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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event) November 23, 1998
ASSOCIATES FIRST CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-0876639
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
2-44197
(Commission File Number)
250 E. Carpenter Freeway, Irving, Texas 75062-2729
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (972) 652-4000
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Item 7. Financial Statements and Exhibits.
(c) Exhibits.
The following exhibit 1.2 replaces the previously filed exhibit 1.2
Form of Underwriting Agreement for equity securities in connection with
Registration Statement No. 333-62875 on Form S-3.
1.2 - Form of 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.
ASSOCIATES FIRST CAPITAL CORPORATION
By: /s/ Frederic C. Liskow
-------------------
Frederic C. Liskow
Assistant Secretary
Date: November 24, 1998
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ASSOCIATES FIRST CAPITAL CORPORATION
EQUITY SECURITIES
UNDERWRITING AGREEMENT
November 23, 1998
To the Representative or Representatives named
in Schedule A hereto of the Underwriters
named in Schedule B hereto
Ladies and Gentlemen:
The undersigned Associates First Capital Corporation, a
Delaware corporation (the "Company"), confirms its agreement with
the several underwriters named in Schedule B hereto (the
"Underwriters"), as set forth below. If the firm or firms listed
in Schedule B hereto include only the firm or firms listed in
Schedule A hereto (the "Representatives"), then the terms
"Underwriters" and "Representatives", as used herein, shall each be
deemed to refer to such firm or firms.
1. Description of Securities. The Company proposes to issue
and sell preferred stock or common stock of the title and amount
set forth in Schedule A hereto (the "Registered Securities").
Preferred stock will be issued in one or more series, which series
may vary as to voting rights, dividends, redemption provisions,
liquidation preferences, conversion provisions and other terms,
with all such terms for any particular series or issue of preferred
stock being determined at the time of sale. If so indicated in
Schedule A hereto, the Company also proposes to issue certain
securities into which the Securities or Warrant Securities may
convert upon such terms and conditions set forth in Schedule A
hereto (the "Converted Securities"). If so indicated in Schedule
A hereto, the Company also proposes to issue warrants (the "Warrants")
to purchase the aggregate number of shares of common stock, if any,
listed in Schedule A hereto (the "Warrant Securities"). The
Warrants, if any, are to be issued pursuant to the provisions of
the Warrant Agreement listed in Schedule A hereto (the "Warrant
Agreement") between the Company and the Warrant Agent named in
Schedule A hereto (the "Warrant Agent"). If so indicated in
Schedule A hereto, the Company has granted the Underwriters the
option to purchase up to the amount of Registered Securities, if
any, specified in Schedule A hereto (the "Option Securities" and,
together with the Registered Securities, the "Securities").
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each
Underwriter that:
(a) The registration statements on Form S-3 (with the
file numbers set forth in Schedule A hereto), including a
prospectus, relating to the Securities, the Warrants, the
Warrant Securities and the Converted Securities have been
carefully prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, have been filed with the
Commission and have become effective. Such registration
statements and prospectus may have been amended or
supplemented from time to
time prior to the date of this Agreement; any
such amendment or supplement was so prepared and
filed and any such amendment
has become effective. No stop order suspending the
effectiveness of such registration statements or any post-
effective amendment thereto has been issued and no proceeding
for that purpose has been initiated or threatened by the
Commission. A prospectus supplement (the "Prospectus
Supplement") relating to the Securities, the Warrants, if any,
the Warrant Securities, if any, and the Converted
Securities, if any, has
been so prepared and will be filed pursuant to Rule 424 under
the Act. Copies of such registration statements and
prospectus, any such amendment or supplement, the Prospectus
Supplement and all documents incorporated by reference therein
which were filed with the Commission on or prior to the date
of this Agreement have been delivered to you. Such
registration statements (including all exhibits thereto) and
the prospectus included therein, as amended or supplemented to
the date of this Agreement, are herein referred to
collectively as the "Registration Statement"; any preliminary
prospectus included in such registration statements or filed
with the Commission pursuant to Rule 424(a) under the Act is
herein referred to as a "Preliminary Prospectus"; and the
final prospectus relating to the Securities (including the
Prospectus Supplement), in the form first filed pursuant to
Rule 424(b) under the Act, is herein referred to as the
"Prospectus". Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein which
were filed with the Commission on or prior to the date of this
Agreement; any reference herein to any Preliminary Prospectus
shall be deemed to refer to and include the documents
incorporated by reference therein which were filed with the
Commission on or prior to the date of such Preliminary
Prospectus; and any reference to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus and the Prospectus shall
be deemed to refer to and include the filing of any document
with the Commission deemed to be incorporated by reference
therein after the date of this Agreement (with respect to the
Registration Statement and the Prospectus) or after the date
of such Preliminary Prospectus (with respect to any
Preliminary Prospectus).
(b) When each part of the Registration Statement became
effective such part conformed in all material respects to the
requirements of the Act and the Rules and Regulations and did
not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
on the date of this Agreement, upon the effectiveness of any
amendment to the Registration Statement or the filing of any
supplement to the Prospectus and on the Closing Date (as
hereinafter defined), the Registration Statement and
Prospectus and any amendment or supplement thereto will
conform in all material respects to the requirements of the
Act and the Rules and Regulations and will not include 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; except that the
foregoing shall not apply to statements in or omissions from
any such document made in reliance upon, and in conformity
with, written information furnished to the Company by you, or
by any Underwriter through you, specifically for use in the
preparation thereof.
(c) 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, and did not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; except that the
foregoing shall not apply to statements in or omissions from
any such document made in reliance upon, and in conformity
with, written information furnished to the Company by you, or
by any Underwriter through you, specifically for use in the
preparation thereof.
(d) The documents incorporated by reference in the
Registration Statement or Prospectus, when they became
effective or were filed with the Commission, as the case may
be, under the Securities Exchange Act of 1934 (the "Exchange
Act"), conformed, and any documents so filed and incorporated
by reference after the date of this Agreement will, when they
are filed with the Commission, conform, in all material
respects to the requirements of the Act and the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder.
(e) The financial statements of the Company and its
subsidiaries included in the Registration Statement and
Prospectus fairly present the financial condition of the
Company and its subsidiaries as of the dates indicated and the
results of operations and changes in financial position for
the periods therein specified in conformity with generally
accepted accounting principles consistently applied throughout
the periods involved (except as otherwise stated therein).
