escrow Agreement" shall have the meaning set forth in Section 6.7 hereto.
"Escrowed Amount" shall have the meaning set forth in Section 2.2.2 hereto.
"Exchange" shall have the meaning set forth in the recitals hereto.
"Financial Statements" shall have the meaning set forth in Section 3.5
hereto.
"Former Stockholders" shall have the meaning set forth in Section 2.8
hereto.
"Indemnified Party" shall have the meaning set forth in Section 10.3.1
hereto.
"Indemnifying Party" shall have the meaning set forth in Section 10.3.1
hereto.
"Indemnifying Stockholders" shall mean, severally but not jointly, (i)
Peterson, on the one hand, and (ii) B. Wetherington and Wetherington Farms
(jointly and severally), on the other hand (notwithstanding the fact that B.
Wetherington does not directly own any shares of the capital stock of the
Company).
"Intellectual Property" of a Person shall mean all copyrights, patents,
trademarks, tradenames, service marks, moral rights and rights therein owned by
or licensed to such Person (as well as any applications, registration or
certificates for any of the foregoing) and all software (other than the
3
<PAGE>
Software), technology, know how, trade secrets, methodology, formulations,
inventions, discoveries, proprietary processes, schematic drawings, and all
intellectual property rights incorporated in the foregoing; provided, however,
that "Intellectual Property" shall not include the Software.
"Internal Revenue Code" or "Code" shall mean the Internal Revenue Code of
1986, as amended.
"Licensed Software" shall mean the commercial computer software
applications shown in Exhibit 1(b) as licensed to the Company (but not directly
------------
to the end user) for use in the development of the Proprietary Software or
integration into the Proprietary Software.
"Licensors" shall have the meaning set forth in Section 3.13.2 hereto.
"Net Assets" shall mean total assets minus total liabilities.
"NYSE" shall mean the New York Stock Exchange.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"Person" shall mean an individual or a corporation, partnership, limited
liability company, trust, estate, unincorporated organization,
association or other entity.
"Proprietary Software" shall mean the software shown in Exhibit 1(c), which
------------
includes all computer software applications, programs and/or solutions that have
been developed by or for the Company and the Licensed Software, and interfaces
developed by the Company to the Licensed Software, together with all user
documentation in the Company's possession or which has been conveyed to the
customers of Goldleaf and all files created by the use of the Proprietary
Software.
"Purchaser" shall mean Equifax Payment Services, Inc., a Delaware
corporation.
"Settlement Date" shall have the meaning set forth in Section 2.7.1 hereof.
"Software" shall mean the Proprietary Software and the Canned Software.
"Stock Price" shall mean $31.91.
4
<PAGE>
"Stockholders" shall mean, collectively, Peterson and Wetherington Farms,
L.P.
"Wetherington Farms" shall mean B.G. Wetherington Farms, L.P., a Georgia
limited partnership.
2. COVENANTS AND UNDERTAKINGS.
--------------------------
2.1 Transfer of Company Stock. Subject to the terms and conditions
-------------------------
hereinafter set forth, the Stockholders shall, at the Closing, sell, assign,
transfer, convey and deliver to the Purchaser, free and clear of all liens,
claims, charges, security interests and other encumbrances of any nature
whatsoever, all of the issued and outstanding shares of capital stock of the
Company (collectively, the "Purchased Stock").
2.2 Consideration for Transfer.
--------------------------
2.2.1 Subject to Sections 2.2.2 and 2.7 hereof, in exchange for the
Purchased Stock, Equifax will issue and cause to be delivered to the
Stockholders Two Hundred Sixty Nine Thousand Five Hundred Eight (269,508) shares
of Equifax Common Stock; provided, however, that if the Average Price is less
-------- -------
than $28.72 or more than $35.10, the number of shares of Equifax Common Stock to
be delivered to the Stockholders shall be determined by dividing the
Consideration Amount by the Average Price. No fractional shares of Equifax
Common Stock shall be issued. The Equifax Common Stock shares to be issued
hereunder shall be divided among the Stockholders according to each
Stockholder's relative equity interest in the Company. Exhibit 2.2.1, attached
-------------
hereto and incorporated herein, lists the number of Equifax Common Stock shares
to be issued to each Stockholder.
2.2.2 The Stockholders shall, concurrently with their receipt thereof,
deliver an amount of the Equifax Common Stock shares received pursuant to this
Agreement having an aggregate value of Four Hundred Eighty Thousand Dollars
($480,000) (the "Escrowed Amount") to the Escrow Agent to be held, applied and
disbursed in accordance with Section 6.7 hereof and the Escrow Agreement. The
number of shares of Equifax Common Stock to be delivered to the Escrow Agent
pursuant to this Section 2.2.2 shall be determined by dividing the Escrowed
Amount by the Stock Price.
2.3 Conduct of the Business of the Company Prior to the Closing Date.
----------------------------------------------------------------
Except with the consent in writing of Purchaser, and except as may be required
to effect the transactions contemplated by this Agreement, and except as set
forth on Exhibit 2.3, the Company shall, and each of the Stockholders shall
-----------
cause the Company to, between the date of this Agreement and the Closing,
conduct and operate its business in the regular and ordinary course consistent
with past business practices. Without limiting the generality of the foregoing,
such parties shall, except as otherwise provided in this Agreement:
5
<PAGE>
2.3.1 use their commercially reasonable best efforts to preserve intact the
organization and goodwill of the Company and preserve the goodwill of customers,
vendors and others having business relations with the Company, which efforts
shall include, but not be limited to, the continuation of the Company's usual
and customary levels and standards of service and its usual and customary
billing and collection procedures and the payment of accounts payable;
2.3.2 maintain the properties of the Company in the same working order and
condition as such properties are in on the date of this Agreement, reasonable
wear and tear excepted and not make any capital expenditures in the aggregate in
excess of $25,000;
2.3.3 not sell, lease, mortgage, pledge or otherwise dispose of any of the
Company's assets or properties except for transactions in the ordinary and
regular course of business;
2.3.4 not make or permit any change in the Articles of Incorporation or
Bylaws of the Company, or in its authorized, issued or outstanding securities;
2.3.5 not sell or issue any shares of the Company's capital stock or any
class or grant any stock options, warrants, conversion or other rights to
acquire or purchase any security of the Company, sell or issue any security
convertible into such securities, or grant or enter into, any agreements,
commitments, arrangements or understandings of any kind, contingent or
otherwise, to sell or issue any such securities, or purchase, redeem, retire or
otherwise acquire any such securities, grant any bonuses (other than bonuses
heretofore agreed to by the parties and disclosed in this Agreement and the
Exhibits hereto), or agree to do any of the foregoing and the Company shall not
declare, set aside or pay any dividend in respect of its securities;
2.3.6 not make any changes in the Company's accounting methods;
2.3.7 not take any action or permit any action to be taken that would
materially and adversely affect any of the assets or the business of the Company
as a going concern, or that would impair the ability of the Stockholders or the
Company to consummate the transactions contemplated by this Agreement;
2.3.8 not increase or otherwise change the rate or nature of the
compensation (including but not limited to wages, salaries, benefits, bonuses
and employer contributions to 401(k) plans) which is paid or payable to any
employee, officer, director or consultants or independent contractors of the
Company except in the ordinary course of business in accordance with past
practices or pursuant to existing compensation and benefit plans, practices and
arrangements which have been disclosed in writing to Purchaser, and not enter
into, renew or allow the renewal of, any material employment or consulting
agreement or other contract or arrangement with respect to the performance of
personal services;
6
<PAGE>
2.3.9 promptly deliver to Purchaser all regularly prepared unaudited
financial statements of the Company, in the format historically utilized
internally, as soon as available;
2.3.10 not permit the Company to enter into any material contract,
commitment, arrangement or transaction of the type described in Section 3.12
hereof nor to modify, amend or waive any material provision of any contract,
instrument or agreement described on Exhibit 3.12 hereto except in the ordinary
------------
course consistent with past practice; and
2.3.11 promptly advise Purchaser, in writing, of any matters arising or
discovered after the date of this Agreement which, if existing or known at the
date hereof, would be required to be set forth or described in this Agreement or
the Exhibits hereto.
2.4 Consents and Approvals. The Company and each Stockholder agrees to
----------------------
apply for and obtain the waiver, consent and approval of all persons or entities
whose waiver, consent or approval is required in order to consummate the
transactions contemplated by this Agreement, or is required by any agreement,
lease, instrument, arrangement, judgment, decree, order or license to which any
Stockholder or the Company is a party or subject on the Closing Date (including,
without limitation, the consent of any customer, licensor or supplier of the
Company, if required), and which would prohibit, or require the waiver, consent
or approval of any Person to such transaction or under which, without such
waiver, consent or approval, such transaction would constitute an occurrence of
default under the provisions thereof, result in the acceleration of any
obligation thereunder, or give rise to a right of any party thereto to terminate
its obligations thereunder; provided, that neither the Company nor any
--------
Stockholder shall make any agreements or understandings affecting the Company as
a condition for obtaining any such waivers, consents or approvals, except with
the prior written consent of Purchaser. All obtained written waivers, consents
and approvals shall be produced at Closing in form and content reasonably
satisfactory to Purchaser.
2.5 Examination of Records. During the period prior to the Closing, the
----------------------
Company and each Stockholder shall allow Purchaser, its counsel and other
representatives full access during normal business hours to all the books,
records, files, documents, assets, properties, contracts and agreements of the
Company and shall furnish Purchaser, its officers and representatives with all
information concerning the affairs of the Company which may be reasonably
requested. Purchaser agrees that it will use its best efforts to prevent their
review of the foregoing materials from causing any disruption of the business of
the Company.
2.6 Standstill. During the period commencing on the date of this Agreement
----------
and terminating at the Closing or the termination of this Agreement pursuant to
Section 11.1 hereof, neither the Company nor any Stockholder nor any of their
affiliates shall, directly or indirectly, solicit, encourage or initiate any
discussions with, or negotiate or otherwise deal with, or provide information
to, any person or entity other than Purchaser concerning, or enter into any
agreement in respect of, (a) any merger, sale of substantially all of the assets
7
<PAGE>
or business or any similar transaction involving or respecting the Company, or
(b) any sale of any of the outstanding capital stock of the Company; provided,
--------
however, that upon prior notice to the Purchaser, the Stockholders may make
- -------
transfers for estate planning purposes and provided further that the recipient
of such shares shall execute this agreement as a stockholder.
2.7 Post-Closing Purchase Price Adjustment.
--------------------------------------
2.7.1 Following the Closing, Purchaser shall prepare a balance sheet of the
Company, dated as of the Closing Date (the "Closing Date Balance Sheet"), with
supporting schedules thereto, in accordance with generally accepted accounting
principles and in the format of and consistent with the unaudited balance sheet
dated August 31, 1997 described in Section 3.5.1; provided, however, that the
Closing Date Balance Sheet shall include all adjusting journal entries necessary
to make it consistent with the Audited Financial Statements. Purchaser shall
cause the Closing Date Balance Sheet to be delivered to the Stockholders on or
prior to the date ninety (90) days subsequent to the Closing Date (the
"Settlement Date").
2.7.2 On the tenth day following the Settlement Date, the Stockholders shall
pay to the Purchaser, as an adjustment to the purchase price payable pursuant to
Section 2.2.1 hereof, unless the Stockholders wish to dispute any matter arising
out of the Closing Date Balance Sheet in the manner set forth below, Equifax
Common Stock worth, in the aggregate, the amount by which Net Assets on the
Closing Date Balance Sheet is less than $201,000. The parties acknowledge and
agree that the obligation of Stockholders under this Section 2.7.2 shall not be
limited by the Escrowed Amount and Purchaser shall have no obligation to apply
any of the Escrowed Amount to satisfy such obligation of Stockholders.
2.7.3 In the event that the Stockholders wish to dispute any matter arising
out of the Closing Date Balance Sheet, the Stockholders shall within ten (10)
days of receipt of the Closing Date Balance Sheet give written notice to
Purchaser (in accordance with Section 12.1 hereof) of such dispute and the
reason(s) therefor. The Stockholders and Purchaser shall attempt to resolve
such dispute within thirty (30) business days after receipt by Purchaser of such
notice, and in the event Purchaser and the Stockholders fail to resolve such
dispute within said period, the parties agree that the independent certified
public accounting firm of Arthur Andersen LLP (or any other independent
certified public accounting firm that shall be mutually agreed upon by such
parties) shall be employed to resolve such dispute as soon as reasonably
practicable, that any determination of such accounting firm as to the Closing
Date Balance Sheet shall be binding upon the parties hereto. In the event
Arthur Andersen LLP or any other accounting firm is employed, the costs of any
such independent accounting firm shall be divided equally among the parties
hereto. In the event an accounting firm is employed to resolve the dispute, all
amounts due hereunder shall be paid, in the manner set forth above, on or prior
to the fifth business day following the final determination of such accounting
firm.
8
<PAGE>
2.8 Release by Stockholders and Former Stockholders. Each Stockholder and
-----------------------------------------------
former stockholder of the Company ("Former Stockholder") shall deliver at the
Closing to Purchaser an executed release, in the form and substance of Exhibit
-------
2.8(a), in which each Stockholder and Former Stockholder, except to the extent
- ------
provided in Exhibit 2.8(b), completely and irrevocably releases the Company from
--------------
any and all duties and obligations owed by the Company to such Stockholder as of
the Closing Date, and for any claims or possible claims, whether known or
unknown, foreseen or unforeseen, and the consequences thereof, that such
Stockholder has, or may have, or may claim to have, against the Company or any
of the Assets. The Former Stockholders are listed on Exhibit 2.8(c) hereto.
--------------
2.9 Stockholder Certifications. Each Stockholder, by executing this
--------------------------
Agreement, hereby certifies, represents and warrants and covenants to Purchaser,
with respect to the transactions contemplated by this Agreement, that:
(a) such Stockholder is not relying upon any representation or warranty
by Equifax, Purchaser, its affiliates, representatives and agents, or
anyone else, in connection with his decision to acquire Equifax Common
Stock hereunder, excepting only such representations and warranties
specifically set forth in this Agreement;
(b) such Stockholder has such knowledge and experience in financial and
business matters that he is capable of evaluating the risks and merits of
the transactions contemplated by this Agreement, including, without
limitation, an investment in the Equifax Common Stock deliverable to him;
(c) such Stockholder has received, reviewed and had adequate
opportunity to inquire respecting the Equifax annual report, proxy
statement and other reports delivered hereunder to him; and
(d) such Stockholder is an "accredited investor," as such term is
defined in the 1933 Act.
