Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(1) Underwriting Agreement
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONAL DATA CORPORATION
-------------------------
Registrant
By: /s/ E. Michael Ingram
________________________
E. Michael Ingram
General Counsel and Secretary
Dated: June 13, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS FILED TO CURRENT REPORT
ON FORM 8-K
DATED JUNE 12, 1995
NATIONAL DATA CORPORATION
INDEX TO EXHIBITS
Exhibit
1 Underwriting Agreement
<PAGE>
NATIONAL DATA CORPORATION
COMMON STOCK
(PAR VALUE $.125 PER SHARE)
------------------------
AGREEMENT AMONG UNDERWRITERS
INCLUDING
UNDERWRITING AGREEMENT
JUNE 12, 1995
<PAGE>
<TABLE>
<S> <C>
GOLDMAN, SACHS & CO. SALOMON BROTHERS INC
85 BROAD STREET 7 WORLD TRADE CENTER
NEW YORK, NY 10004 NEW YORK, NY 10048
</TABLE>
NATIONAL DATA CORPORATION
COMMON STOCK
(PAR VALUE $.125 PER SHARE)
---------------------
AGREEMENT AMONG UNDERWRITERS
June 12, 1995
To each of the Underwriters named
in Schedule I to the attached
Underwriting Agreement
Ladies and Gentlemen:
This is to confirm that the Underwriters agree among themselves
as follows with reference to their proposed purchases severally of an
aggregate of 2,750,000 shares (the "Firm Shares") and up to an
aggregate of 412,500 additional shares (the "Optional Shares") of
Common Stock, par value $.125 per share ("Stock"), of National Data
Corporation (the "Company") (the Firm Shares and any Optional Shares
that the Underwriters elect to purchase pursuant to the Underwriting
Agreement (as hereinafter defined) being collectively referred to
as the "Shares").
1. Each Underwriter agrees that it will purchase, on the terms
and subject to the conditions of an underwriting agreement in
substantially the form attached hereto (the "Underwriting
Agreement"), the number of Shares provided therein to be
purchased by it (such number of Shares, including any Shares
to be so purchased by such Underwriter pursuant to Section 9
of the Underwriting Agreement, being herein referred to as
the "underwriting obligation" of such Underwriter). Each
Underwriter authorizes us as its representatives to execute
and deliver the Underwriting Agreement in substantially the
form attached hereto and to exercise in our discretion all of
the authority vested in us therein. We are also authorized to
take all action that we may believe desirable in carrying out
the provisions of the Underwriting Agreement and this
Agreement, including authority to agree to changes in those
who are to be Underwriters and, subject to the following
paragraph, in the number of Firm Shares and Optional Shares
to be set forth opposite the name of such Underwriter in
Schedule I to the Underwriting Agreement, and to agree to any
variation in the terms of performance of the Underwriting
Agreement and this Agreement which, in our judgment, will not
have a material adverse effect upon the interests of the
Underwriters.
Notwithstanding the provisions of the preceding paragraph, the
consent of an Underwriter shall be required for any increase in the
number of Shares to be purchased by such Underwriter under the
Underwriting Agreement, except in the following cases: (a) an
increase in the number of Shares to be purchased by such Underwriter
which is caused by the failure of another Underwriter or Underwriters
to perform its or their obligations under the Underwriting Agreement;
or (b) an increase in the number of such Shares, as a result of (i)
an increase in the aggregate number of Shares proposed to be
purchased by the Underwriters as a whole; (ii) a reallotment of
Shares among the Underwriters; or (iii) any other cause, which in any
such case (i) through (iii) results in an aggregate net change of 25%
or less in the number of Shares to be purchased by such Underwriter.
2. The Firm Shares shall be released for sale to the public at
the initial public offering price as soon after the execution
and delivery of the Underwriting Agreement as in our judgment
is advisable, but (except with the consent of such of the
Underwriters whose underwriting obligations aggregate 50% or
more of the Firm Shares under the Underwriting Agreement) not
later than the seventh full business day after the execution
and delivery of the Underwriting Agreement.
<PAGE>
Each Underwriter authorizes us, for its account, to exercise all
or such portion of any overallotment option to purchase Optional
Shares under the Underwriting Agreement as we in our discretion shall
determine.
