EXHIBIT 99
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made this 27th day
of October, 2000 by and among Equifax Inc., a Georgia corporation (the
"Company"), and those other persons who are signatories hereto (individually, a
"Stockholder" and collectively, the "Stockholders").
RECITALS
WHEREAS, the Company, Equifax Acquisition, Inc., a wholly owned subsidiary
of the Company ("AqSub"), Compliance Data Center, Inc., a Nevada corporation
("CDC") and the Stockholders, have entered into an Asset Purchase Agreement and
Plan of Reorganization (the "Asset Purchase Agreement") dated as of even date
herewith, pursuant to which AqSub will acquire substantially all of the assets
of CDC in exchange for a certain number of shares of common stock of the Company
and certain cash consideration (the "Acquisition").
WHEREAS, CDC, upon consummation of the Acquisition, will hold 340,545
shares of the issued and outstanding common stock, $1.25 par value, of the
Company (the "Common Stock"), and such shares shall be transferred to the
Stockholders soon thereafter; and
WHEREAS, the parties to the Asset Purchase Agreement desire the Company to
register the shares of Common Stock under the 1933 Act (as hereafter defined)
for resale by the Stockholders and the execution and delivery of this Agreement
is a condition precedent to the consummation of the Acquisition.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Registration Rights.
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1.1. Definitions.
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(a) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"1933 Act"), and the declaration or ordering of effectiveness of such
Registration Statement or document.
(b) The term "Registrable Securities" means shares of Common Stock
issued or to be issued to any Holder in connection with the Acquisition but
shall not include any Common Stock (i) which has been effectively registered
under the 1933 Act and disposed of in accordance with a Registration Statement
covering such security or (ii) which has been distributed to the public pursuant
to Rule 144 under the 1933 Act.
(c) The term "Holder" means (i) a Stockholder and (ii) a transferee of
Registrable Securities from a Holder provided such transfer complies with
Section 1.9 of this Agreement.
(d) The term "Form S-3" means such form under the 1933 Act as in effect
on the date hereof or any successor registration form to Form S-3 under the 1933
Act subsequently adopted by the Securities and Acquisition Commission (the
"SEC").
(e) The term "affiliate" means a person or entity directly or
indirectly controlled by, controlling or under common control with another
person or entity.
1.2. Registrations.
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(a) The Company shall use reasonable efforts to prepare and file with
the SEC a Registration Statement (the "Registration Statement") on Form S-3
available for the registration and resale of Registrable Securities under the
1933 Act in connection with the Acquisition by the Holders from time to time,
covering all the Registrable Securities issued in connection with the
Acquisition, and shall use reasonable efforts to have the Registration Statement
filed as soon as reasonably practicable following the Closing Date (as defined
in the Asset Purchase Agreement). The Company may delay filing such Registration
Statement for a maximum of up to 90 days if it is not permitted to do so by the
Securities and Exchange Commission, or if then-current matters affecting the
Company require such delay, in the reasonable discretion of the Company
(including without limitation any inability by the Company to incorporate by
reference into its Registration Statements pursuant to the Securities Exchange
Act of 1934, as amended).
(b) A reasonable time before filing a Registration Statement or
prospectus or any amendment or supplement thereto, the Company will furnish to
the Holders of the Registrable Securities covered by such Registration Statement
copies of all such documents proposed to be filed.
(c) The Company shall prepare and file with the SEC such amendments and
supplements to each Registration Statement filed hereunder and the prospectus
used in connection therewith as may be necessary to keep the Registration
Statement effective until the earlier of (i) the time when all the Registrable
Securities covered by such Registration Statement have been sold by the Holders
and (ii) the date as of which each Holder is entitled to sell Registrable
Securities covered by such Registration Statement held by such Holder pursuant
to Rule 144 under the 1933 Act.
(d) Subject to the limitations set forth in this Agreement, and subject
to compliance with the obligations imposed by federal and state securities laws,
each Holder shall be entitled to include his/her shares of Registrable
Securities in the Registration Statement without limit as to the amount of such
shares.
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1.3. Obligations of the Company.