2.10 Registration Rights Agreement. At the Closing, Equifax and the
-----------------------------
Stockholders shall enter into a Registration Rights Agreement in the form of
Exhibit 2.10 hereto.
- ------------
2.11 Investment Letter. At the Closing, each Stockholder shall execute and
-----------------
deliver to Equifax an Investment Letter in the form of Exhibit 2.11 hereto.
------------
9
<PAGE>
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE STOCKHOLDERS.
------------------------------------------------------------------
The Company and the Stockholders, jointly and severally, represent and
warrant to the Purchaser as follows:
3.1 Organization and Standing.
-------------------------
3.1.1 The Company is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Georgia and has the full power and
authority (corporate and otherwise) to carry on its business in the places and
as it is now being conducted and to own and lease the properties and assets
which it now owns or leases.
3.1.2 The Company is duly qualified and/or licensed to transact business as a
foreign corporation in the jurisdictions listed on Exhibit 3.1 hereto and is in
-----------
good standing in each such jurisdiction. The character of the property owned or
leased by the Company and the nature of the business conducted by the Company do
not require it to be qualified or licensed in any other jurisdiction, except for
jurisdictions in which the failure to be so qualified or licensed will not have,
individually or in the aggregate, a materially adverse effect on the business,
assets, operations or financial condition of the Company.
3.2 Authority and Status. The execution, delivery and performance by the
--------------------
Company of this Agreement and each and every agreement, document and instrument
provided herein have been duly authorized and approved by all necessary
corporate action on the part of the Company. This Agreement and each agreement,
document and instrument provided for herein constitute or will, when executed
and delivered, constitute the legal, valid and binding obligations of the
Company and the Stockholders enforceable against each of them in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, applicable equitable principles, or
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally. Attached hereto as Exhibits 3.2(a) and 3.2(b), respectively,
--------------- ------
are true, correct and complete copies of the Articles of Incorporation, as
amended, and Bylaws, as amended, of the Company. The minute books of the
Company, true, correct and complete copies of which have previously been
delivered to Purchaser, contain accurate and complete minutes of all meetings
of, and accurate and complete consents to all actions taken without meetings by,
the Board of Directors (and any committee thereof) and the stockholders of the
Company since the formation of the Company.
3.3 Capitalization. The entire authorized capital stock of the Company
--------------
consists of 100,000 shares of common stock, no par value ("Company Common
Stock"), of which 1,000 shares are issued and outstanding. All such shares of
Company
10
<PAGE>
Common Stock are owned of record by the Stockholders in the manner set
forth on Exhibit 3.3(a) hereto. All of such outstanding shares of the Company
--------------
have been duly authorized and validly issued, and are fully paid and non-
assessable. All of such issued and outstanding shares of Company Common Stock
were offered and sold in compliance with all applicable state and Federal
securities laws, rules and regulations. There are no outstanding options,
warrants, calls, commitments or plans by the Company to issue any additional
shares of its capital stock, or to pay dividends on such shares, or to purchase,
redeem or retire any outstanding shares of its capital stock, nor are there
outstanding any securities or obligations that are convertible into or
exchangeable for any shares of capital stock of the Company. There are no stock
appreciation rights, phantom stock or similar rights in existence with respect
to the Company. There has been no change in the equity interest of the capital
stock of the Company in contemplation of this Exchange.
3.4 Equity Investments. The Company does not own, of record or beneficially,
------------------
either directly or indirectly, any capital stock or other equity or ownership or
proprietary interest in any Person.
3.5 Liabilities and Obligations of the Company.
------------------------------------------
3.5.1 Attached hereto as Exhibit 3.5.1 are true, correct and complete copies
-------------
of the Company's audited balance sheet and the related statements of earnings
and retained earnings and cash flows for the Company's fiscal years ended
December 31, 1994, 1995 and 1996 (collectively, the "Audited Financial
Statements"), and its unaudited balance sheet as of August 31, 1997 and the
related statements of earnings and retained earnings for the eight month period
then ended (collectively, the "Interim Financial Statements", and together with
the Audited Financial Statements, the "Financial Statements"). The Financial
Statements are complete, fairly present the financial condition and results of
operations of the Company as of the dates and for the periods thereof, and,
except as set forth in Exhibit 3.5.1, have been prepared in accordance with
-------------
generally accepted accounting principles consistently applied.
3.5.2 The Company has no liability or obligation (whether accrued, absolute,
contingent or otherwise), except for (i) the liabilities and obligations of the
Company that are disclosed in the Interim Financial Statements on Exhibit 3.5.1
-------------
hereto, to the extent and in the amounts so disclosed, (ii) liabilities and
obligations incurred or accrued in the ordinary course of business since June
30, 1997 and which do not, either individually or in the aggregate, have a
materially adverse effect on the business, assets, operations, prospects or
financial condition of the Company, and (iii) liabilities listed on Exhibit
-------
3.5.2.
- -----
3.6 Taxes. Except as described on Exhibit 3.6, the Company has, as of the
----- -----------
date hereof, and will have prior to the Closing Date, timely and accurately
filed all federal, state, foreign and local tax returns and reports required to
be filed by it prior to such date, and has timely and accurately paid or made
adequate provision for, or prior to the Closing Date will timely pay or make
adequate provision for, all taxes that are due and payable for all periods
through and including the Closing Date, including, without limitation, all
income, property, sales, intangible, use, franchise, added value, social
security, withholding or other payroll related taxes and all interest and
penalties thereon, whether disputed or not. All deposits required to be made by
the Company with respect to employees' withholding taxes have been
11
<PAGE>
duly made. There are, and on the Closing Date will be, no unpaid taxes,
additions to tax, penalties, or interest payable by the Company or by any other
Person that are or could become a lien on any asset, or otherwise adversely
affect the business, properties or financial condition, of the Company. The
balance sheet contained in the Financial Statements fully and properly reflects,
as of the date thereof, the liabilities of the Company for all accrued taxes,
additions to tax, penalties and interest. Except as described on Exhibit 3.6,
-----------
the Company is not, nor will it become, subject to any additional taxes,
interest, penalties or other similar charges as a result of its filing or
failure to file timely or accurately, as required by applicable law, any such
tax return or to pay timely any amount required to be paid with respect thereto,
including, without limitation, any such taxes, interest, penalties or charges
resulting from the obtaining of an extension of time to file any return or to
pay any tax. No assessments or notices of deficiency or other communications
have been received by the Company with respect to any such return which has not
been paid, discharged, or fully reserved in the Interim Financial Statements,
and no amendments or applications for refund have been filed or are planned with
respect to any such return. The federal income tax liability of the Company for
all of its taxable years ending prior to and including the taxable year ended
December 31, 1993 have been closed as to deficiencies and refund of taxes by
applicable statutes of limitations. There are no agreements between the Company
and any taxing authority, including, without limitation, the Internal Revenue
Service, waiving or extending any statute of limitations with respect to any tax
return, and it has not filed any consent under Section 341(f) of the Internal
Revenue Code.
3.7 Ownership of Assets and Leases, Etc.
------------------------------------
3.7.1 Asset and Lease List. Exhibit 3.7 attached hereto contains a true,
-------------------- -----------
correct and complete list and brief description of all material items of
personal property owned or leased by the Company and of all real property used
or leased by the Company. The Company does not own and has never owned any real
property. Exhibit 3.7 identifies with particularity the real properties and
-----------
material personal properties leased by the Company and (a) all leases or
agreements under which the Company is lessor of such property and (b) all leases
or agreements under which the Company is lessee of or holds or operates any such
property, real or personal. Such assets, leases and agreements are sufficient
to enable the Company to conduct its business in the ordinary course. Exhibit
-------
3.7 also contains a list of all bank accounts, safe deposit boxes (and the
- ---
contents thereof) and powers of attorney of the Company and of all Persons
authorized to act with respect thereto. The Company has good and marketable
title to all of its properties and assets, including those listed and described
in Exhibit 3.7, in each case, free and clear of all liens, claims, charges,
-----------
options, forfeitures, rights of seizure, rights of tenants or other
encumbrances, except as specifically disclosed or reserved against in the
Financial Statements or on Exhibit 3.7 (to the extent and in the amounts so
-----------
disclosed or reserved against) and except and for liens arising from current
taxes not yet past due. Except pursuant to this Agreement, neither the Company
nor any Stockholder is a party to any contract or obligation whereby there has
been granted to any Person an absolute or contingent right to purchase, obtain
or acquire any rights in any of the assets, properties or operations of the
Company.
12
<PAGE>
3.7.2 Enforceability of Leases. Each of the leases and agreements described
------------------------
in Exhibit 3.7 is in full force and effect and constitutes a legal, valid and
-----------
binding obligation of the respective parties thereto, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, applicable equitable principles or
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally. There is not under any of such leases or agreements existing
any default of the Company or, to the knowledge of the Company and the
Stockholders, of any of the other parties thereto (or event or condition which,
with notice or lapse of time, or both, would constitute a default). No consent
of any other party to any of such leases or agreements to the consummation of
the transactions contemplated by this Agreement is required for any of such
leases or agreements to remain in full force and effect following the Closing.
3.7.3 Operating Condition. All machinery and equipment owned or leased by
-------------------
the Company and used in the conduct of the Company's business are in good
operating condition and state of repair, subject only to ordinary wear and tear
which is not such as to affect adversely the operation of the business as
presently conducted.
3.7.4 No Notice of Violation. Neither the Company nor any Stockholder has
----------------------
received any notice of violation, and the Company and the Stockholders do not
otherwise have knowledge of violation, of any applicable zoning regulation,
ordinance or other law, regulation or requirement relating to any of the
Company's operations and properties, whether owned or leased, and there is no
such violation or grounds therefor which could adversely affect the business,
goodwill or financial condition of the Company or the operation of the business
as presently conducted.
3.7.5 Accounts Receivable.
-------------------
(i) All of the accounts receivable of the Company shown on the
Financial Statements or thereafter acquired (including, but not limited to, the
accounts receivable on the books of the Company as of the Closing Date) reflect
actual transactions and the granting of credit to customers in a manner
consistent with the past practices of the Company, arose in the ordinary course
of business, and are not subject to offset or deduction. All of the accounts
receivable of the Company have been collected, or will be collected (without
recourse to any judicial proceedings), within ninety (90) days of the date
incurred at the aggregate gross recorded amounts thereof. There are no facts or
circumstances known to the Company or the Stockholders which would prevent the
work-in-process of the Company from maturing in due course into collectible
accounts receivable.
(ii) The Company has complete and correct copies of all instruments,
documents and agreements evidencing all of its accounts receivable and of all
instruments, documents or agreements creating security therefor. Exhibit
-------
3.7.5(ii) contains a complete and accurate list of all such instruments,
- ---------
documents and agreements creating security for such accounts receivable.
13
<PAGE>
3.8 Agreement Related to Other Instruments. Except as set forth on Exhibit
-------------------------------------- -------
3.8, the execution and delivery of this Agreement by the Company and the
- ---
Stockholders do not, and the consummation of the transactions contemplated
hereby will not, violate any provision of the Articles of Incorporation, as
amended, or Bylaws, as amended, of the Company or violate or constitute an
occurrence of default under any provision of, or conflict with, or result in
acceleration of any obligation under, or give rise to a right by any party to
terminate its obligations under, any mortgage, deed of trust, conveyance to
secure debt, note, loan, lien, lease, agreement or instrument, or any order,
judgment, decree or other arrangement to which the Company is a party or by
which it is bound or its assets are affected.
3.9 Absence of Changes. Since December 31, 1996, the Company has not,
------------------
except as specifically disclosed on Exhibit 3.9 attached hereto:
-----------
3.9.1 transferred, assigned or conveyed any of its assets or business or
entered into any transaction or incurred any liability or obligation, other than
in the ordinary course of its business and consistent with past practice;
3.9.2 suffered any adverse change in its business, operations, or financial
condition or become aware of any event which may result in any such adverse
change, the effect of which has had or could have an adverse effect on the
assets, business or financial condition of the Company;
3.9.3 written off as uncollectible any notes or accounts receivable or any
portion thereof, other than in the ordinary course of business;
3.9.4 suffered any destruction, damage or loss to property (casualty or
other), whether or not covered by insurance;
3.9.5 suffered, permitted or incurred the imposition of any lien, charge,
encumbrance (which as used herein includes, without limitation, any mortgage,
deed of trust, conveyance to secure debt or security interest) or claim upon any
of its assets, except for any current year lien with respect to personal taxes
not yet past due;
3.9.6 committed, suffered, permitted or incurred any default in any
material liability or obligation;
3.9.7 made or agreed to any material adverse change in the terms of any
contract or instrument to which it is a party;
3.9.8 waived, canceled, sold or otherwise disposed of, for less than the
face amount thereof, any material claim or right it has against others;
3.9.9 (a) disposed of or permitted to lapse, or otherwise failed to
preserve then existing exclusive rights, if any, of the Company to use any
(i) patent,
14
<PAGE>
trademark, trademark registration, logo, assumed name, trade name,
copyright or copyright registration, or (ii) any patent, trademark, trade name
or copyright application, (b) disposed of or permitted to lapse any license,
permit or other form of authorization, or any trade name, or (c) disposed of or
disclosed to any Person any trade secret, formula or process;
3.9.10 made any change in any method of accounting or accounting practice;
3.9.11 declared, promised or made any distribution or other payment to any
Stockholder (other than compensation payable in the ordinary course to employees
of the Company consistent with past practice), or issued any additional shares
or rights, options or calls with respect to its shares, or redeemed, purchased
or otherwise acquired any of its shares, or made any change whatsoever in its
capital structure;
3.9.12 increased or changed, or agreed to increase or change, its obligation
for any payment for, any contribution or other amount to, or with respect to,
any employee benefit plan, or paid any bonus to, or granted any increase in the
compensation of, its directors, officers, agents or employees, or made any
increase in the pension, retirement or other benefits of its directors,
officers, agents or other employees;
3.9.13 paid, loaned or advanced any amount to or in respect of, or sold,
transferred or leased any properties or assets (whether real, personal, mixed,
tangible or intangible) to, or entered into any agreement, arrangement or
transaction with, any Stockholder, any of the officers or directors of the
Company, or any affiliate or associate of any of them, or any business or entity
in which any Stockholder or the Company or any affiliate or associate of either
of them has any direct or indirect interest, except for compensation to the
officers and employees of the Company or any Stockholder at rates not exceeding
the rates of compensation in effect as of August 31, 1997;
3.9.14 committed, suffered, permitted or incurred any transaction or event
which would increase its tax liability for any prior taxable year;
3.9.15 entered into any lease of real property or material lease of personal
property;
3.9.16 incurred any other liability or obligation or entered into any
transaction other than in the ordinary course of business;
3.9.17 terminated or amended or suffered the termination or amendment of, or
failed to perform in all material respects all of its obligations or suffered or
permitted any default to exist under any contract, lease, agreement or license;
15
<PAGE>
3.9.18 received any notices that any supplier or customer has taken or
contemplates any steps which could materially and adversely disrupt the business
relationship of the Company with said supplier or customer; or
3.9.19 agreed, whether in writing or otherwise, to take any action described
in this Section 3.9.