3. Each Underwriter authorizes us to reserve for sale, and to
sell and deliver to securities dealers selected by us, who
may include any of the Underwriters, such number as we may
determine of the Shares which such Underwriter agrees to
purchase under the Underwriting Agreement. Such sales shall
be made for the respective accounts of the Underwriters in
such proportions as we may determine. Such sales shall be
made at the initial public offering price, less a concession
initially of not in excess of $.60 per share with respect to
the Shares so sold. Underwriters and such dealers may allow a
portion of such concession (the "reallowance") initially of
not in excess of $.10 per share of the Shares so sold to any
member of the National Association of Securities Dealers,
Inc. (the "NASD"), acting as principal or as buyer's agent,
provided such member agrees that the reallowance is to be
retained and not reallowed in whole or in part and also
agrees in writing to comply with Section 24 of Article III of
the Rules of Fair Practice of the NASD. In light of the
restrictions imposed by Section 4 hereof, Underwriters and
such dealers may not allow the reallowance to any foreign
dealer.
Each Underwriter also authorizes us to reserve for sale, and
authorizes us or any Underwriter designated by us to sell and deliver
to such retail purchasers as we may select, at the initial public
offering price, such number as we may determine of the Shares which
such Underwriter agrees to purchase under the Underwriting Agreement.
Such reservations and sales to retail purchasers shall be made for
the respective accounts of the Underwriters in such proportions as we
may determine.
At or before the time the Firm Shares are released for sale to
the public, we will advise each Underwriter as to the number of Firm
Shares initially reserved for sale for its account pursuant to this
Section. Each Underwriter authorizes us from time to time to add to
the reserved Shares any Shares of such Underwriter then remaining
unsold and to release to it any reserved Shares of such Underwriter
then remaining unsold.
Each Underwriter authorizes us, on its behalf and as its
representatives, to take all such actions as we may deem advisable in
respect of all matters pertaining to sales of reserved Shares to
dealers and to retail purchasers, including the right to make
variations in the selling arrangements, and, after the Firm Shares
are released for sale to the public, to vary from time to time the
offering price, concessions and reallowances to dealers, and other
terms of sale of the Shares hereunder and under such selling
arrangements.
4. Sales of Shares by Underwriters, except as otherwise set
forth herein, shall be on the terms specified under the
selling arrangements then in effect.
Each Underwriter represents that in connection with the offering
it has complied, and agrees that it will comply, with the provisions
of Rule 10b-6 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), with regard, among other things, to trading by
underwriters.
5. Except as provided in the next sentence, we may, in our
discretion, charge the account of any Underwriter with an
amount equal to the concession allowed to dealers in respect
of each Share sold by such Underwriter or sold by us for such
Underwriter (and each Share which we believe has been
substituted therefor), which may be delivered against a
purchase contract made by us for the account of any
Underwriter prior to the later of (a) the termination of all
of the provisions referred to in Section 10 hereof or (b) the
covering by Goldman, Sachs & Co. of any short position
created by Goldman, Sachs & Co. for the account of any
Underwriter pursuant to Section 9 hereof, or in lieu of such
charge, require such Underwriter to repurchase on demand at
the total cost thereof (including commissions), plus transfer
taxes, any such Share so delivered. In the case of any such
Share sold by us, the amount of such charge may not exceed
the amount of any selling concession that such Underwriter is
designated to receive with respect to such Share.
6. Upon our request each Underwriter will deliver to Goldman,
Sachs & Co. payment for the Shares purchased or to be
purchased by such Underwriter under the Underwriting
Agreement in an amount equal to the initial public offering
price for such Shares less the concession to dealers. Such
payment shall be made in such form and at such times and
places as may be specified in such request, and each
Underwriter authorizes Goldman, Sachs & Co. to make payment
for such Shares against their delivery for its account
hereunder.
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<PAGE>
7. We shall remit to each Underwriter, as promptly as
practicable, the amounts received by us from retail
purchasers and dealers as payment in respect of Shares sold
by us for the account of such Underwriter pursuant to the
provisions of Section 3 hereof for which payment has been
received, less the concession to dealers (a) in the case of
amounts received from retail purchasers and (b) in the case
where amounts received from dealers are equal to the initial
public offering price. Shares purchased by each Underwriter
under the Underwriting Agreement and not reserved or sold by
us for its account pursuant to the provisions of Section 3
hereof shall be delivered to such Underwriter as promptly as
practicable after their receipt by us. Any Shares so
purchased by any Underwriter and so reserved which remain
unsold at any time prior to the settlement of accounts
hereunder may, in our discretion, and shall, upon the request
of such Underwriter, be delivered to such Underwriter, but,
until the termination of all of the provisions referred to in
Section 10 hereof, for carrying purposes only.
Each Underwriter which is a member of The Depository Trust
Company authorizes us, in our discretion, to arrange for delivery of
Shares to such Underwriter and for payment therefor by and to such
Underwriter through the facilities of The Depository Trust Company.
