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EXHIBIT 1.1
VISION TWENTY-ONE, INC.
2,100,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
August __, 1997
PRUDENTIAL SECURITIES INCORPORATED
WHEAT, FIRST SECURITIES, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vision Twenty-One, Inc., a Florida corporation (the "Company"), and
the selling securityholders named in Schedule 2 hereto (each a "Selling
Securityholder" and together the "Selling Securityholders") hereby confirm
their agreement with the several underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth
below. If you are the only Underwriters, all references herein to the
Representatives shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the several Underwriters
an aggregate of 2,100,000 shares (the "Firm Securities") of the Company's
Common Stock, par value $0.001 per share ("Common Stock"). The Company and the
Selling Securityholders also propose to sell to the several Underwriters not
more than 315,000 additional shares of Common Stock if requested by the
Underwriters as provided in Section 3 of this Agreement. Any and all shares of
Common Stock to be purchased by the
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1 Plus an option to purchase from the Company and the Selling Securityholders
up to 315,000 additional shares to cover over-allotments.
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Underwriters pursuant to such option are referred to herein as the "Option
Securities," and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities."
2. Representations and Warranties of the Company and the Selling
Securityholders.
(a) The Company represents and warrants to, and agrees
with, each of the several Underwriters that:
(i) A registration statement on
Form S-1 (File No. 333-29213) with respect to the
Securities, including a prospectus subject to
completion, has been filed by the Company with the
Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (the
"Act"), and one or more amendments to such
registration statement may have been so filed. After
the execution of this Agreement, the Company will
file with the Commission either (A) if such
registration statement, as it may have been amended,
has been declared by the Commission to be effective
under the Act, either (1) if the Company relies on
Rule 434 under the Act, a Term Sheet (as hereinafter
defined) relating to the Securities, that shall
identify the Preliminary Prospectus (as hereinafter
defined) that it supplements containing such
information as is required or permitted by Rules 434,
430A and 424(b) under the Act or (2) if the Company
does not rely on Rule 434 under the Act, a prospectus
in the form most recently included in an amendment to
such registration statement (or, if no such amendment
shall have been filed, in such registration
statement), with such changes or insertions as are
required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either
clause (A)(1) or (A)(2) of this sentence as have been
provided to and approved by the Representatives prior
to the execution of this Agreement, or (B) if such
registration statement, as it may have been amended,
has not been declared by the Commission to be
effective under the Act, an amendment to such
registration statement, including a form of
prospectus, a copy of which amendment has been
furnished to and approved by the Representatives
prior to the execution of this Agreement. The
Company may also file a related registration
statement with the Commission pursuant to Rule 462(b)
under the Act for the purpose of registering certain
additional Securities, which registration shall be
effective upon filing with the Commission. As used
in this Agreement, the term "Original Registration
Statement" means the registration statement initially
filed relating to the Securities, as amended at the
time when it was or is declared effective, including
(A) all financial schedules and exhibits thereto and
(B) any information omitted therefrom pursuant to
Rule 430A under the Act and included in the
Prospectus (as hereinafter defined); the term "Rule
462(b) Registration Statement" means any registration
statement filed with the Commission pursuant to Rule
462(b) (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated
therein at the time such Registration Statement
becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and
any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus
subject to completion filed with the Registration
Statement or any amendment thereto (including the
prospectus subject to completion, if any,
included in the Registration
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Statement or any amendment thereto at the time it was or is
declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the
Act, the Term Sheet relating to the Securities that is first
filed pursuant to Rule 424(b)(7) under the Act, together with
the Preliminary Prospectus identified therein that such Term
Sheet supplements;
(B) if the Company does not rely on Rule 434
under the Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434
under the Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Act, the prospectus included
in the Registration Statement.
The term "Term Sheet" means any abbreviated Term Sheet that satisfies
the requirements of Rule 434 under the Act. Any reference in this
Agreement to the "date" of a Prospectus that includes a Term Sheet
shall mean the date of such Term Sheet.