PricewaterhouseCoopers LLP, which has examined certain of such
financial statements, as set forth in their report included in
the Registration Statement and Prospectus, are independent
public accountants with respect to the Company and its
subsidiaries as required by the Act and the Rules and
Regulations.
(f) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of its
jurisdiction of incorporation; the Company's subsidiaries have
been duly incorporated and are existing corporations in good
standing under the laws of their respective jurisdictions of
incorporation; each of the Company and its subsidiaries has
full power and authority (corporate and other) to conduct its
business as described in the Registration Statement and
Prospectus; each of the Company and its subsidiaries is duly
qualified to do business in each jurisdiction in which it owns
or leases real property or in which the conduct of its
business requires such qualification, except to the extent
that the failure to so qualify would not have a material
adverse effect on the financial condition or results of
operations of the Company and its subsidiaries taken as a
whole; and all of the outstanding shares of capital stock of
each such subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable (except with respect
to 12 U.S.C. Section 55 as it applies to national banks) and the
Company owns all outstanding shares of capital stock of each
"significant subsidiary" (as defined in Rule 405 under the
Act) (except as otherwise stated in the Registration Statement
and the Prospectus) in each such case subject to no security
interest, other encumbrance or adverse claim.
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued and outstanding
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 thereof in the
Prospectus.
(h) The Warrant Agreement, if any, the Securities, the
Warrants, if any, and the Warrant Securities, if any, have
been duly authorized, and the Warrant Agreement, if any,
constitutes, and the Securities, the Warrants, if any, and the
Warrant Securities, if any, when duly executed, issued and
delivered as contemplated hereby, by the Delayed Delivery
Contracts (as hereinafter defined), if any, and by the Warrant
Agreement, if any, will constitute valid and legally binding
obligations of the Company in accordance with their terms
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; the Warrant Securities, if any, have been
duly reserved for issuance upon the exercise of the Warrants,
if any, and, when issued, will be duly and validly issued,
fully-paid and non-assessable; the common stock, if any, and
the preferred stock, if any, described herein, when issued,
will be duly and validly issued, fully-paid and non-
assessable, will conform to the description thereof contained
in the Prospectus, and will not be subject to any preemptive
or similar rights; and, if the Converted Securities, if any,
are shares of the capital stock of the Company, such shares
of Converted Securities have been duly
authorized by the Company, have been duly reserved for
issuance upon conversion of the
Securities and, when issued upon conversion of the Securities,
will be duly and validly issued, fully paid and non-assessable
and will not be subject to any preemptive or similar rights.
(i) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the
Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business,
which are material to the Company and its subsidiaries, taken
as a whole, and there has not been any material adverse
change, on a consolidated basis, in the capital stock, short-
term debt or long-term debt of the Company and its
subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change,
in the condition (financial or other), business, prospects,
net worth or results of operations of the Company and its
subsidiaries taken as a whole.
(j) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened, any
action, suit or proceeding to which the Company or any of its
subsidiaries is a party before or by any court or governmental
agency or body, in which there is a reasonable possibility of
an adverse decision which could result in any material adverse
change in the condition (financial or other), business,
prospects, net worth or results of operations of the Company
and its subsidiaries, taken as a whole, or might materially
and adversely affect the properties or assets thereof; and
there are no contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the Act or by the Rules and
Regulations which have not been so filed or which will not be
so filed prior to the date of any Prospectus Supplement.
(k) The Company and its subsidiaries hold good and
marketable title in fee simple, except as otherwise stated in
the Prospectus, to all of the real property referred to
therein as being owned by them, free and clear of all liens
and encumbrances, except liens and encumbrances referred to in
the Prospectus (or reflected in the financial statements
included therein) and liens and encumbrances which are not
material in the aggregate and do not materially interfere with
the conduct of the business of the Company and its
subsidiaries taken as a whole; and the properties referred to
in the Prospectus as held under lease by the Company or any of
its subsidiaries are held by them under valid and enforceable
leases with such exceptions as do not materially interfere
with the conduct of the business of the Company and its
subsidiaries taken as a whole.
(l) This Agreement has been duly authorized, executed
and delivered by the Company; the performance of this
Agreement and of any Delayed Delivery Contracts and the
consummation of the transactions herein contemplated
(including, without limitation, the issuance of the Securities
and the Warrant Securities, if any, upon the exercise of the
Warrants, if any) will not result in a breach or violation of
any of the terms and provisions of, or constitute a default
under (other than with respect to the Company's charter and
by-laws, in each case material to the Company and its
subsidiaries taken as a whole), any statute, any agreement or
instrument to which the Company or any of its subsidiaries is
a party or by which any of them is bound or to which any of
the property of the Company or any of its subsidiaries is
subject, the Company's charter or by-laws, or any order, rule
or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties;
no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for
the consummation of the transactions contemplated by this
Agreement and any Delayed Delivery Contracts in connection
with the issuance or sale of the Securities, the Warrants, if
any, the Warrant Securities, if any, or the Converted
Securities, if any, by the Company, except (i) such as may be
required under the Act, (ii) the listing of the Securities on
the New York Stock Exchange, if applicable, (iii) such
consents, approvals, authorizations, orders or filings as may
be required under securities, insurance securities or Blue Sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities, the Warrants, if any, the
Warrant Securities, if any, and the Converted Securities, if
any, by the Underwriters, and (iv) such consents, approvals,
authorizations, orders or filings as may be required under
federal or state banking, insurance or other similar laws, all
of which requirements referred to in this clause (iv) have
been obtained; and the Company has full power and authority to
authorize, issue and sell the Securities, the Warrants, if
any, the Warrant Securities, if any, and the Converted
Securities, if any, as contemplated by this Agreement.
(m) Upon issuance, the common stock, if any, of the
Company described herein will be listed on the New York Stock
Exchange.
3. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule A hereto, the
amount of Registered Securities, and the amount of Warrants, if
any, set forth opposite the name of such Underwriter in Schedule B
hereto reduced by such Underwriter's portion of any Contract
Securities, determined as provided below.