Each Underwriter, however, authorizes Goldman, Sachs & Co., in
their discretion, as agent for such Underwriter, to advance funds,
charging current interest rates, or arrange loans for such
Underwriter's account in connection with the purchase or carrying of
its Shares held for its account under this Agreement and for any
other of the purposes of this Agreement, to execute and deliver any
notes or other instruments evidencing such advances or loans, to
hold or pledge as security therefor any or all of its Shares and to
give all instructions to the lenders with respect to any such loans
and the proceeds thereof, which instructions the lenders are hereby
authorized to accept. In the event of any such advance or loan,
repayment thereof shall, in the discretion of Goldman, Sachs & Co.,
be effected prior to the making of any remittance or delivery
pursuant to this Section 7.
Each Underwriter agrees that, from time to time prior to the
settlement of accounts hereunder, it will furnish to us such
information as we may request in order to determine the number of
Shares purchased by it under the Underwriting Agreement which then
remains unsold, and such Underwriter will upon our request sell to us
for the account of any Underwriter as many of such unsold Shares as
we may designate at the public offering price, less all or any part
of the concession to dealers as we may determine.
8. In the event of failure of any Underwriter to tender payment
for Shares as provided under the Underwriting Agreement, we
shall have the right under the provisions thereof to arrange
for other persons, who may include ourselves and any other
Underwriters, to purchase the Shares which such defaulting
Underwriter agreed to purchase, and we shall also have the
right, subject to Section 1 hereof, to increase pro rata the
original underwriting obligations of the non-defaulting
Underwriters to provide for the purchase of the Shares which
such defaulting Underwriter agreed to purchase, but in
neither case will such arrangements relieve such defaulting
Underwriter from liability for its default.
9. Each Underwriter authorizes Goldman, Sachs & Co., in their
discretion and for the account of such Underwriter, to
overallot Firm Shares, and to purchase and sell shares of
Stock, for long or short account, in such amounts, at such
prices and times, on such terms and in such manner as
Goldman, Sachs & Co. may determine; provided, however, that
at no time (except as set forth below in the event of default
of any Underwriter in carrying out its commitment under this
Section 9) shall (i) the net commitment of any Underwriter,
for either long or short account, resulting from such
overallotments, (ii) such purchases and sales pursuant to
this Section 9 and (iii) purchases and sales under Section 1
of the Agreement between Syndicates, exceed 20% of the number
of Firm Shares which such Underwriter agrees to purchase
under the Underwriting Agreement (it being agreed that for
the purposes of such calculation the net commitment for
short account of any Underwriter shall be deemed to be
reduced by the maximum number of Optional Shares which such
Underwriter is entitled to purchase under the Underwriting
Agreement). It is understood that the representatives may
have made purchases of securities of the Company for
stabilizing purposes prior to the time this Agreement became
binding upon the Underwriters or any particular Underwriter
with respect to the offering of the Shares, and each
Underwriter agrees that any securities so purchased shall be
treated as having been purchased for the respective accounts
of the Underwriters pursuant to the foregoing authorization.
Each
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<PAGE>
Underwriter authorizes Goldman, Sachs & Co., in their discretion and
for the account of such Underwriter, to cover any short position, or
sell any long position, created by Goldman, Sachs & Co. for the
account of such Underwriter pursuant to this Section 9, in such
amounts, at such prices, on such terms and in such manner as Goldman,
Sachs & Co. may determine. Such purchases and sales, through
overallotments or otherwise, shall be for the respective accounts of
the Underwriters in the same proportions, as nearly as may be
practicable, as the respective underwriting obligations of the
Underwriters; provided, however, that, if any Underwriter defaults in
carrying out its commitment under this Section, the other
Underwriters not so defaulting shall assume its commitment in
the same proportions as the respective underwriting obligations of
such other Underwriters, without, however, relieving such defaulting
Underwriter from its liability therefor. Each Underwriter agrees that
it will, upon the request of Goldman, Sachs & Co., take up at cost
(but, in the discretion of Goldman, Sachs & Co., until the
termination of all of the provisions referred to in Section 10
hereof, for carrying purposes only) shares of Stock so purchased by
Goldman, Sachs & Co. for the account of such Underwriter, and deliver
to Goldman, Sachs & Co. shares of Stock so sold for the account of
such Underwriter, through overallotment or otherwise. Goldman, Sachs
& Co. shall have full discretionary power to pay such commissions in
connection with such purchases and sales as they may deem proper and
to charge such commissions on purchases and sales effected by them.
In the event that Goldman, Sachs & Co. effect any stabilizing
purchases pursuant to this Section, they will notify each Underwriter
promptly of the date and time when the first stabilizing purchase is
effected and the date and time when stabilizing is terminated. Each
Underwriter agrees that, without the prior permission of Goldman,
Sachs & Co., it will not effect any stabilizing purchases. Each
Underwriter agrees that, if stabilizing is effected, it will
provide Goldman, Sachs & Co. with such information and reports as are
required in relation to such stabilization pursuant to the rules and
regulations of the Securities and Exchange Commission (the
"Commission") under the Exchange Act.