(ii) The Commission has not
issued any order preventing or suspending the use of
any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission it (A)
contained all statements required to be stated
therein in accordance with, and complied in all
material respects with the requirements of, the Act
and the rules and regulations of the Commission
thereunder, and (B) did not include any untrue
statement of a material fact or omit to state any
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. When the
Registration Statement or any amendment thereto was
or is declared effective, it (A) contained or will
contain all statements required to be stated therein
in accordance with, and complied or will comply in
all material respects with the requirements of, the
Act and the rules and regulations of the Commission
thereunder and (B) did not or will not include any
untrue statement of a material fact or omit to state
any material fact necessary to make the statements
therein not misleading. When the Prospectus or any
Term Sheet that is a part thereof or any amendment or
supplement to the Prospectus is filed with the
Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or
supplement is not required to be so filed, when the
Registration Statement or the amendment thereto
containing such amendment or supplement to the
Prospectus was or is declared effective) and on the
Firm Closing Date and any Option Closing Date (both
as hereinafter defined), the Prospectus, as amended
or supplemented at any such time, (A) contained or
will contain all statements required to be stated
therein in accordance with, and complied or will
comply in all material respects with the requirements
of, the Act and the rules and regulations of the
Commission thereunder and (B) did not or will not
include any untrue statement of a material fact or
omit to state any material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading. The
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foregoing provisions of this paragraph (ii) do not
apply to statements or omissions made in any
Preliminary Prospectus, the Registration Statement or
any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and
in conformity with written information furnished to
the Company by any Underwriter through the
Representatives specifically for use therein.
(iii) If the Company has elected
to rely on Rule 462(b) and the Rule 462(b)
Registration Statement has not been declared
effective (i) the Company has filed a Rule 462(b)
Registration Statement in compliance with and that is
effective upon filing pursuant to Rule 462(b) and has
received confirmation of its receipt and (ii) the
Company has given irrevocable instructions for
transmission of the applicable filing fee in
connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111
promulgated under the Act or the Commission has
received payment of such filing fee.
(iv) The Company, each of its
subsidiaries and, to the Company's knowledge, each of
the eye care entities with which the Company has a
management agreement (collectively, the "Eye Care
Entities") have been duly organized and are validly
existing as corporations in good standing under the
laws of their respective jurisdictions of
incorporation and are duly qualified to transact
business as foreign corporations and are in good
standing under the laws of all other jurisdictions
where the ownership or leasing of their respective
properties or the conduct of their respective
businesses requires such qualification, except where
the failure to be so qualified does not amount to a
material liability or disability to the Company.
(v) The Company, each of its
subsidiaries and, to the Company's knowledge, each
Eye Care Entity have full power (corporate and other)
to own or lease their respective properties and
conduct their respective businesses to the extent
described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus; and the
Company has full power (corporate and other) to enter
into this Agreement and to carry out all the terms
and provisions hereof to be carried out by it.
(vi) The issued shares of capital
stock of each of the Company's subsidiaries have been
duly authorized and validly issued, are fully paid
and nonassessable and are owned beneficially by the
Company free and clear of any security interests,
liens, encumbrances, equities or claims.
(vii) The Company has an
authorized, issued and outstanding capitalization as
set forth in the Prospectus or, if the Prospectus is
not in existence, the most recent Preliminary
Prospectus. All of the issued shares of capital
stock of the Company (including but not limited to
the Option Securities to be sold by the Selling
Securityholders) have been duly authorized and
validly issued and are fully paid and nonassessable.
The Company's Firm Securities and Option Securities
have been duly authorized and at the Firm Closing
Date or the Option Closing Date, as the case may be,
after payment therefor in accordance herewith,
will be validly issued, fully paid and
nonassessable. No holders of outstanding shares of
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capital stock of the Company are entitled as such to
any preemptive or other rights to subscribe for any
of the Securities, and no holder of securities
of the Company has any right which has not been fully
exercised or waived to require the Company to
register the offer or sale of any securities owned by
such holder under the Act in the public offering
contemplated by this Agreement.
(viii) The capital stock of the
Company conforms in all material respects to the
description thereof contained in the Prospectus or,
if the Prospectus is not in existence, the most
recent Preliminary Prospectus.
(ix) The financial statements and
schedules of the Company and its subsidiaries
included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus)
fairly present, on the basis stated therein, the
financial position of the Company and its
subsidiaries and the results of operations and cash
flows as of the respective dates and for the
respective periods therein specified. Such financial
statements and schedules have been prepared in
accordance with generally accepted accounting
principles consistently applied throughout the
periods involved (except as otherwise noted therein).