If so specified in Schedule A hereto, on the basis of the
representations, warranties and covenants contained herein, but
subject to the terms and conditions herein set forth, the Company
grants an option to the several Underwriters to purchase, severally
and not jointly, up to that amount of the Option Securities as is
specified in Schedule A hereto from the Company at the same price
as the Underwriters shall pay for the Registered Securities. Said
option may be exercised only to cover over-allotments in the sale
of the Registered Securities by the Underwriters and may be
exercised in whole or in part at any time on or before the
thirtieth calendar day after the date hereof upon written or
facsimile notice (an "Option Exercise Notice") by the
Representatives to the Company setting forth the amount of the
Option Securities as to which the several Underwriters are
exercising the option and the date on which the Option Securities
are to be delivered, as determined by you but in no event earlier
than the Closing Date with respect to the Registered Securities or
earlier than two or later than ten business days after the date of
the Option Exercise Notice. The amount of Option Securities to be
purchased by each Underwriter shall be the same percentage of the
total amount of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the
Registered Securities, as adjusted by the Representatives in such
manner as the Representatives deem advisable to avoid fractional
shares/units.
If so authorized in Schedule A hereto, the Underwriters may
solicit offers from investors of the types set forth in the
Prospectus to purchase Securities, and Warrants, if any, from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Such contracts shall be substantially in the form of
Exhibit I hereto but with such changes therein as the Company may
approve. Securities and Warrants, if any, to be purchased pursuant
to Delayed Delivery Contracts are herein called "Contract
Securities". When Delayed Delivery Contracts are authorized in
Schedule A, the Company will enter into a Delayed Delivery Contract
in each case where a sale of Contract Securities arranged through
you has been approved by the Company but, except as the Company may
otherwise agree, such Delayed Delivery Contracts must be for at
least the minimum amount of Contract Securities set forth in
Schedule A hereto, and the aggregate amount of Contract Securities
may not exceed the amount set forth in such Schedule. The Company
will advise you not later than 10:00 A.M., New York City time, on
the third full business day preceding the Closing Date (or at such
later time as you may otherwise agree) of the sales of the Contract
Securities which have been so approved. You and the other
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts.
The amount of Securities, and Warrants, if any, to be
purchased by each Underwriter as set forth in Schedule B hereto
shall be reduced by an amount which shall bear the same proportion
to the total amount of Contract Securities as the amount of
Securities, and Warrants, if any, set forth opposite the name of
such Underwriter bears to the total amount of Securities, and
Warrants, if any, set forth in Schedule B hereto, except to the
extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company; provided,
however, that the total amount of Securities, and Warrants, if
any, to be purchased by all Underwriters shall be the total amount
of Securities, and Warrants, if any, set forth in Schedule B hereto
less the aggregate amount of Contract Securities.
The Securities, and the Warrants, if any, to be purchased by
the Underwriters will be delivered by the Company to you, through
the facilities of The Depository Trust Company, for the accounts of
the several Underwriters at the office specified in Schedule A
hereto against payment of the purchase price therefor by wire or
interbank transfer of immediately available funds to an account
specified by the Company (or, if so specified in Schedule A hereto,
by certified or official bank check or checks in immediately
available funds payable to the order of the Company at the office
specified in Schedule A hereto) on the date and at the time
specified in such Schedule A, or at such other time not later than
eight full business days thereafter as you and the Company
determine, such time being herein referred to as the "Closing
Date". The Option Exercise Notice shall specify a Closing Date for
any Option Securities, which may be different than the Closing Date
for the Registered Securities, in which case references herein to
"Closing Date" shall refer to each such date as the context
requires. Such Securities, and Warrants, if any, will be prepared
in definitive form and in such authorized denominations and
registered in such names as you may require upon at least two
business days' prior notice to the Company and will be made
available for checking and packaging at the office at which they
are to be delivered on the Closing Date (or such other office as
may be specified for that purpose in Schedule A) at least one
business day prior to the Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make
payment to the Company on behalf of any other Underwriter for
Securities, and Warrants, if any, to be purchased by such
Underwriter. Any such payment by you shall not relieve any such
Underwriter of any of its obligations hereunder.
4. Covenants. The Company covenants and agrees with each
Underwriter that:
(a) The Company will cause the Prospectus Supplement to
be filed pursuant to Rule 424 under the Act and will notify
you promptly of such filing. During the period in which a
prospectus relating to the Securities, the Warrants, if any,
the Warrant Securities, if any, and the Converted Securities,
if any, is required to be delivered under the Act, the Company
will notify you promptly of the time when any amendment to the
Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed and of any request
by the Commission for any amendment of or supplement to the
Registration Statement or Prospectus or for additional
information; it will file no amendment or supplement to the
Registration Statement or Prospectus (other than any
prospectus supplement relating to the offering of securities
other than the Securities, the Warrants, if any, the Warrant
Securities, if any, and the Converted Securities, if any,
registered under the Registration Statement or any document
required to be filed under the Exchange Act which upon filing
is deemed to be incorporated by reference therein) to which
you shall reasonably object by prompt written notice to the
Company after having been furnished a copy a reasonable time
prior to the filing; and it will furnish to you a reasonable
time prior to the filing thereof a copy of any such prospectus
supplement or any document which upon filing is deemed to be
incorporated by reference in the Registration Statement or
Prospectus.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness
of the Registration Statement or any order preventing or
suspending the use of any Preliminary Prospectus or prospectus
relating to the Securities, the Warrants, if any, the Warrant
Securities, if any, and the Converted Securities, if any, of
the suspension of the qualification of the Securities, the
Warrants, if any, the Warrant Securities, if any, and the
Converted Securities, if any, for offering or sale in any
jurisdiction, or 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 it will promptly use its best efforts to
prevent the issuance of any stop order or, 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
relating to the Securities, the Warrants, if any, the Warrant
Securities, if any, and the Converted Securities, if any, or
suspending any such qualification, to obtain the withdrawal of
such stop order or other order.
(c) Within the time during which a prospectus relating
to the Securities, the Warrants, if any, the Warrant
Securities, if any, and the Converted Securities, if any, is
required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon
it by the Act, as now and hereafter amended, and by the Rules
and Regulations, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealings in
the Securities, the Warrants, if any, the Warrant Securities,
if any, and the Converted Securities, if any, as contemplated
by the provisions hereof and the Prospectus. If during such
period any event occurs 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 a material fact necessary
to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such
period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Act, the Company
will promptly notify you in writing and will amend or
supplement the Registration Statement or Prospectus (at the
expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will use its best efforts to qualify the
Securities, the Warrants, if any, the Warrant Securities, if
any, and the Converted Securities, if any, for sale under the
securities laws of such jurisdictions as you reasonably
designate and to continue such qualifications in effect so
long as required for the distribution of the Securities, the
Warrants, if any, the Warrant Securities, if any, and the
Converted Securities, if any, except that the Company shall
not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service
of process in any state.