3.10 Litigation and Claims. Except as otherwise set forth in Exhibit 3.10
--------------------- ------------
hereto, there is no suit, action, proceeding, claim or investigation pending or
threatened against or affecting the Company. There exists no basis or grounds
for any such suit, action, proceeding, claim or investigation. None of the
items described in Exhibit 3.10, singly or in the aggregate, if pursued and/or
------------
resulting in a judgment or decision against the Company, would have a material
adverse effect on the assets, business, goodwill or financial condition of the
Company or the ability of any party to consummate the transactions contemplated
hereby.
3.11 Licenses and Permits; Compliance With Law.
-----------------------------------------
3.11.1 The Company holds all licenses, certificates, permits, franchises and
rights from all appropriate foreign, domestic, federal, state, county, municipal
or other public authorities necessary for the conduct of its business. Except
as set forth in Exhibit 3.11, the Company is presently conducting its business
------------
so as to comply in all respects with all applicable foreign, domestic, federal,
state, and local statutes, ordinances, rules, regulations and orders of any
governmental authority and has not undertaken, directly or indirectly, any
action that would violate any provision of the Foreign Corrupt Practices Act of
1977, as amended, or any regulations established or promulgated thereunder.
Except as noted in Exhibit 3.11, the Company is not presently charged with or
------------
under governmental investigation with respect to, any actual or alleged
violation of any statute, ordinance, rule or regulation, or presently the
subject of any pending or threatened adverse proceeding by any regulatory
authority having jurisdiction over its business, properties or operations and
the Stockholders have no knowledge of any grounds or basis for any of the
foregoing. Neither the execution nor delivery of this Agreement, nor the
consummation of the transactions contemplated hereby will result in the
termination of any license, certificate, permit, franchise or right held by the
Company and all such licenses, certificates, permits, franchises and rights will
remain vested in and inure to the benefit of the Company after the consummation
of the transactions contemplated by this Agreement.
3.11.2 Without limiting the generality of the foregoing Section 3.11.1, the
Company has obtained all licenses, certificates, permits, franchises and rights
which are required under federal, foreign, state or local laws relating to
public health and safety, worker health and safety and pollution or protection
of the environment, including laws relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants or hazardous or toxic
substances into ambient air, surface water, groundwater or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
16
<PAGE>
disposal, transport or handling of pollutants, contaminants or hazardous or
toxic substances. The Company is in compliance in all respects with all terms
and conditions of the required licenses, certificates, permits, franchises and
rights and is also in compliance in all respects with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any federal, foreign, state or local law
or any rule, regulation, code, plan, order, decree or judgment relating to
public health and safety, worker health and safety and pollution or protection
of the environment. Neither the Company nor any Stockholder has received notice
or is otherwise aware that certain facts, events or conditions, interfere with
or prevent the Company's continued compliance with, or give rise to any common
law or legal liability under any law or regulation related to, the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release or threatened release into the
environment, of any pollutant, contaminant or hazardous or toxic substance.
3.12 Contracts, Etc. Exhibit 3.12 hereto consists of (a) a true, correct
--------------- ------------
and complete list of all contracts, agreements and other instruments (including
insurance policies) to which the Company is a party; provided, that no contract,
--------
agreement or instrument involving payments or potential payments by the Company
of less than $5,000 per year need be disclosed ("Immaterial Contracts"), and;
(b) a true, correct and complete set of the standard forms used for Customer
Agreements together with a description of any material deviations from such
standard forms, and a description of all special pricing arrangements and rebate
programs between the Company and its customers. The Company has made available
a true and complete copy of each such contract, agreement or instrument, or a
summary of oral agreements to which the Company is a party, including the
Customer Agreements. Except as specifically set forth and in detail described
in Exhibits 3.12, 3.13, 3.16 and 3.19 and except for Immaterial Contracts, the
------------- ---- ---- ----
Company is not a party or subject to, whether oral or written, any of the
following:
3.12.1 any contracts, commitments or agreements, the consummation or
performance of which would, either singly or in the aggregate, have an adverse
impact upon their business, operations or financial condition;
3.12.2 any contract or commitment which requires services to be provided
or performed by the Company or which authorizes others to perform services for,
through or on behalf of the Company;
3.12.3 any contract or commitment involving an obligation which cannot
be performed or terminated within thirty (30) days from the dates as of which
these representations are made;
3.12.4 any lease, rental agreement or other contract or commitment
affecting the ownership or leasing of, title to or use of any interest in real
or personal property;
17
<PAGE>
3.12.5 any note receivable;
3.12.6 any contract or commitment which is outside of the normal,
ordinary and usual requirements of its businesses;
3.12.7 any franchise agreement;
3.12.8 any employment contract or arrangement which is not terminable
by them within fourteen (14) days without payment of any amount for any reason
whatsoever, or for any continuing payment of any type or nature, including,
without limitation, any bonuses;
3.12.9 any plan or other arrangement providing for life insurance,
disability insurance, medical insurance, dental insurance, pensions, stock
rights, distributions, options, deferred compensation, retirement payments,
profit sharing, medical reimbursements or other benefits for officers or other
employees;
3.12.10 any contract, agreement, understanding or arrangement
restricting the Company from carrying on its businesses anywhere in the world;
3.12.11 any instrument or arrangement evidencing or related to
indebtedness for money borrowed or to be borrowed, whether directly or
indirectly, by way of purchase money obligation, guaranty, subordination,
conditional sale, lease-purchase, or otherwise;
3.12.12 any contract with any labor organization;
3.12.13 any policy of life, fire, liability, medical or other form of
insurance;
3.12.14 any order or written approval of any federal, state or local
regulatory agency required to conduct their businesses; or
3.12.15 any contract or agreement, not of the type covered by any of the
other items of this Section 3.12, which is not in the ordinary course of
business or which has a material adverse impact on the business or assets of
the Company.
All of the contracts, agreements, policies of insurance or instruments
described in Exhibits 3.12, 3.13, 3,16 and 3.19 hereto are valid and binding
------------- ---- ---- ----
upon the Company and the other parties thereto, and are in full force and effect
and constitute legal, valid and binding obligations of the respective parties
thereto, enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, applicable equitable principles or similar laws from time to time in
effect affecting the enforcement of creditors' rights generally, and the Company
has not,
18
<PAGE>
and to the best of the Company's and the Stockholders' knowledge, no other party
to any such contract, agreement or instrument has, breached any provision of, or
is in default in any respect (including any event or condition which, with
notice or lapse of time, or both, would constitute a default) under, the terms
thereof; and there are no existing facts or circumstances known to the Company
or any Stockholder which would prevent the work in process of the Company or its
contracts and agreements from maturing in due course into collectible accounts
receivable. No consent of any other party to any of such contracts, agreements
or instruments to the consummation of the transactions contemplated hereby is
required for any of such contracts, agreements or instruments to remain in full
force and effect following the Closing.
3.13 Computer Programs and Software.
------------------------------
3.13.1 The Proprietary Software performs in accordance with the user
documentation included in or provided with the Proprietary Software and is free
of known defects in programming and operation, which, individually or in the
aggregate, would have a material adverse effect on the utility or functionality
of the Proprietary Software to perform in accordance with the specifications set
forth in such user documentation. As of the Closing, the Company will have made
available to Purchaser complete and correct copies of all user and technical
documentation related to the Proprietary Software, a list of which is attached
to Exhibit 3.13 hereto.
------------
3.13.2 No employee of the Company is, or is now expected to be, in
default under any term of any employment contract, agreement or arrangement
relating to the Proprietary Software or any noncompetition arrangement, or any
other contract or any restrictive covenant relating to the Proprietary Software
or its development or exploitation. Except for the Licensed Software, the
Proprietary Software (and all prior versions, modifications, and releases
thereof) was developed solely and exclusively by the employees, consultants and
independent contractors of the Company listed on Exhibit 3.13 (the "Developers")
------------
during the time the Developers were employees, consultants or independent
contractors of the Company, and such Proprietary Software does not include any
inventions of the Developers made prior to the time such Developers became
employees, consultants or independent contractors of the Company nor any
intellectual property of any previous employer of such Developer, except for
commonly used types of commercial software. Except as set forth on Exhibit 3.13,
the Company has provided to Purchaser all employment contracts, independent
contractor agreements, invention assignment agreements, noncompete agreements
and confidentiality agreements between the Company, any affiliate of the
Company, and/or any predecessor in interest of the Company, on the one hand, and
each Developer, on the other hand, and/or any other documents (collectively, the
"Developer Agreements") evidencing that the Developers have assigned and
released any and all of their respective rights to the Proprietary Software
completely and irrevocably. Except as set forth in Exhibit 3.13, the Developer
------------
Agreements (i) constitute all of the agreements between the Company, any
affiliate of the Company, and any predecessor in interest of the Company, on the
one hand, and each and every Developer and any other employee, contractor or
other
19
<PAGE>
person, who may, by virtue of having worked on, conceived or otherwise
contributed to the development of the Proprietary Software or for the Company,
have a claim or interest in the Proprietary Software, (ii) are authentic, (iii)
are supported by good and valuable consideration, (iv) are valid and effective
agreements and (v) validly and effectively assign all of the Developers' rights
and title to all Proprietary Software, inventions and rights created by the
Developers in the scope of performing services for the Company. The Company has
validly and effectively obtained the right and license to use, copy, modify and
distribute the Licensed Software contained in the Proprietary Software from any
and all parties holding rights in such third-party programming and materials
(the "Licensors"). Except as set forth in Exhibit 3,13, all right, title and
------------
interest in and to the Proprietary Software is owned by the Company, free and
clear of all liens, claims, charges or encumbrances of any Developer or
Licensor. Notwithstanding any failure to obtain fully executed Developer
Agreements from any Developer or any disclosure in Exhibit 3.13 hereto that any
------------
Developer or Licenser has not executed a Developer Agreement, the Company's
development, use, licensing, sublicensing or exploitation of the Proprietary
Software does not violate any rights of any Developer or Licensor and neither
the Stockholders nor the Company has received any communication alleging such a
violation. As of the Closing Date: (i) the Proprietary Software operates with
respect to dates occurring after September 9, 1999, with the same level of
functionality as the Proprietary Software currently operates, including, without
limitation, correctly storing, processing and presenting calendar dates falling
on or after September 9, 1999; (ii) the Proprietary Software is free from logic
and other errors attributable to dates falling on or after September 9, 1999 and
is not responsible for any error caused by any date falling on or after
September 9, 1999; and (iii) the Proprietary Software consistently handles date
input using dates before and after September 9, 1999 in a way that clearly and
accurately handles the ambiguity as to century.
3.13.3 All Licensed Software and Canned Software has been licensed
pursuant to valid license agreements and all royalties, license or other fees
due and payable thereunder have been paid or adequate provision therefor has
been made and accrued on the books of the Company. Except as set forth in
Exhibit 3.13, the Company has all necessary and required rights to license, use,
- ------------
sublicense and distribute the Licensed Software and the Canned Software in the
normal and ordinary course of its business and all royalties, license or other
fees due and payable by the Company with respect thereto have been paid or
adequate provision therefor has been made and accrued on the books of the
Company. Except as set forth in Exhibit 3.13, no consent or waiver is required
------------
with respect to the Licensed Software and the Canned Software to effect the
transactions as contemplated by this Agreement and, except as disclosed on
Exhibit 3.13, no Developer or Licensor has any interest in the Licensed Software
- ------------
and the Canned Software, including without limitation, any security interest,
license, royalty rights, contingent interest or otherwise.
3.13.4 The software listed on Exhibit 3.13 is all of the computer
------------
software used, licensed or sublicensed by the Company in the conduct of its
business. Except as set forth in Exhibit 3.13, the Company does not have any
------------
obligation to compensate any person or entity for the development, use, sale or
exploitation of the Software nor has
20
<PAGE>
the Company granted to any other person or entity any license, option or other
rights to develop, use, sell or exploit in any manner the Software, whether
requiring the payment of royalties or not. The Company has not granted,
transferred or assigned any right or interest in the Software to any person or
entity, except pursuant to the license agreements identified as such on Exhibit
-------
3.12 hereto (each such agreement is hereinafter referred to as a "License").
- ----
Exhibit 3.12 sets forth, with respect to each License, the Software licensed
- ------------
thereunder. Except as set forth on Exhibits 3.12 and 3.13, each License
------------- ----
constitutes only an end-user agreement, each of which grants the end-user
thereunder solely the nonexclusive right and license to use the identified
Software and related user documentation for internal purposes only with no right
to sublicense or modify the Software in any manner. Except as set forth on
Exhibits 3.12 and 3.13, there are no contracts, agreements, licenses, or other
- ------------- ----
commitments or arrangements in effect with respect to the marketing,
distribution, licensing or promotion of the Software by any independent sales
person, distributor, licensor, sublicensor or other remarketer or sales
organization.
3.13.5 Except as set forth on Exhibit 3.13, the Company, the
------------
Stockholders and their respective affiliates have (i) kept secret and have not
disclosed the source code for the Proprietary Software to any person or entity,
and (ii) made adequate provision to preserve the proprietary nature of such
source code, other than the disclosure thereof to certain employees and
contractors and consultants of the Company who are subject to the terms of a
binding confidentiality agreement with respect thereto. The Company has taken
measures customary to protect the confidential and proprietary nature of the
Proprietary Software, including the use of confidentiality agreements with all
of its employees and independent contractors having access to the Proprietary
Software source and object code There have been no patents applied for and no
copyrights registered for any part of the Proprietary Software.
3.13.6 Excluding Developers and Licensors (whose rights are addressed
above), no person (a "Complaining Person"), by virtue of the Complaining
Person's independent development of computer software, has or could validly
claim that the Proprietary Software (excluding the Licensed Software) infringes
such Complaining Person's software.
3.13.7 The Company has not modified in any respect the Canned Software
or the Licensed Software.