10. The provisions of the first paragraph of Section 4 hereof
and of the first sentence of Section 9 hereof will terminate
at the close of business on the thirtieth full business day
after the Firm Shares are released by us for sale to the
public, unless any of such provisions are terminated at
such earlier time as we may determine by notice to that
effect sent to each Underwriter.
11. We may charge against the account of each Underwriter any
and all expenses incurred by us on its behalf and as its
representatives in connection with the purchase and sale of
the Shares or preparations therefor. All expenses of a
general nature incurred by us shall be borne by the
Underwriters in the same proportions as the respective
underwriting obligations of the Underwriters. In the event
of the failure of any Underwriter to fulfill its obligations
hereunder, the expenses chargeable to such Underwriter
pursuant to this Agreement and not paid, as well as any
additional expenses arising from such default, may be
charged against the other Underwriters not so defaulting in
the same proportions as the respective underwriting
obligations of such other Underwriters, without, however,
relieving such defaulting Underwriter from its liability
therefor. Our ascertainment of all expenses and
apportionment thereof shall be conclusive.
We shall not be accountable for interest on funds of any of the
Underwriters at any time in our hands, and any such funds may be held
by us unsegregated from our general funds.
12. As compensation for our services to each of the Underwriters
in connection herewith, each Underwriter agrees to pay us an
amount equal to $.21 per share in respect of the
underwriting obligation of such Underwriter and authorizes
us, at our election, to charge its account therefor.
13. Each of the Underwriters acknowledges that it has received
copies of the documents stated in Section 1(a) of the
Underwriting Agreement to have been filed with the
Commission prior to the date of the Underwriting Agreement
and delivered to us for it. The registration statement and
prospectus may be further amended or changed, but no such
amendment or change not disapproved by us shall release any
Underwriter hereunder or under the Underwriting Agreement.
14. Each Underwriter represents that it is a registered dealer
or broker under the Exchange Act and that it is a member in
good standing of the NASD and that in making sales of Shares
it will comply with the Rules of Fair Practice of the NASD,
including Section 24 of Article III thereof. We will file
on behalf of the several
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Underwriters with the NASD such required documents and information,
if any, which have been furnished to us for filing pursuant to
applicable rules, statements and interpretations of the NASD.
15. In taking all actions hereunder, except in the performance
of our own obligations hereunder and under the Underwriting
Agreement, we shall act only as representatives of each of
the Underwriters. Our authority as representatives hereunder
and under the Underwriting Agreement may be exercised by us
jointly or by Goldman, Sachs & Co. on behalf of us as
representatives, provided that our authority under Section
17 hereof may be exercised only by Goldman, Sachs & Co.
Nothing contained herein shall constitute the Underwriters
partners or render any of them liable to make payments
otherwise than as herein provided. If for Federal income tax
purposes the Underwriters should be deemed to constitute a
partnership, then each Underwriter elects to be excluded
from the application of Subchapter K, Chapter 1, Subtitle A,
of the Internal Revenue Code, as amended.
Each Underwriter authorizes Goldman, Sachs & Co., in their
discretion, on behalf of such Underwriter, to execute such evidence
of such election as may be required by the Internal Revenue Service.
16. We shall be under no liability (except for our own want of
good faith and for obligations expressly assumed by us
hereunder) for or in respect of the validity or value of, or
title to, any shares of Stock; the form of, or the
statements contained in or omitted from, or the validity of,
the registration statement, any preliminary prospectus, the
prospectus, any amendment or supplement thereto, any
document which may be incorporated by reference therein
or any letters or instruments executed by or on behalf of
the Company or others; the form or validity of the
Underwriting Agreement or this Agreement; the delivery of
the Shares; the performance by the Company or others of
any agreement on its or their part; the qualification for
sale of the Shares under the laws of any jurisdiction; or
any matter in connection with any of the foregoing;
provided, however, that nothing in this Section 16 shall
be deemed to relieve us from any liability imposed by the
Securities Act of 1933, as amended (the "Act").
17. (a) Each Underwriter agrees to indemnify, hold harmless and
reimburse each other Underwriter, and each person, if any,
who controls such other Underwriter within the meaning of
Section 15 of the Act, to the extent, and upon the terms,
that such Underwriter agrees to indemnify, hold harmless
and reimburse the Company and certain other persons pursuant
to the provisions of Section 8 of the Underwriting
Agreement. This indemnity agreement shall remain in full
force and effect regardless of any investigation made by or
on behalf of such other Underwriter or controlling person or
any statement made to the Commission as to the results
thereof.