The unaudited pro forma financial data presented in
the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the summaries of those
unaudited pro forma financial statements contained in
the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus)
together with the related notes thereto, included in
the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent
Preliminary Prospectus) include all adjustments
necessary to present fairly the pro forma financial
information at the dates and for the periods
indicated, and all assumptions used in preparing such
pro forma financial data are reasonable. The selected
financial data set forth under the caption "Selected
Financial Data" in the Prospectus (or, if the
Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis
stated in the Prospectus (or such Preliminary
Prospectus), the information included therein.
(x) Ernst & Young, LLP who has
audited certain financial statements of the Company
and delivered their report with respect to the
Company's audited financial statements and schedules
included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus),
are, to the knowledge of the Company, independent
public accountants as required by the Act and the
applicable rules and regulations thereunder.
(xi) The execution and delivery
of this Agreement have been duly authorized by the
Company, and this Agreement has been duly executed
and delivered by the Company and is the valid and
binding agreement of the Company, enforceable against
the Company in accordance with its terms.
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(xii) No legal or governmental
proceedings are pending to which the Company, any of
its subsidiaries or, to the Company's knowledge, any
of the Eye Care Entities is a party or to which
the property of the Company, any of its subsidiaries
or, to the Company's knowledge, any of the Eye Care
Entities is subject that are required to be described
in the Registration Statement or the Prospectus and
are not described therein (or, if the Prospectus is
not in existence, the most recent Preliminary
Prospectus) and, to the knowledge of the Company, no
such proceedings have been threatened against the
Company, any of its subsidiaries or, to the Company's
knowledge, any of the Eye Care Entities or with
respect to any of their respective properties; no
contract or other document is required to be
described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein
(or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or filed as required;
after due inquiry, management of the Company does not
know of any legal or governmental proceedings pending
against any optometrist or ophthalmologist practicing
in any Eye Care Entity (an "Affiliated Provider"),
which could reasonably be expected to result in a
material adverse change in the condition (financial
or otherwise), business prospects, net worth or
results of operations of the Company.
(xiii) The issuance, offering and
sale of the Securities to the Underwriters by the
Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this
Agreement and the consummation of the other
transactions herein contemplated do not (A) require
the consent, approval, authorization, registration or
qualification of or with any governmental authority,
except such as have been obtained, such as may be
required under state securities or blue sky laws and,
if the registration statement filed with respect to
the Securities (as amended) is not effective under
the Act as of the time of the execution hereof, such
as may be required (and shall be obtained as provided
in this Agreement) under the Act, or (B) conflict
with or result in a breach or violation of any
material terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its
subsidiaries or any of its properties are bound, or
the charter documents or bylaws of the Company, or
any statute or any judgment, decree, order, rule or
regulation of any court or other governmental
authority or any arbitrator applicable to the Company
or any of its subsidiaries.
(xiv) Subsequent to the respective
dates as of which information is given in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent
Preliminary Prospectus), (A) neither the Company, its
subsidiaries nor, to the Company's knowledge, any of
the Eye Care Entities has sustained any material loss
or interference with their respective businesses or
properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance,
or from any labor dispute or any legal or
governmental proceeding and there has not been any
material adverse change, or, to the knowledge of the
Company, any development involving a prospective
material adverse change, in the condition (financial
or otherwise), management, business prospects,
net worth,
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or results of operations of the Company or
any of its subsidiaries; (B) neither the Company nor
its subsidiaries has incurred any material liability
or obligation, direct or contingent, nor entered into
any material transaction not in the ordinary course
of business; (C) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any
kind on its capital stock; and (D) there has not been
any material change in the capital stock, short-term
debt or long-term debt of the Company, except in
each case as described in or contemplated by the
Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xv) The Company has not,
directly or indirectly, (A) taken any action designed
to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any
security of the Company to facilitate the sale or
resale of the Securities or (B) since the filing of
the Registration Statement (I) sold, bid for,
purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (II) paid
or agreed to pay to any person any compensation for
soliciting another to purchase any other securities
of the Company except for the sale of Securities by
the Selling Securityholders under this Agreement.