3.14 Intellectual Property Matters. Exhibit 3.14 contains a true, correct
----------------------------- ------------
and complete list of all Intellectual Property owned, licensed, sublicensed or
used by the Company, or which the Company has the right to distribute or
sublicense, in the conduct of its business. Unless otherwise indicated on
Exhibits 3.12, 3.13, or 3.14, all Company Intellectual Property is owned totally
- ------------- ---- ----
and exclusively by the Company free and clear of any liens, claims, charges or
encumbrances of any type or nature whatsoever. The Company's Intellectual
Property and the Company's use thereof do not infringe upon any Intellectual
Property of any third party. The Company is not in default under, and has not
received any
21
<PAGE>
notice of any claim of infringement or any other claim or proceeding relating to
any of the Company's Intellectual Property. No present or former employee of the
Company and no other Person owns or has any proprietary, financial or other
interest, direct or indirect, in whole or in part, in any of the Company's
Intellectual Property. Neither the Company nor any of the Stockholders are aware
of any infringement of the Company's Intellectual Property by any Person or any
Person's Intellectual Property. Exhibit 3.14 lists all confidentiality or non-
------------
disclosure agreements to which the Company or any of the Company's employees is
a party. The Company has delivered to the Purchaser true and correct copies of
the confidentiality and non-disclosure agreements required to be listed on
Exhibit 3.14.
- ------------
3.15 Labor Matters. Within the last three (3) years, the Company has
-------------
not been the subject of any union activity or labor dispute, nor has there been
any strike of any kind called, or threatened to be called against it, and it has
not violated any applicable federal or state law, rule or regulation relating to
labor or labor practices, including without limitation employment discrimination
laws relating to age, gender, ethnicity or minority status or sexual preference,
and is not a party to any collective bargaining agreement. The Company is not
bound by or subject to any labor agreement, union agreement or collective
bargaining agreement.
3.16 ERISA and Related Matters.
-------------------------
3.16.1 Exhibit 3.16 lists all deferred compensation, pension, profit-
------------
sharing and retirement plans, and all bonus, welfare, severance pay and other
"employee benefit plans" (as defined in Section 3(3) of ERISA), fringe benefit
or stock option plans, programs or arrangements, whether or not written,
participated in or maintained by the Company or any Stockholder in respect of
the Company or with respect to which contributions are made or obligations
assumed by the Company or any Stockholder in respect of the Company (including
health, life insurance and other benefit plans maintained for retirees). Said
plans, including but not limited to all plans or programs that constitute
"employee benefit plans" within the meaning of Section 3(3) of ERISA, are
sometimes collectively referred to in this Section 3.16 as "Benefit Plans."
Copies of all Benefit Plans and related documents, including those setting out
the Company's personnel policies and procedures, and including any insurance
contracts under which benefits are provided, as currently in effect, and
descriptions of any such plan which are not written have been to Purchaser. The
Company has also made available to Purchaser a copy of the Summary Plan
Description, if any, for each Benefit Plan, as well as copies of any other
summaries of descriptions of any such Benefit Plans which have been provided to
employees or other beneficiaries during the previous three (3) calendar years.
3.16.2 Except as set forth on Exhibit 3.16 hereto, the Company has
------------
fulfilled its obligations, to the extent applicable, under the minimum funding
requirements of Section 302 of ERISA and Section 412 of the Code, with respect
to each "employee benefit plan" (as defined in Section 3(3) of ERISA) appearing
in Exhibit 3.16. Each Benefit Plan is in compliance with, and has been
------------
administered in all respects consistent with, the presently
22
<PAGE>
applicable provisions of ERISA, the Code and state law including but not limited
to the satisfaction of all applicable reporting and disclosure requirements
under the Code, ERISA and state law. The Company has made all payments to all
Benefit Plans as required by the terms of each such plan in accordance, if
applicable, with the actuarial and funding assumptions in effect as for the most
recent actuarial valuation of such plans. All required actuarial valuations and
reports relating to said plans have been prepared and a copy of the most recent
actuarial valuation and report for each pension plan, as defined in Section 3(2)
of ERISA, has been provided to Purchaser, if applicable. The Company has filed
or caused to be filed with the Internal Revenue Service annual reports on Form
5500 for each Benefit Plan attributable to them for all years and periods for
which such reports were required and within the time period required by ERISA
and the Code, and copies of such reports for the past five years have been
provided to Purchaser. Except as disclosed on Exhibit 3.16, the Company has
------------
funded or will fund each Benefit Plan attributable to it in accordance with its
terms through Closing including the payment of applicable premiums on any
insurance contract funding a Benefit Plan for coverage provided through Closing.
To the extent that any annual contribution for the current year is not yet
required for any Benefit Plan as of the Effective Time, the Company has made a
pro rata contribution to said plan for the period ended at the Effective Time or
said contribution has been accrued on the books of the Company.
3.16.3 Except as set forth on Exhibit 3.16 hereto, no "prohibited
------------
transaction," as defined in Section 406 of ERISA and Section 4975 of the Code,
has occurred in respect of any such Benefit Plan, and no civil or criminal
action brought pursuant to Part 5 of Title I of ERISA is pending or is
threatened in writing or orally against any fiduciary of any such plan.
3.16.4 Except as set forth on Exhibit 3.16, the Internal Revenue
------------
Service has issued a letter for each employee pension benefit plan, as defined
in Section 3(2) of ERISA listed on Exhibit 3.16, determining that such plan is a
------------
qualified plan under Section 401(a) of the Code and is exempt from United States
Federal Income Tax under Section 501(a) of the Code, and there has been no
occurrence since the date of any such determination letter which has adversely
affected such qualification. The Company does not maintain a plan or arrangement
intended to qualify under Section 501(c)(9) of the Code.
3.16.5 Except as set forth on Exhibit 3.16, each Benefit Plan that
------------
provides medical benefits has been operated in compliance with all requirements
of Section 4980B(f) of the Code and Sections 601 through 608 of ERISA relating
to continuation of coverage under certain circumstances in which coverage would
otherwise cease. All former employees or other persons entitled to such
continuation of coverage are listed on Exhibit 3.16.
------------
3.16.6 Neither the Company nor any entity that is treated as a single
employer with the Company pursuant to Section 414(b), (c), (m) or (o) of the
Code currently maintains or contributes to any Benefit Plan that is subject to
Title IV of ERISA, nor has
23
<PAGE>
previously maintained or contributed to any such plan that has resulted in any
liability or potential liability for the Company under said Title IV. There
shall not be as of Closing any outstanding unpaid minimum funding waiver within
the meaning of Code Section 412(d).
3.16.7 Attached hereto as a part of Exhibit 3.16 is a 5-year
------------
contribution history indicating the dollar amount contributed and the level of
contribution as a percentage of compensation of covered participants for each
profit sharing plan, stock bonus plan or other retirement plan to which the
Company makes discretionary contributions.
3.16.8 The Company does not maintain any plans or programs that provide
post retirement medical benefits (other than benefits described in Section
3.16.5 and those which are required by law), post employment benefits, death
benefits or other post retirement welfare benefits. A copy of any written
description of post retirement welfare benefits that has been provided to
employees is attached hereto as a part of Exhibit 3.16. Copies of each plan
------------
document, insurance contract or other written instrument providing for post
retirement welfare benefits, together with a description of any advance funding
arrangement that has been established to fund post retirement welfare benefits,
are attached hereto as a part of Exhibit 3.16. Exhibit 3.16 contains a list of
------------ ------------
those persons who are currently retired with a right to future post retirement
welfare benefits and also contains a list of employees who would be currently
eligible for post retirement welfare benefits if they retired and satisfied any
waiting period provided for under the applicable plan. Except as otherwise
disclosed on Exhibit 3.16, all plans or programs for providing post retirement
------------
medical, death or other welfare benefits could be terminated by the Company as
of Closing without liability for such benefits to any employee who has not
retired on or before the Effective Time.
3.16.9 Neither the Company nor any employer referred to in Section
3.16.6 above, maintains, nor has contributed within the past five years to, any
multiemployer plan within the meaning of Sections 3(37) or 4001(a)(3) of ERISA.
No such employer currently has any liability to make withdrawal liability
payments to any multiemployer plan. There is no pending dispute between any such
employer and any multiemployer plan concerning payment of contributions or
payment of withdrawal liability payments.
3.16.10 All Benefit Plans have been operated and administered in
accordance with their respective terms and no inconsistent representation or
interpretation has been made to any plan participant. Except as set forth on
Exhibit 3.16, no lawsuit or complaint (including any dispute that might result
- ------------
in a lawsuit or complaint against, by, or relating to any Benefit Plan or any
fiduciary, as defined in Section 3(21) of ERISA) of a Benefit Plan has been
filed or is pending.
3.17 Certain Payments. Neither the Company nor any officer, employee,
----------------
agent or affiliate of the Company, including, without limitation, any
Stockholder, has, directly or indirectly, given or agreed to give or solicited
or received any gift, rebate or similar benefit
24
<PAGE>
to any customer, supplier, governmental employee or other Person which (i) might
subject the Company to any damage or penalty in any civil, criminal or
governmental litigation or proceeding, (ii) if not given in the past might have
had an adverse effect on the assets, business or operation of the Company or
(iii) if not continued in the future might adversely affect the Company's
assets, business, operations or prospects.
3.18 Customers. The Company has not lost, during the past eighteen (18)
---------
months, any customer or group of related customers or received notice of the
possibility of any such loss, which accounted for more than five percent (5%) of
the aggregate fees received, or products and services furnished by it during
such period.
3.19 Insurance. A true and correct list of all insurance contracts,
---------
including all policies of fire, liability (including products and environmental
liability), workers' compensation, casualty, business interruption and all other
forms of insurance owned, held by or maintained by or on behalf of the Company,
which policies are currently in full force and effect, is attached hereto as a
part of Exhibit 3.12. Copies of all such insurance contracts have been
------------
delivered to Purchaser. All such contracts are valid, outstanding, and
enforceable policies, provide insurance coverage typical for the type of
business engaged in by the Company, and provide that they will remain in full
force and effect through the Closing Date. The policies of fire and extended
coverage are in amounts that are not less than 100% of the full insurable value
of the properties and assets covered thereby. (The term "full insurable value"
as used herein shall mean actual replacement cost without deduction for physical
depreciation.) The liability, workers' compensation and casualty insurance
policies extend coverage and insure the liability associated with each and every
suit, action, proceeding, claim or investigation listed on Exhibit 3.10. There
------------
presently are no claims outstanding, nor, to the best of any Stockholder's
knowledge, any basis therefor, under any of the policies listed on Exhibit 3.12,
------------
except as disclosed on Exhibit 3.10. Attached as Exhibit 3.19 is a schedule
------------ ------------
setting forth the claims and loss history of the Company for the three (3) years
prior to Closing under all policies of worker's compensation insurance,
employers' liability insurance, general liability insurance and automobile
liability insurance, property insurance and errors and omissions insurance.
As soon as practicable after Closing, the Company covenants to purchase the
extended reporting period of the Company's Errors and Omissions insurance. The
extended reporting period should be purchased for a two (2) year period
commencing on the Closing Date and shall cover errors and omissions of the
Company occurring prior to the closing date.
3.20 Approvals. No filing or registration with, and no consent, approval,
---------
permit, authorization, license, certificate or order of any governmental
authority is required by any applicable law or by any applicable judgment, order
or decree or any applicable rule or regulation of any governmental authority to
permit the Company or any Stockholder to execute, deliver or perform this
Agreement or any document, instrument or agreement required to be executed by
such party at or prior to the Closing.
25
<PAGE>
3.21 Transactions with Affiliates. Except as disclosed on Exhibit 3.21,
---------------------------- ------------
since December 31, 1996, the Company has not purchased, leased or otherwise
acquired any property or assets or obtained any property or assets or obtained
any services from, or sold, leased or otherwise disposed of any property or
assets or provided services to (except with respect to remuneration for services
rendered as an officer or employee of the Company in the ordinary course), (i)
any employee of the Company, (ii) any Stockholder, (iii) any Person that is,
directly or indirectly, controlled by any Stockholder, or (iv) any member of the
immediate family of a Stockholder (for purposes of this Section 3.21, each such
Person is referred to as an "Affiliate"). Except as set forth in Exhibit 3.21,
------------
(a) the contracts, instruments and agreements listed on Exhibit 3.12 do not
------------
include any obligation or commitment between the Company and any Affiliate, (b)
the assets of the Company do not include any receivable or other obligation from
an Affiliate to the Company, and (c) the liabilities reflected in the Financial
Statements, and those on the books and records of the Company as of the Closing
Date, do not include any obligation or commitment of any Affiliate.
3.22 Exhibits. All Exhibits attached hereto are true, correct and complete.
--------
Matters disclosed on each Exhibit shall be deemed disclosed only for purposes of
the matters to be disclosed in such Exhibit and shall not be deemed to be
disclosed for any other purpose, unless expressly provided therein. This
Agreement and the Exhibits hereto disclose all facts material to the Company,
its assets and business. No statement contained herein or in any certificate,
Exhibit, document or other instrument furnished to Purchaser pursuant to the
provisions hereof contains any untrue statement of any material fact or omits to
state a material fact necessary in order to make the statement contained herein
or therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS.
--------------------------------------------------
Each Stockholder represents and warrants as follows:
4.1 Authority. If such Stockholder is not an individual, (a) such
---------
Stockholder is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (b) the execution,
delivery and performance by such Stockholder of this Agreement and each and
every agreement, document and instrument contemplated hereby have been duly
authorized and approved by all necessary action on the part of such Stockholder,
and (c) the execution and delivery by such Stockholder of this Agreement and the
other agreements, documents and instruments contemplated hereby and the
consummation of the transactions contemplated hereby and thereby do not require
the act or consent of any other Person. If such Stockholder is an individual,
such Stockholder has the capacity and authority to execute and deliver this
Agreement and the other agreements, documents and instruments contemplated
hereby, and to consummate the transactions contemplated hereby and thereby
without the necessity of any act or consent of any other Person.
26
<PAGE>
4.2 Ownership of Shares. Such Stockholder owns, beneficially and of
-------------------
record, each of the shares of Common Stock shown as being held by such
Stockholder on Exhibit 3.3 hereto, free and clear of all liens, claims, charges,
-----------
security interests or other encumbrances of any type or nature whatsoever,
except as set forth on Exhibit 4.2. Except as set forth in Exhibit 4.2, such
----------- -----------
Stockholder does not own, beneficially or of record, either directly or
indirectly, more than one percent (1%) of the capital stock or other equity or
ownership or proprietary interest in any Person that is in competition with the
Company. Except as set forth on Exhibit 4.2, there are no outstanding options,
-----------
warrants, calls or commitments granted by such Stockholder with respect to the
shares of Common Stock shown as being owned by such Stockholder on Exhibit 3.3
-----------
hereto.