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In connection with the registration of any Registrable Securities under
Section 1.2 hereof or the amendment of a Registration Statement filed hereunder,
the Company shall:
(a) Prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection with such
Registration Statement, and use its reasonable efforts to cause each such
amendment to become effective, as may be necessary to comply with the provisions
of the 1933 Act with respect to the registration of all securities covered by
such Registration Statement, as set forth herein;
(b) Furnish to each Holder such number of copies of such Registration
Statement as each Holder shall reasonably request, each amendment and supplement
thereto and the prospectus included in such Registration Statement (including
each preliminary prospectus);
(c) Use its reasonable efforts to register or qualify the securities
covered by such Registration Statement under the securities laws of such
jurisdictions as shall be reasonably requested by the Holders, and do any and
all other acts and things which may be reasonably necessary or desirable to
consummate the registration (or exemption) of the securities in such
jurisdictions, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this paragraph (c)
be obligated to be so qualified or to consent to general service of process in
any such jurisdiction;
(d) Use its reasonable efforts to cause the Common Stock to be listed
on a national securities exchange; and
(e) Otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the SEC.
1.4. Furnishing of Information.
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Notwithstanding anything herein or in the Asset Purchase Agreement to
the contrary, it shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement that the selling Holders
shall furnish to the Company all such information regarding themselves or the
Registrable Securities held by them, and the intended method of disposition of
such securities, and otherwise cooperate with the Company and execute and
deliver any documents as shall be requested by the Company in order to effect
the registration of their Registrable Securities.
1.5. Expenses.
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All expenses incurred by the Company in connection with each of the
registrations, filings or qualifications pursuant to Section 1.2 (including all
amendments thereto),
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including (without limitation) all registration, printing and accounting fees,
fees and disbursements of counsel for the Company shall be borne by the Company.
1.6. Indemnification.
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In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will and hereby
does indemnify and hold harmless each selling Holder, the officers, directors,
shareholders and partners of such Holder and each person, if any, who controls
such Holder within the meaning of the 1933 Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), against any losses, claims, damages or
liabilities (joint or several, including reasonable legal and investigation
expenses, but excluding all consequential and similar damages) (collectively
"Losses") to which they may become subject under the 1933 Act, the 1934 Act or
other federal or state law or common law, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any of the following statements
or omissions (each a "Violation"): any untrue statement of a material fact
contained in such Registration Statement, or the omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (including in any prospectus or preliminary prospectus
included therein), unless such untrue statement or omission was contained in or
omitted from a preliminary prospectus and corrected in a final or amended
prospectus and the seller delivered a copy of the final or amended prospectus at
or prior to the confirmation of the sale of the registered securities to the
persons asserting any such loss, claim, damage or liability in the case where
such delivery is required by the 1933 Act. The indemnity agreement contained in
this Section 1.6(a) shall not apply to amounts paid in settlement of any loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld).
Notwithstanding anything to the contrary herein, the Company shall not be liable
to a Holder in any such case for any such Loss to the extent that it arises out
of or is based upon a Violation which occurs based upon, in reliance upon,
and/or in conformity with information furnished for inclusion in such
Registration Statement by or on behalf of such Holder or controlling person.
(b) To the fullest extent permitted by law, each selling Holder will
and hereby does indemnify and hold harmless the Company, each of its directors,
each of its officers who sign the Registration Statement, each person, if any,
who controls the Company within the meaning of the 1933 Act, each agent and any
other selling Holder selling securities in such Registration Statement and any
of its directors, officers or partners or any person who controls such selling
Holder, against any Losses (joint or several) to which they may become subject
under the 1933 Act, the 1934 Act or other federal or state or common law,
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs based upon, in reliance upon and/or in conformity with
information furnished by or on behalf of such Holder for inclusion in such
Registration Statement; and each such selling Holder will reimburse any legal or
other expenses reasonably incurred by (x) the Company or any such director,
officer, agent, controlling person
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of the Company, or (y) other selling Holder,officer, director, partner or
controlling person in connection with investigating or defending any such Loss;
provided, however, that the liability of each selling Holder hereunder shall be
limited to the proportion of any such Loss which is equal to the proportion that
the registered securities sold by such selling Holder under such Registration
Statement bears to the total amount of all securities registered by such
Registration Statement. The indemnity agreement contained in this Section 1.6(b)
shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of the selling Holder (which consent
shall not be unreasonably withheld) nor, in the case of a sale directly by the
Company of its securities (including a sale of such securities through any
underwriter retained by the Company to engage in a distribution solely on behalf
of the Company), shall the selling Holder be liable to the Company in any case
in which such untrue statement or alleged untrue statement or omission or
alleged omission was contained in a preliminary prospectus and corrected in a
final or amended prospectus, and the Company failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
securities to the person asserting any such loss, claim, damage or liability in
any case where such delivery is required by the 1933 Act.