(xvi) The Company and each of its
subsidiaries have good and marketable title to all
tangible personal property owned by each of them, in
each case free and clear of any security interests,
liens, encumbrances, equities, claims and other
defects, except which do not materially and adversely
affect the value of such property and do not
interfere with the use made or proposed to be made of
such property by the Company or any of its
subsidiaries, and any real property and buildings
held under lease by the Company and each of its
subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are not
material and do not interfere with the use made or
proposed to be made of such property and buildings by
the Company or any of its subsidiaries, in each case
except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xvii) No labor dispute with the
employees of the Company, or any of its subsidiaries
or, to the Company's knowledge, any Eye Care Entity
exists or is threatened or imminent that could result
in a material adverse change in the condition
(financial or otherwise), business prospects, net
worth or results of operations of the Company or any
of its subsidiaries, except as described in or
contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
Prospectus).
(xviii) The Company, each of its
subsidiaries and, to the Company's knowledge, the Eye
Care Entities own or possess, or can acquire on
reasonable terms, all material patents, patent
applications, trademarks, service marks, trade names,
licenses, copyrights and proprietary or other
confidential information currently employed by them
in connection with their respective businesses, and
neither the Company, any of its subsidiaries nor, to
the Company's knowledge, any Eye Care Entity has
received any notice of, or has any reasonable
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belief that its use constitutes, a material
infringement of or conflict with asserted rights of
any third party with respect to any of the
foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in
the condition (financial or otherwise), business
prospects, net worth or results of operations of the
Company or any of its subsidiaries, except as
described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xix) The Company, each of its
subsidiaries and, to the Company's knowledge, each
Eye Care Entity is insured by insurers of recognized
financial responsibility against such losses and
risks and in such amounts as are ordinary and
customary in the business in which it is engaged;
neither the Company, any of its subsidiaries nor, to
the Company's knowledge, any Eye Care Entity has been
refused any insurance coverage sought or applied for;
and neither the Company, any of its subsidiaries nor,
to the Company's knowledge, any Eye Care Entity has
any reason to believe that it will not be able to
renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue
its business at a cost that would not materially and
adversely affect the condition (financial or
otherwise), business prospects, net worth, or results
of operations of the Company, except as described in
or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xx) The Company and each of its
subsidiaries, and, to the Company's knowledge, the
Affiliated Providers and the Eye Care Entities
possess all certificates, authorizations and permits
issued by the appropriate federal, state, local or
foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company,
any of it subsidiaries nor, to the Company's
knowledge, any Eye Care Entity has received any
notice of proceedings relating to the revocation or
modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in
the condition (financial or otherwise), business
prospects, net worth or results of operations of the
Company or any of its subsidiaries, except as
described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xxi) The Company and each of its
subsidiaries will conduct their operations in a
manner that will not subject it to registration as an
investment company under the Investment Company Act
of 1940, as amended, and this transaction will not
cause the Company or any of its subsidiaries to
become an investment company subject to registration
under such Act.
(xxii) The Company and each of its
subsidiaries has filed all foreign, federal, state
and local tax returns that are required to be filed
or has requested extensions thereof (except in any
case in which the failure so to file would not have a
material adverse effect on the Company or any of its
subsidiaries) and has paid all taxes required to be
paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the
foregoing is due and payable, except for any
such assessment, fine or penalty that is currently
being
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contested in good faith or as described in or
contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
Prospectus).
(xxiii) Neither the Company, any of
its subsidiaries nor, to the Company's knowledge, any
of the Eye Care Entities is in violation of any
federal or state law or regulation relating to (i)
the environment or hazardous or toxic substances or
wastes, pollutants or contaminants or to the storage,
handling or transportation of hazardous or toxic
material ("Environmental Laws") or (ii) occupational
safety and health and the Company, each of its
subsidiaries and, to the Company's knowledge, the Eye
Care Entities have received all permits, licenses or
other approvals required of them under applicable
federal and state occupational safety and health and
Environmental Laws and regulations to conduct their
respective businesses, and the Company, each of its
subsidiaries and, to the Company's knowledge, each
Eye Care Entity is in compliance with all terms and
conditions of any such permit, license or approval,
except any such violation of law or regulation,
failure to receive required permits, licenses or
other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals
which would not, singly or in the aggregate, result
in a material adverse change in the condition
(financial or otherwise), business prospects, net
worth or results of operations of the Company, any of
its subsidiaries or, to the Company's knowledge, any
of the Eye Care Entities, except as described in or
contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
Prospectus). Neither the Company, any of its
subsidiaries nor, to the Company's knowledge, any of
the Eye Care Entities have any pending or threatened
Environmental Law or occupational safety and health
claims against it nor are there circumstances with
respect to any property or operations of the Company,
any of its subsidiaries or, to the Company's
knowledge, any of the Eye Care Entities that could
reasonably be anticipated to form the basis of an
Environmental Law or occupational safety and health
claim against the Company, any of its subsidiaries or
any Eye Care Entity which, singly or in the
aggregate, result in a material adverse change in the
condition (financial or otherwise), business
prospects, net worth or results of operations of the
Company, any of its subsidiaries or any of the Eye
Care Entities, except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xxiv) In the ordinary course of
its business, the Company conducts a periodic review
of the effect of Environmental Laws on the business,
operations and properties of the Company, in the
course of which it identifies and evaluates
associated costs and liabilities (including, without
limitation, any capital or operating expenditures
required for clean-up, closure of properties or
compliance with Environmental Laws or any permit,
license or approval, any related constraints on
operating activities and any potential liabilities to
third parties). On the basis of such review, the
Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the
Company.