4.3 Agreement Related to Other Instruments. The execution and delivery of
--------------------------------------
this Agreement and the other documents, instruments and agreements contemplated
hereby by such Stockholder do not, and the consummation of the transactions
contemplated hereby will not, violate or constitute an occurrence of default
under any provision of, or conflict with, or result in any acceleration of any
obligation under, or give rise to a right by any party to terminate its
obligations under, any mortgage, deed of trust, conveyance to secure debt, note,
loan, lien, lease, agreement or instrument, or any order, judgment, decree or
other arrangement to which either the Company or such Stockholder is a party or
by which any such party is bound or their assets affected.
4.4 Litigation and Claims. Except as otherwise set forth on Exhibit 4.4
--------------------- -----------
hereto, there is no suit, action, proceeding, claim or investigation pending or
the knowledge of such Stockholder, threatened against or affecting such
Stockholder which would have a material adverse effect on the assets, business
or financial condition of such Stockholder or the Company or the ability of such
Stockholder to consummate the transactions contemplated hereby.
4.5 Company Representations. To the best knowledge of each Stockholder,
-----------------------
the representations and warranties of the Company contained in Section 3 hereof
are true and correct in all respects.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
-----------------------------------------------
The Purchaser represents and warrants to each of the Stockholders as
follows:
5.1 Organization and Standing. The Purchaser is a corporation duly
-------------------------
organized, validly existing and in good standing under the laws of the State of
Georgia.
5.2 Corporate Power and Authority. The Purchaser has the full power and
-----------------------------
authority (corporate and otherwise) to execute and deliver this Agreement, to
perform hereunder, and to consummate the transactions contemplated hereby
without the necessity of any act, approval or consent of any other person or
entity whomsoever. The execution, delivery and performance by the Purchaser of
this Agreement and each and every agreement,
27
<PAGE>
document and instrument provided for herein have been duly authorized and
approved by the Board of Directors, or the Executive Committee thereof, of the
Purchaser. This Agreement, and each and every other agreement, document and
instrument to be executed, delivered and performed in connection herewith
constitute or will, when executed and delivered, constitute the legal, valid and
binding obligations of the Purchaser enforceable against it in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, applicable equitable principles, or
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally.
5.3 Agreement Does Not Violate Other Instruments. The execution and
--------------------------------------------
delivery of this Agreement by the Purchaser does not, and the consummation of
the transactions contemplated hereby will not, violate any provisions of the
Articles of Incorporation, as amended, or Bylaws, as amended, of the Purchaser
or violate or constitute an occurrence of default under any provision of, or
conflict with, result in acceleration of any obligation under, or give rise to a
right by any party to terminate its obligations under, any mortgage, deed of
trust, conveyance to secure debt, note, loan, lien, lease, agreement,
instrument, or any order, judgment, decree or other arrangement to which it is a
party or by which it is bound or its assets are affected.
5.4 Shares Acquired for Investment. The Purchaser is acquiring the
------------------------------
Company's shares for its own account as an investment and not with a view to any
distribution thereof. The Purchaser acknowledges and understands that none of
the Company's shares have been registered under the 1933 Act, or under any other
federal, state or local statute or regulation and that, as a consequence, the
Purchaser may not sell or otherwise dispose of any of such shares unless such
shares are registered or an exemption from such registration is available to the
Purchaser at the time of and in connection with any proposed sale or
disposition.
5.5 Stock Will be Validly Issued. Upon consummation of the Exchange as
----------------------------
herein contemplated and satisfaction of all other terms and conditions hereof,
the shares of Equifax Common Stock to be issued to the Stockholders pursuant
hereto will be duly authorized, validly issued and outstanding, fully paid and
nonassessable.
5.6 Statements True and Correct. No statement contained herein or in any
---------------------------
certificate, Exhibit, document or other instrument furnished to the Company or
the Stockholders pursuant to the provisions hereof concerning Purchaser contains
any untrue statement of any material fact or omits to state a material fact
necessary in order to make the statement contained herein or therein not
misleading.
5.7 Purchaser Status. Purchaser is owned directly by Equifax Inc.
----------------
28
<PAGE>
6. ADDITIONAL AGREEMENTS OF THE PARTIES.
------------------------------------
6.1 Resignation of Directors and Officers. At the Closing, the Stockholders
-------------------------------------
covenant and agree to cause all officers and all members of the Board of
Directors of the Company to resign, effective immediately following the Closing
after the issuance of a certificate representing the shares acquired hereunder
in the name of the Purchaser as contemplated by Section 9.2.1(a) hereto.
6.2 Release by the Stockholders and Former Stockholders. Each of the
---------------------------------------------------
Stockholders hereby totally and irrevocably releases the Company from any and
all duties and obligations owed by the Company to such Stockholder as of the
Closing Date, and from any claims or possible claims, whether known or unknown,
that such Stockholder has or may have against the Company or any of its assets,
and agrees at Closing to deliver an executed Release in the form of Exhibit
-------
2.8(a) attached hereto. Each Stockholder agrees to use his or its best efforts
- ------
to cause each Former Stockholder to deliver an executed Release in the form of
Exhibit 2.8(a) attached hereto.
- --------------
6.3 Covenant Not to Compete. Each Stockholder agrees to execute and
-----------------------
deliver at the Closing a Covenant Not to Compete agreement in the form of
Exhibit 6.3 attached hereto, and agrees to use his or its best efforts to cause
- -----------
each Former Stockholder to deliver an executed Covenant Not to Compete agreement
in the form of Exhibit 6.3 attached hereto.
-----------
6.4 Employment Agreement. Peterson agrees to execute and deliver at the
--------------------
Closing an Employment Agreement together with the attached agreements in the
form of Exhibit 6.4 attached hereto.
-----------
6.5 Stockholders Agreements. At the Closing, the Company and the
-----------------------
Stockholders shall take all actions necessary to terminate any existing
stockholders agreements relating to the Company's stock.
6.6 Cooperation. Purchaser, Company and Stockholders will cooperate in all
-----------
respects in connection with (i) securing any nongovernmental approvals, consents
and waivers of third parties necessary for the consummation of the transactions
contemplated hereby and (ii) giving notices to any governmental authority, or
securing the permission, approval, determination, consent or waiver of any
governmental authority, required by law in connection with the transactions
contemplated hereby.
6.7 Escrow Agreement. Each of the Stockholders hereby agrees at Closing to
----------------
deliver an executed Escrow Agreement in the form of Exhibit 6.7 attached hereto.
-----------
6.8 Certain Tax Matters. If the Company is required to file a state, local,
-------------------
or foreign income tax return for a taxable period covering days before and after
the Closing Date, the Purchaser shall cause such return to be filed, but the
Stockholders shall pay in Equifax Common Stock to the Purchaser (as an
adjustment to the purchase price) the amount
29
<PAGE>
by which the tax attributable to the period through the Closing Date exceeds the
amount accrued for such tax and reflected on the Closing Date Balance Sheet. The
tax attributable to the period through the Closing Date shall be determined as
if that period were a separate taxable year. If the tax attributable to such
period is more than the amount reflected on the Closing Date Balance Sheet, the
Purchaser shall notify the Stockholders in writing of the amount of the excess.
Within 10 days after the date of such notification, the Stockholders shall pay
such amount to the Purchaser or inform the Purchaser in writing that the
Stockholders disagree with the computation of the amount. In the latter case,
the Stockholders and the Purchaser shall proceed in good faith to determine the
correct amount, and the Stockholders' payment to the Purchaser shall be due ten
(10) days after the Stockholders and the Purchaser agree to the amount payable.
Any payment made more than 10 days after the Purchaser initially notifies the
Stockholders of the excess shall include interest at the rate of 10 percent
(10%) per annum from the end of such 10-day period to the date of payment.
6.9 Registration Rights Agreement. At the Closing, Equifax and the
-----------------------------
Stockholders shall enter into a Registration Rights Agreement in the form of
Exhibit 2.10 hereto.
- ------------
6.10 Investment Letter. At the Closing, each Stockholder shall execute and
-----------------
deliver to Equifax an Investment Letter in the form of Exhibit 2.11 hereto.
------------
6.11 Covenant With Respect to COBRA Obligations. The Stockholders agree that
------------------------------------------
they and each of them will be responsible for the amount, if any, by which
Reimbursement Costs (as defined herein) exceed Health Premiums (as defined
herein); provided, however, that in no event shall the aggregate liability
expressed by the foregoing formula exceed the sum of Fifty Thousand Dollars
($50,000) (the "COBRA Liability"). An amount equal to the maximum potential
COBRA Liability ($50,000) shall be withheld from the Purchase Price referred to
in Section 2.2.1 above and shall be placed in escrow pursuant to Section 6.7
above and expended or released as provided therein. For purposes of the
foregoing, the term "Reimbursement Costs" shall mean the aggregate cost of
benefits actually paid to Qualified Beneficiaries (as defined herein) for
reimbursable expenses incurred after the Closing under any group health plan
(within the meaning of Section 5000(b)(1) of the Code) maintained by or on
behalf of the Company plus any necessary legal or court costs attributable to
any properly denied claims for benefits by Qualified Beneficiaries; the term
"Health Premiums" shall mean the aggregate contributions paid by Qualified
Beneficiaries for continuation coverage under any such group health plan
following the Closing; and the term "Qualified Beneficiaries" shall mean the
persons identified on Exhibit 3.16 in response to the disclosure required by
Section 3.16.5 hereof, or any other persons, whether so identified or not, who
are entitled to such benefits as a consequence of the maintenance of such a
group health plan by the Company prior to and/or through the Closing.
Notwithstanding anything to the contrary stated herein, the limitation included
in Section 10.4.2 hereto shall not apply to the indemnification obligations of
the Stockholders contained in this Section 6.11.
30
<PAGE>
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER.
----------------------------------------------------
The obligations of the Purchaser to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction, on or before the Closing
Date, of each and every one of the following conditions, all or any of which may
be waived in writing, in whole or in part, by the Purchaser for purposes of
consummating such transactions, but without prejudice to any other right or
remedy which the Purchaser may have hereunder as a result of any
misrepresentations by, or breach of any covenant or warranty of any Stockholder
or the Company contained in this Agreement or any other certificate or
instrument furnished by any Stockholder or the Company hereunder:
7.1 Representations True at Closing. The representations and warranties
-------------------------------
made by the Stockholders and the Company in this Agreement, the Exhibits hereto
or any document or instrument delivered to the Purchaser or its representatives
hereunder shall be true and correct on the Closing Date hereunder with the same
force and effect as though such representations and warranties had been made on
and as of such time (except for changes contemplated by this Agreement or
occurring in the ordinary course of business which do not singly or in the
aggregate have a material adverse effect on the business, operations or
financial condition of the Company).
7.2 Covenants of the Stockholders and the Company. The Stockholders and
---------------------------------------------
the Company shall have duly performed all of the covenants, acts and
undertakings to be performed by them on or prior to the Closing Date and they
shall deliver to the Purchaser certificates dated as of the Closing Date
certifying to the fulfillment of this condition and the condition set forth in
Section 7.1 hereof. Such certificates shall be deemed representations and
warranties of the Stockholders and the Company hereunder.
7.3 No Injunction Etc. No action, proceeding, investigation, regulation or
------------------
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain, prohibit, or obtain
substantial damages in respect of, or which is related to, or arises out of,
this Agreement or the consummation of the transactions contemplated hereby, or
which is related to or arises out of the business of the Company or the
Stockholders, if such action, proceeding, investigation, regulation or
legislation, in the judgment of the Purchaser, would make it inadvisable to
consummate such transactions.
7.4 Opinion of Counsel. A favorable opinion of Powell, Goldstein, Frazer &
------------------
Murphy LLP, counsel for the Stockholders and the Company, shall have been
delivered to the Purchaser, dated as of the Closing Date, substantially in form
and substance of the opinion attached hereto as Exhibit 7.4.
-----------
7.5 Consents and Waivers. The Purchaser shall have received from the
--------------------
Stockholders and the Company a true and correct copy of each consent and waiver
required
31
<PAGE>
(a) in Section 2.4 hereof, or (b) for the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
7.6 Regulatory Approvals. The execution and the delivery of this Agreement
--------------------
and the consummation of the transactions contemplated hereby shall have been
approved by all regulatory authorities whose approvals are required by law.
7.7 Absence of Adverse Changes. Since June 30, 1997, the Company shall not
--------------------------
have suffered (a) any change in its financial condition, business, properties or
assets which singly or in the aggregate adversely affects the business, assets,
operations or financial condition of the Company, or (b) any transaction or
event described in Section 3.9 hereof, and the President of the Company shall
deliver to the Purchaser a certificate to such effect.
7.8 Employment Agreement. Peterson shall have executed and delivered an
--------------------
Employment Agreement in the form of Exhibit 6.4 hereto.
-----------
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE STOCKHOLDERS.
-----------------------------------------------------------
The obligations of the Stockholders to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction, on or
before the Closing Date, of each and every one of the following conditions, all
or any of which may be waived, in whole or in part, by the Stockholders but
without prejudice to any other right or remedy which the Stockholders may have
hereunder as a result of any misrepresentation by, or breach of any covenant or
warranty of the Purchaser contained in this Agreement, or any certificate or
instrument furnished by it hereunder:
8.1 Representations True at Closing. The representations and warranties
-------------------------------
made by the Purchaser in this Agreement or any document or instrument delivered
to the Stockholders or their representatives hereunder shall be true and correct
on the Closing Date hereunder with the same force and effect as though such
representations and warranties had been made on and as of such date, except for
changes contemplated by this Agreement.
8.2 Covenants of the Purchaser. The Purchaser shall have duly performed
--------------------------
all of the covenants, acts and undertakings to be performed by it on or prior to
the Closing Date, and a duly authorized officer of the Purchaser shall deliver
to the Stockholders a certificate dated as of the Closing Date certifying to the
fulfillment of this condition and the condition set forth under Section 8.1
above. Said certificate shall be deemed a representation and warranty of the
Purchaser hereunder.
8.3 Approvals. The execution and the delivery of this Agreement and the
---------
consummation of the transactions contemplated hereby shall have been approved by
all regulatory authorities whose approvals are required by law.
32
<PAGE>
9. CLOSING.
-------
9.1 Time and Place of Closing. The Closing shall be held at the offices of
-------------------------
Hunton & Williams, 600 Peachtree Street, N.E., Suite 4100, Atlanta, Georgia, on
December __, 1997, commencing at 10:00 a.m. Atlanta time, or at such other place
or on such other date as is agreed to in writing by the parties hereto.