(c) Each indemnified party or parties shall give reasonably prompt
notice to each indemnifying party or parties of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party or parties shall not relieve it or
them from any liability which it or they may have under this indemnity
agreement, except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. If the indemnifying party or parties
so elects within a reasonable time after receipt of such notice, the
indemnifying party or parties may assume the defense of such action or
proceeding at such indemnifying party's or parties' expense with counsel chosen
by the indemnifying party or parties and approved by the indemnified party
defendant in such action or proceeding, which approval shall not be unreasonably
withheld; provided, however, that if such indemnified party or parties determine
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in good faith that a conflict of interest exists and that therefore it is
advisable for such indemnified party or parties to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses available
to it or them which are different from or in addition to those available to the
indemnifying party, then the indemnifying party or parties shall not be entitled
to assume such defense and the indemnified party or parties shall be entitled to
separate counsel at the indemnifying party's or parties' expense. In such case,
if an indemnifying party or parties is not so entitled to assume the defense of
such action or does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying party or
parties will pay the reasonable fees and expenses of counsel for the indemnified
party or parties. Notwithstanding the foregoing, the indemnifying party shall
not be obligated to pay the reasonable fees and expenses of more than one
counsel for the indemnified parties with respect to any claim, unless in the
reasonable judgment of counsel to any indemnified party, expressed in a writing
delivered to the indemnifying party, a conflict of interest may exist between
such indemnified party and any other indemnified party with respect to such
claim, in which event the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel or counsels (which shall
be limited to one counsel per indemnified party). No indemnifying party or
parties will be liable for any settlement effected without the written consent
of such indemnifying party
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or parties, which consent shall not be unreasonably withheld. If an indemnifying
party is entitled to assume, and assumes, the defense of such action or
proceeding in accordance with this paragraph, such indemnifying party or parties
shall not, except as otherwise provided in this subsection (c), be liable for
any fees and expenses of counsel for the indemnified parties incurred thereafter
in connection with such action or proceeding.
(d) If the indemnification provided for in this Section 1.6 is
unavailable to a party that would have been an indemnified party under this
Section 1.6 in respect of any claims referred to herein, then each party that
would have been an indemnifying party hereunder shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such claims in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and such indemnified party on the other in connection with the
action, statement or omission which resulted in such claims, as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged omission to
state a material fact relates to information supplied by the indemnifying party
or such indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing provisions of this Section 1.6(d), a selling
Holder of registered securities shall not as an indemnifying party be required
to contribute any amount in excess of (x) the amount by which the total price at
which the registered securities sold by such indemnifying party were offered to
the public exceeds (y) the amount of any damages which such indemnifying party
has otherwise been required to pay by reason of such action, untrue or alleged
untrue statement or omission or alleged omission. The Company and each selling
Holder of registered securities agrees that it would not be just and equitable
if contribution pursuant to Section 1.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 1.6(d). The
amount paid or payable by an indemnified party as a result of the claims
referred to above in this Section 1.6(d) shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim.
(e) Without the prior written consent of the indemnified party, no
indemnifying party shall consent to entry of judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release of all
liability in respect of such claim.
(f) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of fraudulent misrepresentation within the meaning
of such Section 11(f).
1.7. Availability of Rule 144.
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With a view of making available to the Holders the benefits of Rule
144 promulgated under the 1933 Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration and with a
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view to making it possible for the Holders to register the registered securities
pursuant to a Registration Statement on Form S-3, the Company agrees to use its
reasonable efforts:
(a) to make and keep public information available, as those terms are
understood and defined in Rule 144; and
(b) to file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act.