(e) The Company will furnish to the Underwriters copies
of the Registration Statement and Prospectus (including all
documents incorporated by reference therein), and all
amendments and supplements to the Registration Statement or
Prospectus which are filed with the Commission during the
period in which a prospectus relating to the Securities, the
Warrants, if any, the Warrant Securities, if any, and the
Converted Securities, if any, is required to be delivered
under the Act (including all documents filed with the
Commission during such period which are deemed to be
incorporated by reference therein), in each case in such
quantities as you may from time to time reasonably request.
(f) During a period of three years from the date of this
Agreement, the Company agrees to furnish to you as soon as
available, copies of all financial reports to the Company's
security holders generally and all reports and financial
statements filed by or on behalf of the Company with the
Commission and the New York Stock Exchange.
(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not
later than 15 months after the end of the Company's current
fiscal quarter, an earnings statement (which need not be
audited) covering a 12-month period beginning after the date
upon which the Prospectus Supplement is filed pursuant to Rule
424 under the Act which shall satisfy the provisions of
Section 11(a) of the Act.
(h) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is
terminated, will pay all expenses incident to the performance
of its obligations hereunder, will pay the expenses of
printing all documents relating to the offering, and will
reimburse the Underwriters for any expenses (including fees
and disbursements of counsel) incurred by them in connection
with the matters referred to in Section 4(d) hereof and the
preparation of memoranda relating thereto, for any filing fees
incident to, and fees and disbursements of counsel for the
Underwriters in connection with, securing any required review
by the National Association of Securities Dealers, Inc.
relating to the Securities, the Warrants, if any, and the
Warrant Securities, if any, for any fees and expenses in
connection with listing the Securities on the New York Stock
Exchange, and for any fees charged by investment rating
agencies for rating the Securities, and the Warrant
Securities, if any. It is understood, however, that, except
as provided in this Section and in Section 6, 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 Securities or Warrants, if any, by them and any
advertising expenses connected with any offers they may make.
If the sale of the Securities, and the Warrants, if any,
provided for in this Agreement is not consummated by reason of
any failure, refusal or inability on the part of the Company
to perform any agreement on its part to be performed, or
because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company is not
fulfilled, the Company will reimburse the Underwriters for all
reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in
connection with their preparing to market and marketing the
Securities, and the Warrants, if any, or in contemplation of
performing their obligations hereunder, but the Company shall
then be under no further liability to any Underwriter in
respect of the Securities and Warrants, if any, not so
delivered except as provided in this Section and in Section 6.
The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the
transactions covered by this Agreement.
(i) The Company will apply the net proceeds of the sale
of the Securities, the Warrants, if any, and the Warrant
Securities, if any, as set forth in the Prospectus.
(j) The Company will not, without your prior written
consent, (i) offer for sale, sell or otherwise dispose of,
directly or indirectly, any shares of the common stock of the
Company or any securities of the Company that are
substantially similar to the Securities (other than the
Securities and shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee
compensation plans), (ii) sell or grant options, rights or
warrants with respect to any shares of the common stock of the
Company or any securities of the Company that are
substantially similar to the Securities (other than the
Securities and the grant of options pursuant to employee
benefit plans), or (iii) offer for sale, sell or otherwise
dispose of, directly or indirectly, any securities convertible
into or, exchangeable or exercisable for shares of the common
stock of the Company or any securities of the Company that are
substantially similar to the Securities (other than the
Securities and shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee
compensation plans), in each case until after the date
specified in Schedule A hereto.
5. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the
Securities, and the Warrants, if any, as provided herein shall be
subject to the accuracy, as of the date hereof and as of the
Closing Date (as if made on the Closing Date) (and as of any later
date on which Option Securities are purchased (as if made on such
date)), of the representations and warranties of the Company
herein, to the performance by the Company of its obligations
hereunder, to the conditions to closing, if any, listed in Schedule
A hereto, and to the following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing. No stop
order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, threatened by the Commission, and
any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your reasonable
satisfaction.
(b) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not
have been any material adverse change, on a consolidated
basis, in the capital stock, short-term debt or long-term debt
of the Company and its subsidiaries, or any material adverse
change, or any development involving a prospective material
adverse change in the condition (financial or other),
business, net worth or results of operations of the Company
and its subsidiaries, taken as a whole, which, in any such
case, is, in your reasonable judgment, so material and adverse
as to make it impracticable or inadvisable to proceed with the
completion of the sale of and payment for the Securities, and
the Warrants, if any, on the terms and in the manner
contemplated in the Prospectus.