(b) Each Underwriter agrees to pay upon our request, as
contribution, its proportionate share, based upon the
respective underwriting obligations of the Underwriters, of
any losses, claims, damages or liabilities, joint or
several, under the Act or otherwise, paid or incurred by any
Underwriter (including us, individually or as
representatives of the Underwriters) to any person other
than an Underwriter (including amounts paid by an
Underwriter as contribution), arising out of or based upon
(i) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement, any
preliminary prospectus, the prospectus, any amendment or
supplement thereto, any document which may be incorporated
by reference therein or any other selling or advertising
material used with the consent of Goldman, Sachs & Co. by
the Underwriters in connection with the sale of the Shares,
or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, and (ii) any act or omission to act or any
alleged act or omission to act by us, individually or as
representatives of the Underwriters, or by the Underwriters,
as a group but not individually, in connection with any
transaction contemplated by this Agreement or undertaken in
preparing for the purchase, sale and delivery of the Shares;
and each Underwriter will pay such proportionate share of
any legal or other expenses reasonably incurred by us or
with our consent, in connection with investigating or
defending any such loss, claim, damage or liability, or any
action in respect thereof. In determining the amount of any
Underwriter's obligation under this paragraph, appropriate
adjustment may be made by us to reflect any amounts received
by any one or more Underwriters, pursuant to Section 8 of
the Underwriting Agreement or otherwise, in respect of the
claim upon which such obligation is based. In respect of any
claim there shall be credited against the amount of any
Underwriter's obligation under this paragraph any loss,
damage, liability or expense which is paid or incurred by
such Underwriter as a result of any such claim being
asserted against it,
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and, if such loss, damage, liability or expense is paid or incurred
by such Underwriter subsequent to any payment by it pursuant to this
paragraph, appropriate provision shall be made to effect such credit,
by refund or otherwise. If any claim to which the provisions of this
paragraph would be applicable is asserted, we may take such action in
connection therewith as we deem necessary or desirable, including
retention of counsel for the Underwriters, and in our discretion
separate counsel for any particular Underwriter or group of
Underwriters, and the fees and disbursements of any counsel so
retained by us shall be included in the amounts of the Underwriters'
obligations under this paragraph. At our discretion, we may consent
to being named as the representatives of a defendant class of
underwriters. Any Underwriter may elect to retain at its own expense
its own counsel and, on advice of such counsel and with our consent,
may settle or consent to the settlement of any such claim. We may
settle or consent to the settlement of any such claim, on advice of
counsel retained by us, with the approval of a majority in interest
of the Underwriters. Whenever any Underwriter receives notice of the
assertion of any claim to which the provisions of this paragraph
would be applicable, such Underwriter will give prompt notice thereof
to us. Whenever we receive notice of the assertion of any such
claim, we will give prompt notice thereof to each Underwriter. We
also will furnish each Underwriter with periodic reports, at such
times as we deem appropriate, as to the status of any such
claim and the action taken by us in connection therewith. In the
event of the failure of any Underwriter to fulfill its obligations
under this paragraph, such obligations may be charged against the
other Underwriters not so defaulting in the same proportions as the
respective underwriting obligations of such other Underwriters,
without, however, relieving such defaulting Underwriter from its
liability therefor. In determining amounts payable pursuant to this
paragraph, any loss, claim, damage, liability or expense paid or
incurred, and any amount received, by any person controlling any
Underwriter within the meaning of Section 15 of the Act which has
been paid or incurred or received by reason of such control
relationship shall be deemed to have been paid or incurred or
received by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
18. As promptly as may be practicable after termination of all
of the provisions referred to in Section 10 hereof and
completion of transactions under Section 9 hereof, any
shares of Stock held by us for the account of any
Underwriter shall be delivered by us to such Underwriter,
and the net credit or debit balance of each Underwriter
shall be paid to it or collected from it by us, but we may
establish such reserves as we may deem advisable against any
expenses or claims not then ascertained. If at such
termination the aggregate number of shares of Stock so held
by us does not exceed 20% of the aggregate underwriting
obligation of the Underwriters, we may in our discretion
sell such securities for the accounts of the several
Underwriters at such prices and times, on such terms and in
such manner as we may determine. Any Shares which are held
by us for the account of any Underwriter by reason of a
default by a dealer or other purchaser in respect of the
purchase thereof pursuant to a sale under Section 3 hereof
shall, in our discretion, be purchased from time to time
by the Underwriters in the same proportions, as nearly as
may be practicable, as the respective numbers of Shares
theretofore contracted for sale thereunder to dealers or
other purchasers, as the case may be, for the respective
accounts of the Underwriters, at the net price at which such
Shares were contracted for sale to such dealer or other
purchaser, and we are authorized to make appropriate charges
and credits to the respective accounts of the Underwriters
for this purpose. Notwithstanding any distribution and
settlement of accounts hereunder, each Underwriter shall
remain liable for its proper proportion of any transfer
tax or any other liability which may be asserted against us
or any one or more of the Underwriters in respect of this
Agreement or the Underwriting Agreement based upon the claim
that the Underwriters constitute a partnership, an
association, an unincorporated business or other separate
entity.