1.8. Holdback Agreements.
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If the sale of Registrable Securities is effected by an underwritten
public offering, then upon the request of the underwriters managing the public
offering for sale by the Company of its securities, each Holder shall not sell
or otherwise transfer or dispose of any Registrable Securities for 180 days
following the effective date of a Registration Statement filed by the Company
under the 1933 Act covering the offer and sale of Common Stock or such other
securities by the Company in an underwritten offering without the prior written
consent of the underwriters for such offering. The Company may impose stop
transfer restrictions with respect to Registrable Securities subject to the
foregoing restriction until the end of the 180-day period set forth above.
1.9. Transfer of Registration Rights.
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The registration rights of a Holder under this Agreement may be
transferred to any transferee who acquires shares of Common Stock originally
acquired by such Holder only with the prior written consent of the Company,
which shall not be unreasonably withheld. In any such transfer, the Company
shall be given written notice by the transferor at the time of such transfer
stating the name and address of the transferee and identifying the securities
with respect to which the rights under this Agreement are being assigned, and
provided further that in any such transfer, the transferee shall agree in
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writing to acquire and hold such securities subject to the provisions of this
Agreement.
1.10. SEC Filings; Financial Statements.
---------------------------------
(a) Except for that certain Quarterly Report on Form 10-Q for the
period end September 30, 1998, as amended by the Form 10-Q/A amended thereto
filed on October 6, 2000, which contain two exhibits that are the subject of a
Request for Confidential Treatment filed with the SEC, the Company has complied
in all material respects with the applicable requirements of the 1934 Act (and
the rules and regulations promulgated thereunder) as in effect on the dates such
forms, reports and documents were filed.
(b) Subject to final resolution of certain issues with respect to the
Request for Confidential Treatment referred to in 1.10(a) above, the Company is
eligible to use Form S-3 in connection with registration of Securities under the
1933 Act.
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2. Representations and Warranties of the Stockholders.
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As an inducement of the Company to issue the Registrable Securities
to each Stockholder, each Stockholder (and its beneficial owners) represents and
warrants to the Company as follows (which representations and warranties shall
be made by each Shareholder and its beneficial owners):
2.1. No Distribution.
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Each Stockholder is acquiring the Registrable Securities for its
own account with no view to any distribution thereof in violation of the 1933
Act. Each Stockholder understands that since the Registrable Securities have not
been registered under the 1933 Act, the Registrable Securities must be held
indefinitely unless they are subsequently registered under the 1933 Act or an
exemption from such registration is available. Each Stockholder acknowledges
that the Company is under no obligation to register under the 1933 Act any sale
of the Registrable Securities or to comply with any provisions which would
entitle any such sale to any exemption from registration, except as provided in
this Agreement. Each Stockholder is fully familiar with Rule 144 promulgated
under the 1933 Act.
2.2. Information Made Available.
--------------------------
Each Stockholder has received and reviewed the Company's most
recent Annual Report to Stockholders, its most recent Annual Report on Form 10-K
and its most recent Quarterly Report on Form 10-Q. In addition, each Stockholder
has had the opportunity to discuss the Company's business, management and
financial affairs with the Company's management. Each Stockholder has such
knowledge and experience in financial matters that it is capable of evaluating
the merits and risks of an investment in the Registrable Securities. Each
Stockholder's financial condition is such that it is able to bear all economic
risks of investment in the Registrable Securities, including the risks of
holding the Registrable Securities for an indefinite period of time.
2.3. Legend Requirement.
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Until the Registration Statement is declared effective by the SEC,
each stock certificate representing the Registrable Securities shall bear a
legend in, or substantially in, the following form and any other legend required
by any applicable state securities laws:
"The shares represented by this certificate have not been
registered under the federal Securities Act of 1933 ("1933 Act") or
any applicable state securities laws, and may not be sold, pledged
or otherwise transferred without an effective registration under
such applicable securities laws or pursuant to Rule 144 under the
1933 Act or other valid exemptions from registration under the
federal and state securities laws."
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Such legend shall be removed by the Company after effectiveness of the
Registration Statement and upon presentment by the holder in connection with a
transfer of such shares. The Company may maintain a "stop transfer order"
against the Registrable Securities until the Registration is declared effective.