(c) You shall have received the opinion of the General
Counsel or an Assistant General Counsel to the Company, dated
the Closing Date and any later date, if any, on which Option
Securities are purchased, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of
its jurisdiction of incorporation, with full power and
authority (corporate and other) to conduct its business
as described in the Registration Statement and
Prospectus; and the Company is duly qualified to do
business in each jurisdiction in which it owns or leases
real property or in which the conduct of its business
requires such qualification, except to the extent that the failure to so
qualify would not have a material adverse effect on the financial
condition or results
of operations of the Company and its subsidiaries taken as a whole;
(ii) Each subsidiary of the Company listed in
Schedule C hereto has been duly incorporated and is an
existing corporation in good standing under the laws of
its jurisdiction of incorporation, with full power and
authority (corporate and other) to conduct its business
as described in the Registration Statement and
Prospectus; each other subsidiary of the Company has been
duly incorporated and is an existing corporation in good
standing under the laws of its jurisdiction of
incorporation, with full power and authority (corporate
and other) to conduct its business as described in the
Registration Statement and Prospectus, except to the
extent that the failure to be so duly incorporated or in
good standing would not have a material adverse
effect on the financial
condition or results of operations of the Company
and its subsidiaries taken as a
whole; each subsidiary of the Company is duly qualified
to do business in each other jurisdiction in which it
owns or leases real property or in which the conduct of
its business requires such qualification, except to the
extent that the failure to so qualify would not have a
material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries
taken as a whole; and all of the outstanding shares of
capital stock of each of the Company's subsidiaries have
been duly authorized and validly issued, are fully paid
and non-assessable (except with respect to 12 U.S.C. Section 55
as it applies to national banks), except to the extent
that failure to be so duly authorized and validly issued,
fully paid and non-assessable would not have a material
adverse effect on the financial condition or results of
operations of the Company and its subsidiaries taken as
a whole; and the Company owns all outstanding shares of
capital stock of each "significant subsidiary" (as
defined in Rule 405 under the Act) (except as otherwise
stated in the Registration Statement and the Prospectus)
in each such case subject to no security interest, other
encumbrance, or adverse claim;
(iii) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued and
outstanding 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
thereof in the Prospectus;
(iv) The Registration Statement has become effective
under the Act and, to the best knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge
of such counsel, threatened by the Commission;
(v) Each part of the Registration Statement, when
such part became effective, and any amendment or
supplement thereto, and the Prospectus and any amendment
or supplement thereto, complied as to form in all
material respects with the requirements of the Act and
the Rules and Regulations; such counsel has no reason to
believe that the Registration Statement (or any further
amendment thereto made by the Company prior to such
Closing Date) as of its effective date contained any
untrue statement of a material fact or omitted to state
a material fact required to be stated therein or
necessary to make the statements therein not misleading,
or that the Prospectus (or the Prospectus as amended or
supplemented prior to such Closing Date) contains or, as
of its date, contained any untrue statement of a material
fact or omits or, as of its date, omitted to state a
material fact required to be stated therein or necessary
to make the statements therein, in light of the
circumstances under which they were made, not misleading;
and the documents incorporated by reference in the
Registration Statement or Prospectus, when they became
effective under the Act or were filed with the Commission
under the Exchange Act, as the case may be, complied as
to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; it being
understood that such counsel need express no opinion as
to the financial statements or other financial data
included in any of the documents mentioned in this
clause;
(vi) The descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate
and fairly present the information required to be shown;
and such counsel does not know of any statutes or legal
or governmental proceedings required to be described in
the Prospectus which are not described as required, or of
any contracts or documents of a character required to be
described in the Registration Statement or Prospectus (or
then required to be filed under the Exchange Act if upon
such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration
Statement which are not described and filed as required;
(vii) This Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company; the performance thereof and the
consummation of the transactions therein contemplated
(including, without limitation, the issuance of the
Securities and the Warrant Securities, if any, upon the
exercise of the Warrants, if any, or the issuance of the
Converted Securities, if any, upon conversion of the
Securities or Warrant Securities) will not result in a
breach or violation of any of the terms and provisions
of, or constitute a default under (other than with
respect to the Company's charter and by-laws, in each
case material to the Company and its subsidiaries taken
as a whole), any statute, any agreement or instrument
known to such counsel to which the Company or any of its
subsidiaries is a party or by which it is bound or to
which any of the property of the Company or any of its
subsidiaries is subject, the Company's charter or by-
laws, 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
properties; and
(viii) No consent, approval, authorization or order
of, or filing with, any court or governmental agency or
body is required for the consummation of the transactions
contemplated by this Agreement and any Delayed Delivery
Contracts in connection with the issuance or sale of the
Securities (including the Contract Securities, if any),
the Warrants, if any, or the Warrant Securities, if any,
by the Company, except (i) such as may be required under
the Act, (ii) the listing of the Securities on the New
York Stock Exchange, if applicable, (iii) such consents,
approvals, authorizations, orders or filings as may be
required under securities, insurance securities or Blue
Sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities, the
Warrants, if any, the Warrant Securities, if any, and the
Converted Securities, if any, by the Underwriters, and
(iv) such consents, approvals, authorizations, orders or
filings as may be required under federal or state
banking, insurance or other similar laws, all of which
requirements referred to in this clause (iv) have been
obtained except to the extent that failure to obtain such
consents, approvals, authorizations or orders or to make
such filings would not have (i) a material adverse effect on the
financial condition or results of operations of the Company and its
subsidiaries taken
as a whole or (ii) an adverse effect on the issue and sale
of the Securities, the Warrants, if any, the Warrant
Securities, if any, and the Converted Securities, if any,
or the consummation of the transactions contemplated by
this Agreement.
(d) You shall have received from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and any later date, if any, on which Option
Securities are purchased, with respect to the incorporation of
the Company, the validity of the Securities, the Warrants, if
any, the Warrant Securities, if any, the Converted Securities,
if any, the Registration Statement, the Prospectus and other
related matters as you reasonably may request, and such
counsel shall have received such papers and information as
they request to enable them to pass upon such matters.
(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 the
Agreement and also on the Closing Date and any later date, if
any, on which Option Securities are purchased, you shall have
received a letter from PricewaterhouseCoopers LLP, dated the
respective dates of delivery thereof, confirming that they are
independent auditors with respect to the Company within the
meaning of the Act and the applicable published rules and
regulations thereunder, and stating, as of the date of such
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Registration Statement
and Prospectus, as of a date not more than three business days
prior to the date of such letter), the conclusions and
findings of such firm with respect to the financial
information and other matters concerning the Company covered
by its draft letter reviewed by the Representatives prior to
the execution of this Agreement, and affirming, in form and
substance satisfactory to the Representatives and in all
material respects, the conclusions and findings set forth in
such draft letter.
(f) You shall have received from the Company a
certificate, signed by the Chairman of the Board, a Vice
Chairman, the President or a Vice President, and by the
principal financial or accounting officer, dated the Closing
Date and on any later date, if any, on which Option Securities
are purchased, to the effect that, to the best of their
knowledge based upon reasonable investigation:
(i) The representations and warranties of the
Company in this Agreement are true and correct, as if
made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is
threatened by the Commission; and
(iii) Except as contemplated in the Prospectus or
as set forth in such certificate, subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not
been any material adverse change, on a consolidated
basis, in the capital stock, short-term debt or long-term
debt of the Company and its subsidiaries, or any material
adverse change, or any development involving a
prospective material adverse change in the condition
(financial or other), business, net worth or results of
operations of the Company and its subsidiaries, taken as
a whole.
(g) The Securities (if such Securities are shares of
Class A Common Stock of the Company) shall have been duly
listed, subject to notice of issuance, on the New York Stock
Exchange.
(h) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement from each of the
Company's executive officers and directors with respect to the
securities owned by such officer or director, substantially to
the effect set forth in Section 4(j) hereof in form and
substance reasonably satisfactory to you; provided, however,
that if the Company fails to provide, by the Closing Date,
such agreement for any of the Company's outside directors, it
will provide such agreement within ten days of such Closing
Date.