9.2 Transactions at Closing. At the Closing, each of the following
-----------------------
transactions shall occur:
9.2.1 The Stockholders' Performance. At the Closing, the Stockholders
-----------------------------
shall deliver to the Purchaser the following:
(a) certificates representing all of the Purchased Stock, duly endorsed
for transfer or accompanied by instruments of transfer satisfactory in form
and substance to the Purchaser and its counsel, together with a new
certificate representing such shares issued in the name of the Purchaser;
(b) certificates of compliance or certificates of good standing of the
Company, as of the most recent practicable date, from the Secretary of State,
or other appropriate governmental authority, of each of the jurisdictions
listed on Exhibit 3.1 hereto;
-----------
(c) certified copies of resolutions of the Board of Directors of Company
approving the transactions set forth in this Agreement;
(d) opinion of counsel for the Stockholders and the Company in the form
of Exhibit 7.4 hereto;
-----------
(e) evidence of the resignations described in Section 6.1;
(f) incumbency certificates for the officers of the Company executing
this Agreement or any document or agreement ancillary hereto;
(g) executed Release agreements in the form of Exhibit 6.2 hereto, as
-----------
contemplated by Section 6.2 hereof;
(h) executed Covenant Not to Compete agreements in the form of Exhibit
-------
6.3 hereto, as contemplated by Section 6.3 hereof;
---
(i) executed Employment Agreement in the form of Exhibit 6.4 hereto, as
-----------
contemplated by Section 6.4 hereof;
(j) executed Escrow Agreement for Stockholders in the form of Exhibit
-------
6.7 hereto, as contemplated by Section 6.7 hereof;
---
33
<PAGE>
(k) executed Registration Rights Agreement in the form of Exhibit 2.10
------------
hereto, as contemplated by Section 2.10 hereof;
(l) such other evidence of the performance of all covenants and
satisfaction of all conditions required of the Stockholders by this Agreement
as the Purchaser or its counsel may reasonably require.
9.2.2 Performance by the Purchaser. At the Closing, the Purchaser shall
----------------------------
deliver to the Stockholders the following, as applicable:
(a) to the Stockholders, certificates of the Equifax Common Stock, duly
issued, to the Stockholders, as contemplated by Section 2.3 hereof;
(b) certified copies of resolutions of the Board of Directors of the
Purchaser, or the Executive Committee thereof, approving the transactions set
forth in this Agreement;
(c) incumbency certificate for the officers of the Purchaser executing
this Agreement or any agreement delivered ancillary hereto;
(d) executed Employment Agreement in the form of Exhibit 6.4 hereto, as
-----------
contemplated by Section 6.4 hereof;
(e) executed Escrow Agreement in the form of Exhibit 6.7 hereto, as
-----------
contemplated by Section 6.7 hereof;
(f) executed Registration Rights Agreement in the form of Exhibit 2.10
------------
hereto, as contemplated by Section 2.10 hereof;
(g) such other evidence of all covenants and satisfaction of all
conditions required of Purchaser by this Agreement, as the Stockholders or
their counsel may reasonably require.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION.
--------------------------------------------------------------
10.1 Survival of Representations and Warranties of the Stockholders and the
----------------------------------------------------------------------
Company; Indemnification.
- ------------------------
10.1.1 All representations and warranties by the Stockholders and the
Company in this Agreement, the Exhibits hereto, or in any document or instrument
executed and delivered pursuant hereto are material, have been relied upon by
the Purchaser, shall survive the Closing hereunder and shall not merge in the
performance of any obligation by any party hereto. Any examination, inspection
or audit of the properties, financial condition or other matters of the Company
and its business conducted by the Purchaser or on its behalf
34
<PAGE>
on or prior to the Closing Date shall in no way limit, affect or impair the
ability of Purchaser to rely upon the representations, warranties, covenants and
obligations of the Stockholders and the Company set forth herein.
10.1.2 Subject to Section 10.4 hereto, each Indemnifying Stockholder
hereby agrees to indemnify and hold the Purchaser harmless on an after-tax basis
from and against all liability, loss, damage, or injury and all reasonable costs
and expenses (including reasonable counsel fees and costs of any investigation
or suit related thereto) actually incurred, net of any resulting income tax
benefits actually realized by the Purchaser, and arising from (i) any
misrepresentation, or breach of any covenant or warranty of the Company
contained in this Agreement or the Exhibits hereto, or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by the Company hereunder; (ii) any claim for
workers' compensation that relates to an occurrence prior to Closing, to the
extent not covered by insurance maintained by the Company prior to Closing;
(iii) the payment by the Company of federal, state, local or foreign taxes
(together with any interest and penalties thereon), including, without
limitation, any income, unemployment compensation, social security, payroll,
sales, intangible, use, excise, privilege, ad valorem, franchise, license and
any other tax under the laws of the United States or any foreign jurisdiction or
any state, province, or municipal or political subdivision thereof, if any, that
accrued or relates to any period through and including the Closing Date and is
in excess of the amount accrued therefor on the Closing Date Balance Sheet; (iv)
any suit, action, proceeding, claim or investigation, pending or threatened, or
which may be filed in the future, which relates to the operations of the Company
or its officers, directors, employees or affiliates with regard to matters
arising prior to Closing, regardless of whether it is disclosed on Exhibits 3.10
-------------
or 3.11 hereto; or (v) any suit, action, proceeding, claim or investigation
----
arising from any claim by or on behalf of any party that such party has a
direct, equitable or beneficial interest in the Company. The parties to this
Agreement agree that the Indemnifying Stockholders will have no right of
reimbursement or contribution from the Company with respect to any right of
recovery against the Indemnifying Stockholders by the Purchaser. For all
purposes of this Article 10, any liability, loss, damage or injury and
reasonable costs and expenses (including, without limitation, reasonable counsel
fees and costs of any investigation or suit related thereto) suffered or
incurred by the Company arising from any such breach of a covenant,
representation or warranty by any Stockholder or the Company as aforesaid
against which Purchaser is indemnified and held harmless hereinabove shall be
deemed suffered and incurred by Purchaser, which shall, either independently or
jointly with the Company, be entitled to enforce such covenants of indemnity.
10.1.3 Each Indemnifying Stockholder hereby agrees to indemnify and
hold the Purchaser harmless from and against all liability, loss, damage, or
injury and all reasonable costs and expenses (including reasonable counsel fees
and costs of any investigation or suit related thereto) actually incurred and
arising from any misrepresentation, or breach of any covenant or warranty of a
Stockholder contained in this Agreement or the Exhibits hereto, or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by a Stockholder hereunder.
35
<PAGE>
10.2 Survival of Representations and Warranties of the Purchaser;
------------------------------------------------------------
Indemnification. All representations, warranties, agreements, covenants and
- ---------------
obligations made or undertaken by the Purchaser in this Agreement or in any
document or instrument executed and delivered pursuant hereto are material, have
been relied upon by the Stockholders, shall survive the Closing hereunder and
shall not merge in the performance of any obligation by any party hereto. The
Purchaser agrees to indemnify and hold the Stockholders harmless from and
against all liability, loss, damage or injury and all reasonable costs and
expenses (including reasonable counsel fees and costs of any suit related
thereto) actually incurred by the Stockholders arising from any
misrepresentations, or breach of any covenant or warranty of the Purchaser
contained in this Agreement or the Exhibits hereto, or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by the Purchaser hereunder.
10.3 Indemnification Procedure.
-------------------------
10.3.1 Any party entitled to indemnification hereunder (the "Indemnified
Party") shall notify the party obliged to indemnify (the "Indemnifying Party")
promptly after it becomes aware of any suit, claim, action, proceeding,
arbitration or investigation (each, an "Action") as to which indemnity may be
sought. In the event that the Indemnifying Party acknowledges in writing its
indemnification obligation with respect to any such Action, the Indemnifying
Party shall be entitled, at its expense, to control the defense of such Action;
provided, however, that (i) counsel for the Indemnifying Party must be approved
- -------- -------
by the Indemnified Party (which approval shall not be unreasonably withheld),
and (ii) the Indemnified Party may also participate in such defense at its own
expense; provided, further, that an Indemnifying Party shall not be entitled to
-------- -------
assume the defense or control of any Action if: (v) the Indemnified Party
agrees, in writing, to assume the cost of such Action and forgo any indemnity
claimed under this Section 10, (w) in the reasonable opinion of legal counsel
for the Indemnified Party, such Action involves the potential imposition of a
criminal liability on the Indemnified Party, its officers, directors, employees
or agents, (x) in the reasonable opinion of legal counsel for the Indemnified
Party, an actual or potential conflict of interest exists where it is advisable
for such Indemnified Party to be represented by separate counsel, (y) with
respect to Purchaser only, failure to stay the enforcement of such Action will
result in the imminent risk of sale, forfeiture or loss of the assets of the
Company or any material portion thereof or a material disruption in the
operation of the Business, or (z) with respect to Purchaser only, such Action
results in the creation of any lien on the assets of the Company or the
Business, or any portion thereof unless the Indemnifying Party shall have filed
with the court an appropriate security bond securing payment of any such lien
and all costs associated therewith; provided, however, with respect to clauses
-------- -------
(x) and (y) in this Section 10.3.1, the Indemnified Party shall conduct the
defense of the Action in a manner, in the Indemnified Party's reasonable good
faith judgment, reasonably designed to avoid or minimize potential damages for
which the Indemnifying Party will ultimately be responsible for hereunder. In
the circumstances described in the foregoing subsections 10.3.1(v) through (z),
(I) the Indemnified Party shall provide notice to the Indemnifying Party of the
assumption of the defense by the Indemnified Party and shall be entitled to
36
<PAGE>
control and assume responsibility for the defense of such Action, at the cost
and expense of the Indemnifying Party; (II) the Indemnifying Party may, in any
event, participate in all such proceedings at its own cost and expense; and
(III) the Indemnified Party will provide copies of pleadings and other documents
necessary to permit the Indemnifying Party to participate in such proceedings or
to follow the course of such proceedings.
10.3.2 The failure of the Indemnified Party to give notice as provided
herein shall relieve the Indemnifying Party of any obligation under this Article
10 only if and to the extent that such failure materially prejudices the ability
of the Indemnifying Party to defend such action, and such failure shall in no
event relieve the Indemnifying Party of any liability that the Indemnifying
Party may have to the Indemnified Party otherwise than under Article 10.
10.3.3 In the defense of any such Action, regardless of who is in
control thereof, the controlling party shall not, except with the prior written
consent of the non-controlling party, consent to entry of any judgment or enter
into any settlement, which consent of the non-controlling party will not be
unreasonably withheld provided such judgment or settlement includes as an
unconditional term thereof the giving by the claimant or plaintiff to the non-
controlling party of a release from liability with respect to such claim or
litigation and, in the case of indemnification under Section 10.1 hereof, would
not result in a material impairment of Purchaser's ability to conduct the
business of the Company in the ordinary course.
10.3.4 In the defense of any such Action, regardless of who is in
control thereof, the Indemnifying Party and the Indemnified Party shall
cooperate fully with each other, and shall cause their legal counsel,
accountants and affiliates to do so, and shall make available to the other party
all relevant books, records and information (in such party's control) during
normal business hours, and shall furnish to each other, at the Indemnifying
Party's expense, such other assistance as the other party may reasonably require
in connection with such defense.
10.4 Limits on Indemnification Obligation. Notwithstanding anything in
------------------------------------
Sections 10.1 and 10.2 to the contrary or in conflict:
10.4.1 Subject to the applicable statutes of limitation, a claim for
indemnification by the Purchaser may be made at any time based on the
representations and warranties contained in Sections 3.1.1, 3.2, 3.6, 3.11.2,
3.13.2, 3.16, 4.1 and 4.2 (collectively, "Type I Claims"). A claim for
indemnification by the Purchaser based on the representations and warranties
contained in Section 3.13.6 (a "Type II Claim") shall be forever barred unless
made by notifying the Stockholders within twenty-four (24) months after the
Closing Date. Except for Type I Claims and Type II Claims, a claim for
indemnification by the Purchaser under this Agreement shall be forever barred
unless made by notifying the Indemnifying Stockholders within three (3) years
37
<PAGE>
after the Closing Date. The Indemnifying Stockholders shall be liable to
Purchaser for all Losses based on the representations and warranties contained
in Sections 3.13.2, 4.2 and the fifth sentence of Section 3.16.2 hereto without
regard to the limitation included in Section 10.4.2 hereto.
10.4.2 Neither the Indemnifying Stockholders nor the Purchaser shall be
liable under the indemnity provisions of Section 10.1 or Section 10.2, as
applicable, in any instance until such time as the aggregate liability under
such section exceeds $86,000 (the "Basket"), in which event the Indemnifying
Stockholders or the Purchaser, as is applicable, shall be liable to the full
extent of such liability, including the Basket.
10.4.3 In no event shall the liability of the Indemnifying Stockholders
under Section 10.1 for all Losses of Purchaser exceed, in the aggregate, the
Purchase Price.
10.4.4 In determining the amount of any loss, liability or expense for
which any indemnified party is entitled to indemnification under this Agreement,
the gross amount thereof will be reduced by any insurance proceeds actually paid
to any indemnified party; provided, however, that if such party has been
indemnified hereunder but does not actually receive such proceeds until after
being indemnified, such party shall reimburse the indemnifying party for amounts
paid to such party to the extent of the insurance proceeds so received.
11. TERMINATION.
-----------
11.1 Method of Termination. This Agreement constitutes the binding and
---------------------
irrevocable agreement of the parties to consummate the transactions contemplated
hereby, the consideration for which is (a) the covenants set forth in Articles 2
and 6 hereof, and (b) expenditures and obligations incurred and to be incurred
by the Purchaser and the Stockholders in respect of this Agreement, and this
Agreement may be terminated or abandoned only as follows:
11.1.1 by the mutual consent of the Purchaser and the Stockholders;
11.1.2 by the Purchaser on or after December 31, 1997, if any of the
conditions set forth in Article 7 hereof, to which the obligations of the
Purchaser are subject, have not been fulfilled or waived, unless such
fulfillment has been frustrated or made impossible by any act or failure to act
of the Purchaser;
11.1.3 by the Stockholders on or after December 31, 1997, if any of the
conditions set forth in Article 8 hereof, to which the obligations of the
Stockholders are subject, have not been fulfilled or waived, unless such
fulfillment has been frustrated or made impossible by any act or failure to act
of the Company or the Stockholders.
38
<PAGE>
12. GENERAL PROVISIONS.
------------------
12.1 Notices. All notices, requests, demands and other communications
-------
hereunder shall be in writing and shall be delivered by hand or overnight
courier or mailed by registered or certified mail, return receipt requested,
first class postage prepaid, addressed (or sent) as follows:
12.1.1 If to the Company, at:
Goldleaf Technologies, Inc.