19. Any notice to any Underwriter shall be deemed to have been
duly given if mailed, sent by telex or facsimile
transmission or delivered in person to such Underwriter at
the address set forth in its Underwriters' Questionnaire or
telex constituting such Questionnaire. Any such notice shall
take effect upon receipt thereof.
20. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
21. This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
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Please confirm that the foregoing is in accordance with your
understanding by signing a counterpart hereof as indicated below.
Very truly yours,
Goldman, Sachs & Co.
Salomon Brothers Inc
By: /s/ Goldman, Sachs & Co.
---------------------------------
(Goldman, Sachs & Co.)
Confirmed as of the date hereof:
/s/
- ---------------------------------
Attorney-in-fact for each of
the several Underwriters named
in Schedule I to the attached
Underwriting Agreement
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NATIONAL DATA CORPORATION
COMMON STOCK
(PAR VALUE $.125 PER SHARE)
UNDERWRITING AGREEMENT
June 12, 1995
Goldman, Sachs & Co.,
Salomon Brothers Inc
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
National Data Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 2,750,000 shares and, at the election of the Underwriters, up to 412,500
additional shares of Common Stock par value $.125 per share ("Stock") of the
Company. The aggregate of 2,750,000 shares to be sold by the Company is herein
called the "Firm Shares" and the aggregate of 412,500 additional shares to be
sold by the Company is herein called the "Optional Shares". The Firm Shares and
the Optional Shares that the Underwriters elect to purchase pursuant to Section
2 hereof are herein collectively called the "Shares".
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-59377) in
respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the best knowledge of
the Company, threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"), is hereinafter
called a "Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the
registration statement at the time it was declared effective and (ii) the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under
<PAGE>
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Goldman, Sachs & Co. expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, that is material to the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries, considered on a consolidated basis, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
material personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to
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be made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries;
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and each
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Prospectus; and, with respect to each subsidiary of the Company other than
Yes Check Services, Inc., all of the issued shares of capital stock of each
such subsidiary and, with respect to Yes Check Services, Inc., all of the
shares of capital stock of Yes Check Services, Inc. beneficially owned by
the Company, have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(i) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Prospectus;
(j) The issue and sale of the Shares to be sold by the Company and the
compliance by the Company with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or Bylaws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties; and
no consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act of
the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(k) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or Bylaws or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
material lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound;
(l) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock and insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(m) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of
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its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(n) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(o) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(p) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries and of Mercantile Systems,
Inc., and KPMG Peat Marwick, who have certified certain financial
statements of Yes Check Services, Inc. and Select Check, Inc., in each case
incorporated by reference in the Registration Statement, are, to the best
knowledge of the Company, each independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder;
(q) The unaudited pro forma condensed consolidated financial
statements of the Company and its subsidiaries incorporated by reference in
the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the rules and
regulations promulgated thereunder and management of the Company believes
(i) the assumptions underlying the pro forma adjustments are reasonable,
(ii) that such adjustments have been properly applied to the historical
amounts in the compilation of such statements and (iii) that such
statements fairly present, with respect to the Company and its
subsidiaries, the condensed consolidated pro forma financial position and
results of operations and the other information purported to be shown
therein at the respective dates or for the respective periods therein
specified; and
(r) The Company and its subsidiaries own or have the right to use all
patents, patent applications, trademarks, trademark applications,
tradenames, service marks, copyrights, franchises, trade secrets, software,
proprietary or other confidential information and intangible properties and
assets (collectively, "Intangibles") necessary to their respective
businesses as presently conducted or as the Prospectus indicate the Company
and its subsidiaries propose to conduct, except where the failure to own or
have the right to use would not have a material adverse effect on the
current or future consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries; to the best
knowledge of the Company, none of the Company or its subsidiaries has
infringed or is infringing, and none of the Company or its subsidiaries has
received notice of infringement with respect to, asserted Intangibles of
others; and, to the best knowledge of the Company, there is no infringement
by others of Intangibles of the Company and its subsidiaries.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price per
share of $20.23, the number of Firm Shares as set forth opposite the name of
such Underwriter in Schedule I hereto and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the purchase price per share set forth in clause (a) of this Section
2, that portion of the number of Optional Shares as to which such election shall
have been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 412,500 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may
4
<PAGE>
be exercised on one occasion only by written notice from you to the Company
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Goldman, Sachs & Co., through the facilities of the Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by certified or official bank
check or checks, payable to the order of the Company in New York Clearing House
(next day) funds. The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be, with respect to the Firm
Shares, 9:30 a.m., New York time, on June 16, 1995 or such other time and date
as Goldman, Sachs & Co. and may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York time, on the date specified by Goldman,
Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Goldman, Sachs & Co. and the Company may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the "First Time
of Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(j) hereof, will be delivered at the offices of King &
Spalding, 191 Peachtree Street, Atlanta, Georgia 30303-1763 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing Location at 1:00
p.m., New York City time, on the New York Business Day next preceding such Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Agreement, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last Time of Delivery which shall be disapproved by
you promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed
5
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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 the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time to
furnish the underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any events shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify
you and upon your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell, pledge or otherwise dispose of, or file a
Registration Statement under the Act with respect to, except as provided
hereunder, any Stock or any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent
the right to receive, Stock or any such substantially similar securities
(other than (i) pursuant to stock option, restricted stock, retirement and
stock purchase plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement or (ii) in payment in whole or in part of the purchase price in
connection with the acquisition of all or a portion of the outstanding
capital stock or assets of another person or entity provided the Company
shall have obtained and delivered to the Underwriters an executed written
agreement of such transferee of any such securities in form and substance
satisfactory to you to be bound by the transfer restrictions set forth in
this Section 5(e)), without your prior written consent;
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(f) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request, provided that to the extent any such information
is non-public, you agree to keep such information confidential until such
time as such information is in the public domain (such financial statements
to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds"; and
(i) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange (the "Exchange").
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (a) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (b) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (c) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (d) all fees and expenses in connection
with listing the Shares on the Exchange; (e) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (f) the cost of preparing stock
certificates; (g) the cost and charges of any transfer agent or registrar; and
(h) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its and their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or, to the best knowledge of the
Company, threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
your reasonable satisfaction;
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(b) King & Spalding, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to certain matters covered in paragraphs (i), (ii), (iv) (vii)
and (x) of subsection (c) below as well as such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Alston & Bird, counsel for the Company, shall have furnished to
you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and the Shares being delivered at such Time of Delivery
have been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform in all material respects to the
description of the Stock contained in the Prospectus;
(iii) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The issue and sale of the Shares being delivered at such Time
of Delivery and the compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement or any
document incorporated by reference therein or any other material
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or Bylaws of the Company or any statute or any order, rule
or regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(vii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock and insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(viii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
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(ix) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules included or incorporated therein, as to which such counsel
need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents were so filed, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(x) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules included or incorporated therein, as to which such counsel
need express no opinion) comply as to form in all material respects with
the requirements of the Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion
in subsection (vii) of this Section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
included or incorporated therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules included or incorporated therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules included or incorporated therein, as to
which such counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required;
(d) E. Michael Ingram, General Counsel and Secretary of the Company,
shall have furnished to you his written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject
to no material liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local counsel
and in
9
<PAGE>
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you
and they are justified in relying upon such opinions and certificates);
(iv) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation; and with respect to each Subsidiary
of the Company other than Yes Check Services, Inc., all of the issued
shares of capital stock of each such subsidiary and, with respect to Yes
Check Services, Inc., all of the shares of capital stock of Yes Check
Services, Inc. beneficially owned by the Company, have been duly and
validly authorized and issued, are fully paid and non-assessable, and
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of officers
of the Company or its subsidiaries, provided that such counsel shall
state that they believe that both you and they are justified in relying
upon such opinions and certificates);
(v) The Company and its subsidiaries have good and marketable title
in fee simple to all real property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and its
subsidiaries (in giving the opinion in this clause, such counsel may
state that no examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a general review
of the titles of the Company and its subsidiaries, upon opinions of
local counsel and abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of acquisition of such
property by the Company or its subsidiaries, upon opinions of counsel to
the lessors of such property and, in respect of matters of fact, upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions, abstracts, reports,
policies and certificates);
(vi) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries; and, to
the best of such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(vii) The issue and sale of the Shares being delivered at such Time
of Delivery and the compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement or any
document incorporated by reference therein or any other material
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or Bylaws of the Company or any statute or any order, rule
or regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties; and
(viii) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or Bylaws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, or lease
10
<PAGE>
or agreement or other instrument to which it is a party or by which it
or any of its properties may be bound except for any such violation or
default that would not have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries;
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, Arthur
Andersen LLP and KPMG Peat Marwick shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I and Annex
II hereto, respectively;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in Clause (i)
or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(h) The Shares at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the Exchange;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each executive officer and director of
the Company substantially to the effect set forth in Section 5(e) hereof in
form and substance satisfactory to you;
(j) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have furnished
or caused to be furnished certificates as to the matters set forth in
subsections (a) and (f) of this Section; and
(k) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or
11
<PAGE>
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party
12
<PAGE>
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notify you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting
13
<PAGE>
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason any Shares are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company by you on request.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters and the Company and, to the extent provided in Sections 8
and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14
<PAGE>
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
NATIONAL DATA CORPORATION
By: /s/ Robert A. Yellowlees
------------------------------------
Name: Robert A. Yellowlees
Title: Chairman of the Board
Accepted as of the date hereof:
GOLDMAN SACHS & CO.