(i) The Company shall have furnished to you such further
certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to you. The Company
will furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably
request.
6. Indemnification and Contribution. (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 are based upon an untrue statement
or alleged untrue statement of a material fact contained in any
part of the Registration Statement when such part became effective,
or in any amendment or supplement thereto, or in the Prospectus,
or any amendment or supplement thereto, or any Preliminary
Prospectus, 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, as incurred, for
any legal or other expenses reasonably incurred by it in connection
with investigating or defending against such loss, claim, damage,
liability or action; 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 therein in reliance upon and in conformity with
written information furnished to the Company by you, or by any
Underwriter through you specifically for use in the preparation
thereof and provided further that the Company shall not be liable
to any Underwriter under the indemnity agreement in this subsection
(a) with respect to any Preliminary Prospectus to the extent that
any loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Securities or Warrants, if
any, to a person as to whom it is established that there was not
sent or given, at or prior to written confirmation of such sale, a
copy of the Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such
delivery is required by the Act if the Company notified you in writing in
accordance with Section 4(c) hereof and previously furnished copies
of the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated
by reference) in the quantity requested in accordance with Section 4(e)
hereof to such Underwriter and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of
a material fact contained in any Preliminary Prospectus and
corrected in the Prospectus or the Prospectus as then amended or
supplemented.
(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
part of the Registration Statement when such part became effective,
or in any amendment or supplement thereto, or in the Prospectus or
any amendment or supplement thereto, or any Preliminary Prospectus,
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 therein in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through you, specifically for use in the preparation thereof; and
will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating
or defending against any such loss, claim, damage, liability or
action.
(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 in, 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 or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatening proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding and 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 6 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above, (i) 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 Securities, and the Warrants, if any, or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, 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 of the Securities (before deducting expenses) received by
the Company bear to the total compensation or profit (before
deducting expenses) received or realized by the Underwriters from
the purchase and resale, or underwriting, of the Securities, and
the Warrants, if any. 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 or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity, and
actions and inaction, to correct or prevent such untrue 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 to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of
the equitable considerations referred to in the first sentence of
this subsection (d). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of 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
action or claim (which shall be limited as provided in subsection
(c) above if the indemnifying party has assumed the defense of any
such action in accordance with the provisions thereof) which is the
subject of this subsection (d). 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 Securities, and the Warrants, if any, 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
shall be several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 6 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 or the Exchange Act; and the obligations of the
Underwriters under this Section 6 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 director
of the Company (including any person who, with his consent, is
named in the Registration Statement as about to become a director
of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company herein
or in certificates delivered pursuant hereto, and the agreements of
the several Underwriters contained in Section 6 hereof, shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any
controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive delivery of
and payment for the Securities, and the Warrants, if any.
8. Substitution of Underwriters. (a) If any Underwriter or
Underwriters shall fail to take up and pay for the amount of
Securities, and Warrants, if any, agreed by such Underwriter or
Underwriters to be purchased hereunder, upon tender of such
Securities, and Warrants, if any, in accordance with the terms
hereof, and the amount of Securities, and Warrants, if any, not
purchased does not aggregate more than 10% of the total amount of
Securities, and Warrants, if any, set forth in Schedule B hereto,
the remaining Underwriters shall be obligated to take up and pay
for (in proportion to their respective underwriting obligations
hereunder as set forth in Schedule B, except as may otherwise be
determined by you) the Securities, and the Warrants, if any, which
the withdrawing or defaulting Underwriter or Underwriters agreed
but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up
and pay for the amount of Securities, and Warrants, if any, agreed
by such Underwriter or Underwriters to be purchased hereunder, upon
tender of such Securities, and Warrants, if any, in accordance with
the terms hereof, and the amount of Securities, and Warrants, if
any, not purchased aggregates more than 10% of the total amount of
Securities, and Warrants, if any, set forth in Schedule B hereto,
and arrangements satisfactory to you and the Company for the
purchase of such Securities, and Warrants, if any, by other persons
are not made within 36 hours thereafter, this Agreement shall
terminate. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not to exceed seven full business days, as you shall
determine in order that the required changes in the Registration
Statement and the Prospectus or in any other documents or
arrangements may be effected. In the event of any such
termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 4(h) and
Section 6) nor shall any Underwriter (other than an Underwriter who
shall have failed, otherwise than for some reason permitted under
this Agreement, to purchase the amount of Securities, and Warrants,
if any, agreed by such Underwriter to be purchased under this
Agreement) be under any liability to the Company (except to the
extent provided in Section 6 hereof). Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-defaulting
Underwriter for damages occasioned by its default hereunder.
9. Termination. You shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at
or prior to the Closing Date if (i) trading generally on the New
York Stock Exchange shall have been suspended or materially
limited, (ii) trading in the Company's securities on the New York
Stock Exchange has been suspended or materially limited, (iii) a
banking moratorium shall have been declared by Federal or New York
authorities, or (iv) there shall have occurred since the execution
of this Agreement an outbreak or escalation of hostilities in which
the United States is involved, a declaration of war by Congress or
other calamity or crisis and, in the case of any such event
specified in clauses (i) through (iv) above, the effect of such
event, in your reasonable judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and
payment for the Securities, and the Warrants, if any, on the terms
and in the manner contemplated in the Prospectus. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 4(h) and Section 6
shall at all times be effective. If you elect to terminate this
Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or facsimile, confirmed by
letter.
10. Notices. All notices or communications hereunder shall be
in writing and if sent to you shall be mailed, delivered or sent by
facsimile transmission and confirmed to you at your address set
forth for that purpose in Schedule A hereto, or if sent to the
Company, shall be mailed, delivered or sent by facsimile
transmission and confirmed to the Company at 250 East Carpenter
Freeway, Irving, Texas 75062-2729 (facsimile number (972-652-5798),
Attention: General Counsel. Notices to any Underwriter pursuant to
Section 6 hereof shall be mailed, delivered or sent by facsimile
transmission and confirmed to such Underwriter's address furnished
to the Company in writing for the purpose of communications
hereunder. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice
of a new address for such purpose.
11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and the Underwriters and their
respective successors and the controlling persons, officers and
directors referred to in Section 6 and no other person will have
any right or obligation hereunder.
In all dealings with the Company under this Agreement, you
shall act on behalf of each of the several Underwriters, and any
action under this Agreement taken by you or by any one of you
designated in Schedule A hereto will be binding upon all the
Underwriters.
12. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Counterparts. This Agreement may be executed by one or
more of you in one or more counterparts, each of which shall
constitute an original and all of which taken together shall
constitute one and the same Agreement.
<PAGE>
If the foregoing correctly sets forth our agreement, please so
indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the
Company and the several Underwriters. Alternatively, the execution
of this Agreement by the Company and its acceptance by or on behalf
of the Underwriters may be evidenced by an exchange of telegraphic
or other written communications.
Very truly yours,
Associates First Capital Corporation
By:
--------------------------------
Name:
Title:
ACCEPTED at New York, New York as of the date
first above written on behalf of ourselves and as
Representatives of the other Underwriters, if any,
named in Schedule B hereto.
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:______________________________
(Goldman, Sachs & Co.)
<PAGE>
EXHIBIT I
ASSOCIATES FIRST CAPITAL CORPORATION
{Insert specific title of securities*}
DELAYED DELIVERY CONTRACT
*
{Insert date of initial public offering}
Associates First Capital Corporation
c/o*
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Associates First Capital
Corporation(hereinafter called the "Company"), and the Company agrees to sell
to the undersigned, {If one delayed closing, insert -- as of the date hereof,
for delivery on ,19 (the "Delivery Date")}
__________ shares
of the Company's {title of Securities
and related Warrants, if any}
(the "Securities"), offered by the Company's Prospectus relating thereto,
receipt of a copy of which is hereby acknowledged, at a purchase price of
________ per share and on the further terms and conditions set forth in this
contract.
{If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the amounts set forth
below:
Delivery Date Shares
<PAGE>
Each of such delivery dates is hereinafter referred to as a "Delivery Date".}
Payment for the Securities which the undersigned has agreed to purchase
for delivery on {the} {each} Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds at
the office of
at . M., time, on such Delivery Date upon delivery to
the undersigned of the Securities to be purchased by the undersigned for
delivery on such Delivery Date in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to such Delivery Date. If no designation is
received, the Securities will be registered in the name
of the undersigned and issued in a denomination equal to the aggregate amount
of Securities to be purchased by the undersigned on such Delivery Date.
* To be completed when the Underwriting Agreement is executed by the parties
thereto.
The obligation of the undersigned to take delivery of and make payment
for, Securities on {the} {each} Delivery Date shall be subject only to the
conditions that (1)investment in the Securities shall not at such Delivery
Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject, which investment the
undersigned represents is not prohibited on the date hereof, and (2) the
Company shall have delivered to the Underwriters the amount of
the Securities to be purchased by them pursuant to the
Underwriting Agreement referred to in the Prospectus mentioned above and
received payment therefor.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any other
similar contracts is in the Company's sole discretion and, without limiting
the foregoing, need not be on a first-come, first-serve basis. If this
contract is acceptable to the Company, it is requested that the Company sign
the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned
when such counterpart is mailed or delivered.
<PAGE>
This contract shall be governed by, and construed in accordance with, the
laws of the State of New York.
Very truly yours,
_________________________________
(Name of Purchaser)
By_______________________________
(Title of Signatory)
____________________________________
____________________________________
(Address of Purchaser)
Accepted, as of the above date.
Associates First Capital Corporation
By
Vice President
<PAGE>
EXHIBIT II
November , 1998
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
AND THE OTHER SEVERAL
UNDERWRITERS NAMED IN SCHEDULE B
TO THE UNDERWRITING AGREEMENT
REFERRED TO BELOW
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as counsel to Associates First Capital Corporation,
a Delaware corporation (the "Company"), in connection with the
purchase by you of an aggregate of [ ] shares of
Class A Common Stock, par value $0.01 per share (the "Shares"),
of the Company from the Company pursuant to the Underwriting
Agreement, dated November , 1998 (the "Underwriting
Agreement"), between you and the Company.
We have examined the Registration Statement on Form S-3 (File No.
333-55851) filed by the Company under the Securities Act of 1933,
as amended (the "Act"), as it became effective under
the Act (the "First Registration Statement"); the Registration
Statement on Form S-3 (File No. 333-62875) filed by the Company
under the Act, as it became effective under the Act (the
"Second Registration Statement" and, together with the First
Registration Statement, as amended by the post-effective
amendment referred to below, the "Registration Statements"),
which Second Registration Statement constitutes Post-Effective
Amendment No. 1 to the First Registration Statement; and the
Company's prospectus, dated September 18, 1998, as supplemented
by the prospectus supplement dated November , 1998 (the
"Prospectus"), filed by the Company pursuant to Rule 424(b) of
the rules and regulations of the Securities and Exchange
Commission (the "Commission") under the Act, which pursuant to
Form S-3 incorporates by reference or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 1997, the Quarterly Reports on
Form 10-Q of the Company for the periods ended March 31, 1998,
June 30, 1998 and September 30, 1998, the Current Reports
of the Company on Form 8-K dated January 20, 1998, February 10,
1998, February 12, 1998, March 2, 1998, March 3, 1998, March 19,
1998, April 8, 1998, April 13, 1998, April 14, 1998,
April 20, 1998, June 18, 1998, July 14, 1998, August 11, 1998 and
August 31, 1998 and the description of the Class A Common Stock
of the Company in the Registration Statement on
Form 8-A of the Company, dated February 23, 1996 (the "Exchange
Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). In addition,
we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing, and upon originals or
copies, certified or otherwise identified to our satisfaction, of
such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of
public officials and of officers and representatives of the
Company, and have made such other and further investigations, as
we have deemed relevant and necessary as a basis for the opinions
hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies and the authenticity of the
originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. The Shares have been duly authorized and, upon payment and
delivery in accordance with the Underwriting Agreement, will be
validly issued, fully paid and non-assessable;
2. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
3. The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of the
Underwriting Agreement will not violate the Restated Certificate
of Incorporation or By-laws of the Company or any federal or New
York statute or the Delaware General Corporation Law or any rule
or regulation that has been issued pursuant to any federal or
New York statute or the Delaware General Corporation Law, except