100 West Main Street
Hahira, Georgia 31832
Attn: David L. Peterson
If to Peterson, at:
David L. Peterson
307 E. Lawson Street
Hahira, Georgia 31632
If to Wetherington Farms or B. Wetherington at:
c/o Bobby G. Wetherington
4121 Georgia Highway 122 East
Hahira, Georgia 31632
With a copy to:
Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street, Suite 1600
Atlanta, Georgia 30303
Attn: Kathryn L. Knudson, Esq.
12.1.2 If to the Purchaser, at:
Equifax Payment Services, Inc.
11601 Roosevelt Boulevard, N.
St. Petersburg, Florida 33716
Attn: Howard Franzblau
39
<PAGE>
With a copy to:
Equifax Payment Services, Inc.
Legal Department
11601 Roosevelt Blvd., N.
St. Petersburg, FL 33716
Attention: Stephen Koch, Esq.
With a copy to:
Hunton & Williams
NationsBank Plaza - Suite 4100
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: J. William Gibson, Esq.
12.1.3 If delivered personally or by overnight courier, the date on which a
notice, request, instruction or document is delivered shall be the date on which
shall delivery is made and, if delivered by mail, the date on which such notice,
request, instruction or document is received shall be deemed to be the third
business day following the date of mailing.
12.1.4 Any party hereto may change its address specified for notices herein
by designating a new address by notice in accordance with this Section 12.1.
12.2 Brokers. The Purchaser, on the one hand, and the Stockholders and the
-------
Company, on the other, represent and warrant to each other that no broker or
finder has acted for them or any entity controlling, controlled by or under
common control with them in connection with this Agreement.
12.3 Further Assurances. At any time, and from time to time, after the
------------------
Closing Date, the Stockholders shall execute such additional instruments and
take such actions as may be reasonably requested by the Purchaser to confirm or
perfect or otherwise to carry out the intent and purposes of this Agreement.
12.4 Waiver. Any failure on the part of any party hereto to comply with
------
any of its obligations, agreements or conditions hereunder may be waived by the
party or parties to whom such compliance is owed. No waiver of any provision of
this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be effective unless it is made in writing and delivered
as provided in this Agreement.
12.5 Expenses. All expenses incurred by the parties hereto in connection
--------
with or related to the authorization, preparation and execution of this
Agreement and the Closing of
40
<PAGE>
the transactions contemplated hereby, including, without limitation of the
generality of the foregoing, all fees and expenses of agents, representatives,
counsel and accountants employed by any such party, shall be borne solely and
entirely by the party or parties which has incurred the same, except that all
expenses of the Company shall be borne solely by the Stockholders.
12.6 Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of the parties hereto and their respective successors and assigns.
12.7 Headings. The section and other headings in this Agreement are
--------
inserted solely as a matter of convenience and for reference, and are not and
shall not be deemed to be a part of this Agreement.
12.8 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes and cancels any prior agreements,
representations, warranties, or communications, whether oral or written, among
the parties hereto relating to the transactions contemplated hereby or the
subject matter herein. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an agreement in
writing signed by both parties.
12.9 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia.
12.10 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.11 Number and Gender. Whenever the context requires, references in this
-----------------
Agreement to the singular number shall include the plural, the plural number
shall include the singular and words denoting gender shall include the
masculine, feminine and neuter.
12.12 Exhibits Incorporated. All Exhibits attached hereto are incorporated
---------------------
herein by reference.
12.13 Confidentiality; Public Announcements. The Company, each Stockholder
-------------------------------------
and Purchaser agree that each will maintain the confidentiality of the terms and
provisions of this Agreement and the information and materials marked as
Confidential and delivered to them or made available for their inspection
pursuant to this Agreement. In the event the Closing does not occur, the
Company, each Stockholder and Purchaser will as soon as practicable return all
material of or concerning the other party obtained from such other party then in
their possession and hereby covenant to keep confidential any information
concerning the other party and ascertained from their review for a period of two
years commencing upon the termination of this Agreement. Notwithstanding the
foregoing, the prohibitions and restrictions set forth in this Section 12.13
shall not apply to any information (a) in the public
41
<PAGE>
domain not as a result of the violation of Purchaser's, any Stockholder's or the
Company's undertaking herein, (b) available to Purchaser, the Stockholders or
the Company on a non-confidential basis without regard to the disclosure by
Purchaser, the Stockholders or the Company to the other party, (c) available to
Purchaser, the Stockholders or the Company from a source other than the other
party (provided that such source in so acting is not violating any duty or
agreement of confidentiality), or (d) required to be disclosed by any law, rule
or regulation.
No party hereto shall, without the approval of the other parties hereto, make
any press release or other public announcement concerning the transactions
contemplated by this Agreement prior to Closing unless such party determines in
good faith, based on the advice of legal counsel, that such disclosure is
required by law or is mutually agreed by the parties, in which case that party
will consult with the other prior to making such disclosure.
42
<PAGE>
IN WITNESS WHEREOF, each party hereto has executed or caused this Agreement to
be executed on its behalf, all on the day and year first above written.
THE PURCHASER:
EQUIFAX PAYMENT SERVICES, INC.
By:/s/ Lee A. Kennedy
-------------------------------------------
Name: Lee A. Kennedy
Title: Executive Vice President and Group
Executive
EQUIFAX INC.
By:/s/ David A. Post
-------------------------------------------
Name: David A. Post
Title: Corporate Vice President and Chief
Financial Officer
THE STOCKHOLDERS:
/s/ David L. Peterson
----------------------------------------------
David L. Peterson
B.G. WETHERINGTON FARMS, L.P.
By:/s/ Bobby G. Wetherington
-------------------------------------------
Name: Bobby G. Wetherington
Title: General Partner
43
<PAGE>
B. WETHERINGTON:
/s/ Bobby G. Wetherington
----------------------------------------------
Bobby G. Wetherington
THE COMPANY:
GOLDLEAF TECHNOLOGIES, INC.
By:/s/ David L. Peterson
---------------------------------------------
Name: David L. Peterson
Title: President
44
<PAGE>
LIST OF EXHIBITS
EXHIBITS
- --------
1(a) Canned Software
1(b) Licensed Software
1(c) Proprietary Software
2.2.1 Stockholders Respective Shares of Equifax Common Stock
2.3 Exceptions to Conduct of the Business of the Company
2.8(a) Release
2.8(b) Exceptions to Release
2.8(c) Former Stockholders
2.10 Registration Rights Agreement
2.11 Investment Letter
3.1 Organization and Standing
3.2(a) Articles of Incorporation of the Company
3.2(b) Bylaws of the Company
3.3(a) Capitalization of Company
3.5.1 Financial Statements
3.5.2 Additional Liabilities of the Company
3.6 List of Additional Taxes, Interest, Penalties, etc.
3.7 List of Assets and Leases
3.7.5(ii) List of Instruments, Documents and Agreements creating
Securities for Accounts Receivable
45
<PAGE>
3.8 List of Violations of Terms of Agreements
3.9 List of Changes
3.10 List of Litigation
3.11 List of License and Permit Problems
3.12 List of Contracts
3.13 Computer Software Matters
3.14 List of Trademarks, Trade Names, Service Marks,
Service Names, etc.
3.16 ERISA Matters
3.19 Schedule of Claims History
3.21 Transaction and Affiliates
4.2 Liens on Purchased Stock
4.4 List of Stockholder Litigation
6.3 Form of Covenant Not to Compete
6.4 Form of Peterson Employment Agreement
6.7 Form of Escrow Agreement
7.4 Opinion of Counsel for the Stockholders and the Company
46
<PAGE>
EXHIBIT NO. 5
[LETTERHEAD OF HUNTON & WILLIAMS APPEARS HERE]
December 22, 1997
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
Re: Equifax Inc.
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for Equifax Inc., a Georgia corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-3 to be filed
by the Company with the Securities and Exchange Commission (the "Registration
Statement"), of an aggregate of 266,374 shares of the Company's Common Stock, $
1.25 par value per share, to be sold by certain Selling Shareholders named in
the Registration Statement (the "Shares").
In rendering this opinion, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records,
certificates of officers of the Company and certificates of public officials as
we have deemed appropriate for the purposes of providing this opinion.
In our examination, we assumed the genuineness of all signatures, the legal
capacity of all natural persons, the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as certified or photostatic copies.
Based upon the foregoing, and in reliance thereon, and subject to the
limitations, qualifications and exceptions set forth herein, we are of the
opinion that the Shares have been duly authorized and are validly issued, fully
paid and non-assessable under the laws of the State of Georgia as in effect on
this date.
We hereby consent to the reference to our Firm under the heading "legal
opinion" in the Prospectus contained in the Registration Statement and to the
filing of this Opinion with the Securities and Exchange Commission as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Hunton & Williams
-----------------------------------
Hunton & Williams
<PAGE>
EXHIBIT 23.(b)
[ARTHUR ANDERSEN LLP LETTERHEAD APPEARS HERE]
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 14, 1997 included in Equifax Inc.'s Form 10-K for the year ended
December 31, 1996 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
December 18, 1997
<PAGE>
EXHIBIT NO. 99(a)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made this 18th day of
December, 1997, by and among Equifax Inc., a Georgia corporation (the
"Company"), and those other persons who are signatories hereto (individually, a
"Stockholder" and collectively, the "Stockholders").
RECITALS
WHEREAS, the Company, Equifax Payment Services, Inc., a Delaware corporation
and wholly owned subsidiary of the Company (the "Subsidiary"), Goldleaf
Technologies, Inc., a Georgia corporation ("Goldleaf"), and the Stockholders,
have entered into a Stock Exchange Agreement (the "Exchange Agreement") dated as
of December 18, 1997, providing for the acquisition of all of the outstanding
shares of capital stock of Goldleaf by the Subsidiary through an exchange (the
"Exchange") by the Stockholders of such stock for shares of the Company's common
stock.
WHEREAS, the Stockholders upon consummation of the Exchange will hold not less
than 269,508 shares of the issued and outstanding common stock, $.01 par value,
of the Company (the "Common Stock"); and
WHEREAS, the parties to the Exchange Agreement desire the Company to register
such shares of Common Stock under the 1933 Act (as hereafter defined) for resale
by the Stockholders and the execution and delivery of this Agreement is a
condition precedent to the consummation of the Exchange.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Registration Rights.
-------------------
1.1. Definitions.
-----------
(a) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"1933 Act"), and the automatic effectiveness or the declaration or ordering of
effectiveness of such registration statement or document.
(b) The term "Registrable Securities" means all of the shares of Common
Stock issued or to be issued to any Holder in connection with the Exchange but
shall not include any Common Stock (i) which has been effectively registered
under the 1933 Act and disposed of in accordance with a registration statement
covering such security or (ii) which has been distributed to the public pursuant
to Rule 144 under the 1933 Act.
<PAGE>
(c) The term "Holder" means (i) a Stockholder and (ii) a transferee of
Registrable Securities from a Holder provided such transfer complies with
Section 1.9 of this Agreement.
(d) The term "Form S-3" means such form under the 1933 Act as in effect
on the date hereof or any successor registration form to Form S-3 under the 1933
Act subsequently adopted by the Securities and Exchange Commission (the "SEC").
(e) The term "affiliate" means a person or entity directly or indirectly
controlled by, controlling or under common control with another person or
entity.
1.2. Registrations.
-------------
(a) The Company shall use its best efforts to prepare and file with the
SEC a registration statement (the "Registration Statement") on a form available
for the registration of Registrable Securities under the 1933 Act for the resale
of the Registrable Securities issued in connection with the Exchange by the
Holders from time to time, covering all the Registrable Securities issued in
connection with the Exchange, and shall use its best efforts to have the
Registration Statement filed as soon as practicable following the Closing Date
(as defined in the Exchange Agreement), and shall use its reasonable best
efforts to cause the Registration Statement to be declared effective as soon as
possible thereafter.
(b) A reasonable time before filing a registration statement or
prospectus or any amendment or supplement thereto, the Company will furnish to
the Holders of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed.
(c) The Company shall prepare and file with the SEC such amendments and
supplements to each registration statement filed hereunder and the prospectus
used in connection therewith as may be necessary to keep the registration
statement effective until the earlier of (i) the time when all the Registrable
Securities covered by such registration statement have been sold by the Holders
and (ii) the date as of which each Holder is entitled to sell all remaining
Registrable Securities covered by such registration statement held by such
Holder, without limitation as to volume, pursuant to Rule 144 under the 1933
Act.
(d) Subject to the limitations set forth in Section 1.8 hereof and
subject to compliance with the obligations imposed by federal and state
securities laws, each Holder shall be entitled to make sales of Registrable
Securities pursuant to an effective registration statement without limit.
1.3. Obligations of the Company.
--------------------------
Whenever required under Section 1.2, the registration of any Registrable
Securities or the amendment of a registration statement filed hereunder, the
Company shall:
2
<PAGE>
(a) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement, and use its best efforts to cause each such amendment to
become effective, as may be necessary to comply with the provisions of the 1933
Act with respect to the disposition of all securities covered by such
registration statement;
(b) Furnish to the Holders such reasonable number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus),
any documents incorporated by reference into the registration statement and such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
(c) Use its best efforts to register or qualify the securities covered
by such registration statement under the securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders or the managing
underwriters, and do any and all other acts and things which may be necessary or
desirable to consummate the disposition of the securities in such jurisdictions,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction wherein it
would not but for the requirements of this paragraph (c) be obligated to be so
qualified or to consent to general service of process in any such jurisdiction;
(d) Promptly notify each Holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
1933 Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing and promptly file such amendments and
supplements which may be required pursuant to paragraph (a) of this Section 1.3
on account of such event and use its best efforts to cause each such amendment
and supplement to become effective;
(e) Use its best efforts to cause the Common Stock to be listed on a
national securities exchange; and
(f) Otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule
158 thereunder.
3
<PAGE>
1.4. Furnishing of Information.
-------------------------
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that the selling Holders shall
furnish to the Company such information regarding themselves or the Registrable
Securities held by them, and the intended method of disposition of such
securities, and otherwise cooperate with the Company and execute and deliver any
documents as shall be requested by the Company in order to effect the
registration of their Registrable Securities.
1.5. Expenses.
--------
All expenses incurred by the Company in connection with each of the
registrations, filings or qualifications pursuant to Section 1.2 (including all
amendments thereto), including (without limitation) all registration, printing
and accounting fees, fees and disbursements of counsel for the Company shall be
borne by the Company.