2.4. Prospectus Requirements.
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Each Stockholder hereby covenants with the Company that he, she or it
will promptly advise the Company of any changes in the information concerning
each Stockholder contained in a Registration Statement filed hereunder and that
such Stockholder will not make any sale of Registrable Securities pursuant to
any Registration Statement without complying with the prospectus delivery
requirements of the 1933 Act. Each Stockholder acknowledges that occasionally
there may be times when the Company must temporarily suspend the use of the
prospectus forming a part of any such Registration Statement until such time as
an amendment to such Registration Statement has been filed by the Company and
declared effective by the SEC, the relevant prospectus supplemented by the
Company or until such time as the Company has filed an appropriate report with
the SEC pursuant to the 1934 Act. During any period in which sales are
suspended and upon notice of such suspension from the Company, each Stockholder
agrees not to sell any such Registrable Securities pursuant to any such
prospectus. Each Stockholder covenants that he will not sell any Shares
pursuant to any such prospectus during the period commencing at the time at
which the Company gives such Stockholder notice of the suspension of the use of
said prospectus and ending at the time the Company gives notice that such
Stockholder may thereafter effect sales pursuant to said prospectus.
3. Miscellaneous.
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3.1. Notices.
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All notices, requests, demands and other communications which are
required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person or upon receipt
when transmitted by telecopy or telex or after dispatch by certified or
registered first class mail, postage prepaid, return receipt requested, or
Federal Express, to the party to whom the same is so given or made:
If to Company, to: Charles Y. Hoff, Esq.
Senior V.P. and Asst. General Counsel
Equifax Inc.
1550 Peachtree Street, NW
Atlanta, Georgia 30309
or to such other person at such other place as the Company shall designate to
the Stockholders in writing; and
With a copy to: Hunton & Williams
600 Peachtree Street, Suite 4100
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Atlanta, Georgia 30308
Attn: Joseph B. Alexander, Jr.
If to a Stockholder, to the address set forth on the signature pages
hereto, or to such other address subsequently provided by such Stockholder to
the Company, and in each case with a copy to:
___________________________
___________________________
___________________________
___________________________
3.2. Entire Agreement.
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This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, representations, warranties,
statements, promises, and understandings, whether written or oral, with respect
to the subject matter thereof, and cannot be changed or terminated orally. No
party hereto shall be bound by or charged with any written or oral agreements,
representations, warranties, statements, promises, or understandings not
specifically set forth in this Agreement.
3.3. Headings; Certain Terms.
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The section and other headings contained in this Agreement are for
reference purposes only and shall not be deemed to be part of this Agreement or
to affect the meaning or interpretation of this Agreement.
3.4. Governing Law.
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All questions concerning the construction, validity and interpretation
of this Agreement and the schedule hereto will be governed by the law of the
State of Georgia.
3.5. Severability.
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If any term or provision of this Agreement shall to any extent be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. Upon the determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties shall negotiate in good faith to modify this Agreement so as to
effect their original intent as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
3.6. Termination of Agreement.
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This Agreement shall terminate on the date as of which each Holder is
entitled to sell all remaining Registrable Securities held by such Holder,
without limitation as to volume, pursuant to Rule 144 under the 1933 Act.
3.7. Amendment and Waivers.
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Except as otherwise provided herein, the provisions of this Agreement
may be amended or waived only upon the prior written consent of the Company and
the Holders of at least 50% of the Registrable Securities outstanding at the
time.
3.8. Section References.
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All references contained in this Agreement to any section number are
references to sections of this Agreement unless otherwise specifically stated.
3.9. Counterparts.
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This Agreement may be executed in any number of counterparts, each of
which, when executed, shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
3.10. Binding Effect.
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This Agreement shall be binding on all successors and assigns of the
Company, whether by merger, reorganization, sale of assets or otherwise.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have signed this Agreement, or have caused
this Agreement to be signed on their behalf by an officer or representative
thereunder duly authorized, on the respective dates stated below.
STOCKHOLDERS:
RICHARD L. AND BONNIE J. GREEN
LIVING TRUST, OCTOBER 7, 1998
/s/ Richard L. Green
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Richard L. Green
Trustee
Address: PO Box 499, Zephyr Cove, NV 89448
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LOUISE BRANTLEY TANNER
1991 LIVING TRUST
/s/ Louise Brantley Tanner
--------------------------
Louise Brantley Tanner
Trustee
Address: 1253 Sunset Cliffs Blvd
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San Diego, CA 92107
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--------------------------------
COMPANY:
EQUIFAX INC.
/s/ William Catucci
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William Catucci
Executive Vice President
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