SALOMON BROTHERS INC
By: /s/ Goldman, Sachs & Co.
-----------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the
Underwriters
15
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
OPTIONAL SHARES
NUMBER OF FIRM TO BE PURCHASED
SHARES TO BE IF MAXIMUM
UNDERWRITER PURCHASED OPTION EXERCISED
- --------------------------------------------------------------- --------------- ----------------
<S> <C> <C>
Goldman, Sachs & Co............................................ 879,000 131,850
Salomon Brothers Inc........................................... 879,000 131,850
Bear, Stearns & Co. Inc........................................ 76,000 11,400
Brean Murray, Foster Securities Inc............................ 48,00 7,200
Alex. Brown & Sons Incorporated................................ 76,000 11,400
Cowen & Company................................................ 48,000 7,200
A.G. Edwards & Sons, Inc....................................... 76,000 11,400
First Manhattan Co............................................. 48,000 7,200
Hambrecht & Quist LLC.......................................... 76,000 11,400
Interstate/Johnson Lane Corporation............................ 48,000 7,200
Lazard Freres & Co. LLC........................................ 76,000 11,400
Merrill Lynch, Pierce, Fenner & Smith Incorporated............. 76,000 11,400
Montgomery Securities.......................................... 76,000 11,400
Piper Jaffray Inc.............................................. 48,000 7,200
The Robinson-Humphrey Company, Inc............................. 48,000 7,200
Smith Barney Inc............................................... 76,000 11,400
Stephens Inc................................................... 48,000 7,200
Wm Smith Securities Incorporated............................... 48,000 7,200
Total................................................ 2,750,000 412,500
=========== ============
</TABLE>
16
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ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, Arthur Andersen LLP
shall furnish letters to the Underwriters with respect to the Company and its
subsidiaries to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Company's
Quarterly Reports on Form 10-Q for the quarters ended August 31, 1994,
November 30, 1994 and February 28, 1995 incorporated by reference into the
Prospectus and, on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Company's Quarterly Reports on Form 10-Q for the
quarters ended August 31, 1994, November 30, 1994 and February 28, 1995
incorporated by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules
and regulations, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Company's Quarterly Reports on Form 10-Q for the quarters
<PAGE>
ended August 31, 1994, November 30, 1994 and February 28, 1995
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and items were
not determined on a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(D) the unaudited pro forma condensed consolidated financial
statements included in the Company's Current Report on Form 8-K dated
November 17, 1994 incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders equity or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination referred to in their report
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
2
<PAGE>
Pursuant to Section 7(d) of the Underwriting Agreement, Arthur Andersen LLP
shall furnish letters to the Underwriters with respect to Mercantile Systems,
Inc. ("Mercantile") to the effect that:
(i) They are independent certified public accountants with respect to
Mercantile within the meaning of the Act and the applicable published rules
and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and incorporated by
reference in the Registration Statement or the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules and
regulations thereunder;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
combined statements of operations and cash flows in the Company's Current
Report on Form 8-K dated November 17, 1994 incorporated by reference into
the Prospectus and, on the basis of specified procedures including
inquiries of officials of Mercantile who have responsibility for financial
and accounting matters regarding whether the unaudited financial statements
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited combined financial statements (A) do not comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations or (B) any material modifications should be made to
the unaudited combined financial statements for them to be in conformity
with generally accepted accounting principles.
3
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, Peat Marwick shall
furnish letters to the Underwriters with respect to Yes Check Services, Inc. and
Select Check, Inc. (the "Acquired Companies") to the effect that:
(i) They are independent certified public accountants with respect to
the Acquired Companies within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and incorporated by
reference in the Registration Statement or the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
combined balance sheet of each of the Acquired Companies at May 31, 1994
included in the Company's Current Report on Form 8-K dated November 17,
1994 incorporated by reference into the Prospectus and on the basis of
specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited combined balance sheet complies as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited combined
balance sheet (A) does not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations or (B) any material
modifications should be made to the unaudited combined balance sheet for it
to be in conformity with general accepted accounting principles.