1.6. Indemnification.
---------------
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will and hereby
does indemnify and hold harmless each selling Holder, the officers, directors,
shareholders and partners of such Holder and each person, if any, who controls
such Holder within the meaning of the 1933 Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the 1933
Act, the 1934 Act or other federal or state law or common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(each a "Violation"): (i) any untrue statement of a material fact contained in
such registration statement, or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (including in any prospectus or preliminary prospectus included
therein), unless such untrue statement or omission was contained in or omitted
from a preliminary prospectus and corrected in a final or amended prospectus and
the seller failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation of the same of the registered securities to the
persons asserting any such loss, claim, damage or liability in the case where
such delivery is required by the 1933 Act, or (ii) any other violation by the
Company of the 1933 Act or any other securities law or any rule or regulation
promulgated thereunder. The Company will reimburse each such selling Holder,
officer, director, shareholder, partner or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. The indemnity
agreement contained in this Section 1.6(a) shall not apply to amounts paid in
settlement of any loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable to a Holder in any such
4
<PAGE>
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for inclusion in such
registration statement by or on behalf of such Holder or controlling person.
(b) To the fullest extent permitted by law, each selling Holder will and
hereby does indemnify and hold harmless the Company, each of its directors, each
of its officers who sign the registration statement, each person, if any, who
controls the Company within the meaning of the 1933 Act, each agent and any
other selling Holder selling securities in such registration statement and any
of its directors, officers or partners or any person who controls such selling
Holder, against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the 1933 Act, the 1934 Act or other federal
or state or common law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with information furnished by or on behalf of
such Holder expressly for inclusion in such registration statement; and each
such selling Holder will reimburse any legal or other expenses reasonably
incurred by (x) the Company or any such director, officer, agent, controlling
person of the Company, or (y) other selling Holder, officer, director, partner
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
-------- -------
liability of each selling Holder hereunder shall be limited to the proportion of
any such loss, claim, damage, liability or expense which is equal to the
proportion that the total price to the public at which the registered securities
sold by such selling Holder under such registration statement bears to the total
public offering price of all securities, but not in any event to exceed the
proceeds received by such selling Holder from the sale of Registrable Securities
covered by such registration statement. The indemnity agreement contained in
this Section 1.6(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the selling Holder (which consent shall not be unreasonably
withheld) nor, in the case of a sale directly by the Company of its securities
(including a sale of such securities through any underwriter retained by the
Company to engage in a distribution solely on behalf of the Company), shall the
selling Holder be liable to the Company in any case in which such untrue
statement or alleged untrue statement or omission or alleged omission was
contained in a preliminary prospectus and corrected in a final or amended
prospectus, and the Company failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the securities to the
person asserting any such loss, claim, damage or liability in any case where
such delivery is required by the 1933 Act.
(c) Each indemnified party or parties shall give reasonably prompt
notice to each indemnifying party or parties of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party or parties shall not relieve it or
them from any liability which it or they may have under this indemnity
agreement, except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. If the indemnifying party or parties
so elects within a reasonable time after receipt of such notice, the
indemnifying party or parties may assume the defense of such action or
5
<PAGE>
proceeding at such indemnifying party's or parties' expense with counsel chosen
by the indemnifying party or parties and approved by the indemnified party
defendant in such action or proceeding, which approval shall not be unreasonably
withheld; provided, however, that if such indemnified party or parties determine
-------- -------
in good faith that a conflict of interest exists and that therefore it is
advisable for such indemnified party or parties to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses available
to it or them which are different from or in addition to those available to the
indemnifying party, then the indemnifying party or parties shall not be entitled
to assume such defense and the indemnified party or parties shall be entitled to
separate counsel at the indemnifying party's or parties' expense. If an
indemnifying party or parties is not so entitled to assume the defense of such
action or does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying party or
parties will pay the reasonable fees and expenses of counsel for the indemnified
party or parties. Notwithstanding the foregoing, the indemnifying party shall
not be obligated to pay the reasonable fees and expenses of more than one
counsel for the indemnified parties with respect to any claim, unless in the
reasonable judgment of counsel to any indemnified party, expressed in a writing
delivered to the indemnifying party, a conflict of interest may exist between
such indemnified party and any other indemnified party with respect to such
claim, in which event the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel or counsels (which shall
be limited to one counsel per indemnified party). No indemnifying party or
parties will be liable for any settlement effected without the written consent
of such indemnifying party or parties, which consent shall not be unreasonably
withheld. If an indemnifying party is entitled to assume, and assumes, the
defense of such action or proceeding in accordance with this paragraph, such
indemnifying party or parties shall not, except as otherwise provided in this
subsection (c), be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action or
proceeding.
(d) If the indemnification provided for in this Section 1.6 is
unavailable to a party that would have been an indemnified party under this
Section 1.6 in respect of any claims referred to herein, then each party that
would have been an indemnifying party hereunder shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such claims in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and such indemnified party on the other in connection with the
action, statement or omission which resulted in such claims, as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged omission to
state a material fact relates to information supplied by the indemnifying party
or such indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing provisions of this Section 1.6(d), a selling
Holder of registered securities shall not as an indemnifying party be required
to contribute any amount in excess of (x) the amount by which the total price at
which the registered securities sold by such indemnifying party were offered to
the public exceeds (y) the amount of any damages which such indemnifying party
has otherwise been required to pay by reason of such action, untrue or alleged
untrue statement or omission or alleged omission. The Company and each selling
6
<PAGE>
Holder of registered securities agrees that it would not be just and equitable
if contribution pursuant to Section 1.6(d) 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 1.6(d). The
amount paid or payable by an indemnified party as a result of the claims
referred to above in this Section 1.6(d) shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim.
(e) Without the prior written consent of the indemnified party, no
indemnifying party shall consent to entry of judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release of all
liability in respect of such claim.
(f) No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of fraudulent misrepresentation within the meaning of
such Section 11(f).
1.7. Availability of Rule 144.
------------------------
With a view of making available to the Holders the benefits of Rule 144
promulgated under the 1933 Act and any other rule or regulation of the SEC that
may at any time permit a Holder to sell securities of the Company to the public
without registration and with a view to making it possible for the Holders to
register the registered securities pursuant to a registration statement on Form
S-3, the Company agrees to use its best efforts:
(a) to make and keep public information available, as those terms are
understood and defined in Rule 144, until such information is no longer required
to be available in order for any Holder to sell his or her Registrable
Securities;
(b) to file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act throughout
the effective period of the Registration Statement specified in Section 1.2(c);
and
(c) to furnish to any Holder so long as the Holder owns any Registrable
Securities forthwith upon request (i) a written statement by the Company as to
its compliance with the reporting requirements of Rule 144, the 1933 Act and the
1934 Act or as to its qualification as a registrant whose securities may be
resold pursuant to Form S-3, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing the Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
7
<PAGE>
1.8. Holdback Agreements.
-------------------
Upon the request of the underwriters managing a public offering for sale
by the Company of its securities, each Holder shall not sell or otherwise
transfer or dispose of any Registrable Securities for 120 days following the
effective date of a registration statement filed by the Company under the 1933
Act covering the offer and sale of Common Stock or such other securities by the
Company in an underwritten offering without the prior written consent of the
underwriters for such offering. The Company may impose stop transfer
restrictions with respect to Registrable Securities subject to the foregoing
restriction until the end of the 120-day period set forth above.
1.9. Transfer of Registration Rights.
-------------------------------
The registration rights of a Holder under this Agreement may be
transferred to any transferee who acquires all of the shares of Common Stock
originally acquired by such Holder, dated as of even date herewith, by, between
and among the Company and the Stockholders, provided, however, that the Company
-------- -------
is given written notice by the transferor at the time of such transfer stating
the name and address of the transferee and identifying the securities with
respect to which the rights under this Agreement are being assigned and provided
further that the transferee agrees in writing to acquire and hold such
securities subject to the provisions of this Agreement.
2. Representations and Warranties of the Stockholders.
--------------------------------------------------
As an inducement of the Company to issue the Registrable Securities to
each Stockholder, each Stockholder represents and warrants to the Company as
follows:
2.1. No Distribution.
---------------
Each Stockholder is acquiring the Registrable Securities for its own
account with no view to any distribution thereof in violation of the 1933 Act.
Each Stockholder understands that since the Registrable Securities have not been
registered under the 1933 Act, the Registrable Securities must be held
indefinitely unless they are subsequently registered under the 1933 Act or an
exemption from such registration is available. Each Stockholder acknowledges
that the Company is under no obligation to register under the 1933 Act any sale
of the Registrable Securities or to comply with any provisions which would
entitle any such sale to any exemption from registration, except as provided in
this Agreement. Each Stockholder is fully familiar with Rule 144 promulgated
under the 1933 Act.
2.2. Information Made Available.
--------------------------
Each Stockholder has received and reviewed the Company's most recent
Annual Report to Stockholders, its most recent Annual Report on Form 10-K and
its most recent Quarterly Report on Form 10-Q. In addition, each Stockholder has
8
<PAGE>
had the opportunity to discuss the Company's business, management and financial
affairs with the Company's management. Each Stockholder has such knowledge and
experience in financial matters that it is capable of evaluating the merits and
risks of an investment in the Registrable Securities. Each Stockholder's
financial condition is such that it is able to bear all economic risks of
investment in the Registrable Securities, including the risks of holding the
Registrable Securities for an indefinite period of time.
2.3. Legend Requirement.
------------------
Until the Registration Statement is declared effective by the SEC, each
stock certificate representing the Registrable Securities shall bear a legend
in, or substantially in, the following form and any other legend required by any
applicable state securities or Blue Sky laws:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be sold,
pledged or otherwise transferred without an effective registration
under said Act or unless the Company shall have received an opinion of
counsel satisfactory to the Company that an exemption from
registration under such Act is then available."
Such legend shall be removed by the Company upon effectiveness of the
Registration Statement. The Company may maintain a "stop transfer order"
against the Registrable Securities until the Registration Statement is declared
effective.
2.4. Prospectus Requirements.
-----------------------
Each Stockholder hereby covenants with the Company that he, she or it
will promptly advise the Company of any changes in the information concerning
each Stockholder contained in a registration statement filed hereunder and that
such Stockholder will not make any sale of Registrable Securities pursuant to
any registration statement without complying with the prospectus delivery
requirements of the 1933 Act. Each Stockholder acknowledges that occasionally
there may be times when the Company must temporarily suspend the use of the
prospectus forming a part of any such registration statement until such time as
an amendment to such registration statement has been filed by the Company and
declared effective by the SEC, the relevant prospectus supplemented by the
Company or until such time as the Company has filed an appropriate report with
the SEC pursuant to the 1934 Act. The Company shall act promptly to amend the
registration statement, supplement the prospectus or file the appropriate
reports with the SEC in order to minimize such period of suspension. During any
period in which sales are suspended and upon notice of such suspension from the
Company, each Stockholder agrees not to sell any such Registrable Securities
pursuant to any such prospectus. Each Stockholder covenants that he will not
sell any Shares pursuant to any such prospectus during the period commencing at
the time at which the Company gives such Stockholder notice of the suspension of
9
<PAGE>
the use of said prospectus and ending at the time the Company gives notice that
such Stockholder may thereafter effect sales pursuant to said prospectus.
3. Miscellaneous.
-------------
3.1. Notices.
-------
All notices, requests, demands and other communications which are
required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person or upon receipt
when transmitted by telecopy or telex or after dispatch by certified or
registered first class mail, postage prepaid, return receipt requested, or
Federal Express, to the party to whom the same is so given or made:
If to Company, to: Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attn: General Counsel and Corporate Secretary
or to such other person at such other place as the Company shall designate to
the Stockholders in writing; and
With a copy to: Hunton & Williams
600 Peachtree Street, Suite 4100
Atlanta, Georgia 30308
Attn: J. William Gibson, Esq.
If to a Stockholder, to the address set forth on the signature pages
hereto, or to such other address subsequently provided by such Stockholder to
the Company, and in each case with a copy to:
Powell, Goldstein, Frazier & Murphy LLP
191 Peachtree Street, Suite 1600
Atlanta, Georgia 30303
ATTN: Kathryn L. Knudson, Esq.
3.2. Entire Agreement.
----------------
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, representations, warranties,
statements, promises, and understandings, whether written or oral, with respect
to the subject matter thereof, and cannot be changed or terminated orally. No
party hereto shall be bound by or charged with any written or oral agreements,
representations, warranties, statements, promises, or understandings not
specifically set forth in this Agreement.
10
<PAGE>
3.3. Headings; Certain Terms.
-----------------------
The section and other headings contained in this Agreement are for
reference purposes only and shall not be deemed to be part of this Agreement or
to affect the meaning or interpretation of this Agreement.
3.4. Governing Law.
-------------
All questions concerning the construction, validity and interpretation
of this Agreement and the schedule hereto will be governed by the law of the
State of Georgia.
3.5. Severability.
------------
If any term or provision of this Agreement shall to any extent be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. Upon the determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties shall negotiate in good faith to modify this Agreement so as to
effect their original intent as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
3.6. Termination of Agreement.
------------------------
This Agreement shall terminate on the earlier of: (i) the time when all
the Registrable Securities covered by such registration statement have been sold
by the Holders or the date as of which each Holder is entitled to sell all
remaining Registrable Securities held by such Holder, without limitation as to
volume, pursuant to Rule 144 under the 1933 Act.
3.7. Amendment and Waivers.
---------------------
Except as otherwise provided herein, the provisions of this Agreement
may be amended or waived only upon the prior written consent of the Company and
the Holders of at least 51% of the Registrable Securities outstanding at the
time.
3.8. Section References.
------------------
All references contained in this Agreement to any section number are
references to sections of this Agreement unless otherwise specifically stated.
3.9. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which, when executed, shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
11
<PAGE>
3.10. Binding Effect.
--------------
This Agreement shall be binding on all successors and assigns of the
Company, whether by merger, reorganization, sale of assets or otherwise.
[THE NEXT FOLLOWING PAGES ARE THE SIGNATURE PAGES]
12
<PAGE>
IN WITNESS WHEREOF, the parties have signed this Agreement, or have
caused this Agreement to be signed on their behalf by an officer or
representative thereunder duly authorized, on the respective dates stated below.
EQUIFAX INC.
By: /s/ David A. Post
------------------------------------
Name: David A. Post
Title: Corporate Vice President and
Chief Financial Officer
STOCKHOLDERS:
/s/ David L. Peterson
---------------------------------------
David L. Peterson
B.G. WETHERINGTON FARMS, L.P.
By:/s/ Bobby G. Wetherington
-----------------------------------
Name: Bobby G. Wetherington
Title: General Partner
B. WETHERINGTON:
/s/ Bobby G. Wetherington
--------------------------------------
Bobby G. Wetherington
13