for violations of (i) federal or state banking, insurance,
consumer finance or other similar laws and (ii) rules or
regulations issued pursuant to federal or state banking,
insurance, consumer finance or other similar laws, as
to each of which we express no opinion;
4. No consent, approval, authorization, order, registration or
qualification of or with any federal or New York governmental
agency or body or any Delaware governmental agency or
body acting pursuant to the Delaware General Corporation Law or,
to our knowledge, any federal or New York court or any Delaware
court acting pursuant to the Delaware General Corporation
Law is required for the issue and sale of the Shares by the
Company and the compliance by the Company with all of the
provisions of the Underwriting Agreement, except for (i) the
registration under the Act of the Shares; (ii) the listing of the
Shares on the New York Stock Exchange; (iii) such consents,
approvals, authorizations, orders, registrations, qualifications
or filings as may be required under securities, insurance
securities or Blue Sky laws of any jurisdiction in connection
with the purchase and distribution of the Shares by you; and (iv)
such consents, approvals, authorizations, orders, registrations,
qualifications or filings as may be required under federal or
state banking, insurance, consumer finance or other similar laws,
as to each of which we express no opinion; and
5. The statements made in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to
constitute summaries of the terms of the Class A Common
Stock of the Company (including the Shares), constitute accurate
summaries of the terms of such stock in all material respects.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration
Statements, the Prospectus or the Exchange Act Documents
and take no responsibility therefor, except as and to the extent
set forth in paragraph 5 above. In the course of the preparation
by the Company of the Second Registration Statement and the
Prospectus (excluding the Exchange Act Documents), we
participated in conferences with certain officers and employees
of the Company, with representatives of PriceWaterhouseCoopers
LLP and with counsel to the Company. Except as noted below, we
did not participate in the preparation of the Exchange Act
Documents or review such documents prior to their filing with
the Commission. We discussed the Quarterly Report on Form 10-Q
of the Company for the quarter ended September 30, 1998 with the
Company and with counsel to the Company prior to its filing with
the Commission. Based upon our examination of the First
Registration Statement, the Second Registration Statement, the
Prospectus and the Exchange Act Documents, our investigations
made in connection with the preparation of the Second
Registration Statement, the Prospectus and the Quarterly Report
on form 10-Q of the Company for the quarter ended
September 30, 1998 (and excluding the other Exchange Act
Documents) and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration
Statements, as of the effective date of the Second Registration
Statement, and the Prospectus, as of November ,
1998, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
of the Commission thereunder and that the Exchange Act
Documents complied as to form when filed in all material respects
with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, except that
in each case we express no opinion with respect to the financial
statements, related schedules or other financial data contained
or incorporated by reference in the Registration Statements, the
Prospectus or the Exchange Act Documents, and (ii) we have no
reason to believe that the Registration Statements, as of the
effective date of the Second Registration Statement (including
the Exchange Act Documents on file with the Commission on such
effective date), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus (including the Exchange Act
Documents) contains or, as of November , 1998, contained any
untrue statement of a material fact or omits or, as of November
, 1998, omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in each
case we express no belief with respect to the financial
statements, related schedules or other financial data contained
or
incorporated by reference in the Registration Statements, the
Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law
of the State of New York, the federal law of the United
States and the Delaware General Corporation Law.
This opinion letter is rendered to you in connection with the
above described transactions. This opinion letter may not be
relied upon by you for any other purpose, or relied upon by, or
furnished to, any other person, firm or corporation without our
prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
<PAGE>
SCHEDULE A
Underwriting Agreement dated: November 23, 1998
Registration Statement Nos.: 333-62875 and 333-55851
Representatives: Goldman, Sachs & Co., Credit Suisse First Boston
Corporation, J.P. Morgan
Securities Inc., Bear, Stearns & Co. Inc.,
Donaldson, Lufkin & Jenrette Securities
Corporation, and Merrill Lynch, Pierce, Fenner &
Smith Incorporated
Title of Securities including par value, if any: Class A Common Stock, par
value $0.01 per share
Number of Shares to be Issued: 15,000,000
For Common Stock:
Other Terms:
Market or Exchange: New York Stock Exchange
Date Designated pursuant to Section 4(j): January 22, 1999
Price to Public: $75.50 per share
Price to Underwriters: $73.43 per share
Proceeds to Company: $1,101,450,000
Over-allotment Option: 2,250,000
Delayed Delivery:
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Other Conditions to Closing pursuant to Section 5:
You shall have received the opinion of Simpson Thacher & Bartlett, special
counsel to the
Company, dated the Closing Date and any later date, if any, on which Option
Securities are
purchased in the form set forth in Exhibit II.
<PAGE>
Closing:
Location of Closing: Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Date and time of Closing: November 30, 1998 at 10:00 A.M.
Office for checking Securities, and Warrants, if any:
Address for notices per Section 10:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004-2456
(212) 357-5505
Attn: Registration Department
Name of Underwriter to act per Section 11: Goldman, Sachs & Co.
<PAGE>
SCHEDULE B
<TABLE>
<cation>
Underwriter Number of Shares
----------- (with Warrants, if any)
to be purchased
---------------------
<S> <C>
Goldman, Sachs & Co. 2,666,667
Credit Suisse First Boston 2,666,667
Corporation
J.P. Morgan Securities, Inc. 2,666,667
Bear, Stearns & Co. Inc. 1,333,333
Donaldson Lufkin & Jenrette Securities 1,333,333
Corporation
Merrill Lynch, Pierce, Fenner & Smith 1,333,333
Incorporated
ABN AMRO Incorporated 176,000
Banque Nationale de Paris 176,000
CIBC Oppenheimer Corp.
Chase Securities Inc. 176,000
Commerzbank Capital Markets Corporation 176,000
Deutsche Bank Securities Inc. 176,000
Dresdner Kleinwort Benson 176,000
North America LLC
Keefe, Bruyette & Woods, Inc. 176,000
Lehman Brothers Inc. 176,000
Morgan Stanley & Co. Incorporated 176,000
NationsBanc Montgomery Securities LLC 176,000
Salomon Smith Barney Inc. 176,000
Warburg Dillon Read LLC 176,000
William Blair & Company, L.L.C. 89,000
BNY Capital Markets, Inc. 89,000
First Chicago Capital Markets, Inc. 89,000
Fox-Pitt, Kelton Inc. 89,000
Nesbitt Burns Securities Inc. 89,000
Piper Jaffray Inc. 89,000
RBC Dominion Securities Corporation 89,000
Stephens Inc. 89,000
----------
15,000,000
</TABLE>
<PAGE>
SCHEDULE C
Associates Corporation of North America
Associates Commercial Corporation
Associates Financial Services Company, Inc.