(xxv) Each certificate signed by
any officer of the Company and delivered to the
Representatives or counsel for the Underwriters
pursuant to this Agreement shall be deemed
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to be a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
(xxvi) Neither the Company nor any
of its subsidiaries owns any shares of stock or any
other equity securities of any corporation or have
any equity interest in any firm, partnership,
association or other entity, except as described in
or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxvii) The Company maintains a
system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions
are executed in accordance with management's general
or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of
financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted
only in accordance with management's general or
specific authorization; and (D) the recorded
accountability for assets is compared with the
existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(xxviii) No default exists on the
part of the Company, any of its subsidiaries
or, to the Company's knowledge, any Eye Care Entity,
and no event has occurred which, with notice or lapse
of time or both, would constitute a default on the
part of the Company, any of its subsidiaries or, to
the Company's knowledge, any Eye Care Entity in the
due performance and observance of any material term,
covenant or condition of any indenture, mortgage,
deed of trust, lease, services and support agreement
or other agreement or instrument to which the
Company, any of its subsidiaries or any Eye Care
Entity is a party or by which the Company, any of its
subsidiaries or any Eye Care Entity or any of their
respective properties are bound or may be affected in
any material adverse respect with regard to the
property, business or operations of the Company or
any of its subsidiaries.
(xxix) Subject to the
qualifications relating to the uncertainty of the
interpretation of governmental regulations relating
to the corporate practice of optometry and
ophthalmology described in the Prospectus (or, if the
Prospectus is not in existence, the most recent
Preliminary Prospectus), the Company, each of its
subsidiaries and, to the Company's knowledge, each
Eye Care Entity and their respective operations
comply in all material respects with all applicable
laws and regulations, including, without limitation,
those relating to the practice of eye care (including
the management or operation of eye care centers), the
splitting of professional fees with optometrists and
ophthalmologists, the ownership or control of the
assets of an eye care practice, the employment of
optometrists and ophthalmologists or other personnel,
the content of advertising, the making of payments in
consideration for referrals of patients, limitations
on tasks that may be delegated by an Affiliated
Provider to other staff members, the business of
insurance and reimbursement by governmental agencies.
The Company has not been made aware of, or been put
on notice that, any Affiliated Provider, since the
date of his affiliation with the Company, is not
practicing in material compliance with all such laws
and regulations.
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(xxx) All offers and sales of the
Company's capital stock prior to the date hereof,
were at all relevant times exempt from the
registration requirements of the Act and were the
subject of an available exemption from the
registration requirements of all applicable state
securities or blue sky laws.
(xxxi) Each of the agreements
providing for a transaction that is part of the 1996
Acquisitions, the Pinellas Acquisition and the Recent
Acquisitions (as defined in the Registration
Statement) has been duly authorized, executed and
delivered by the Company and, to the knowledge of the
Company, constitutes the valid and legally binding
obligation of each of the other parties thereto, and
is enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as
to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law); there are no
statutory or contractual rights of dissent or
appraisal with respect to the transfer of any of the
properties in the 1996 Acquisitions, the Pinellas
Acquisition and the Recent Acquisitions; and the 1996
Acquisitions, the Pinellas Acquisition and the Recent
Acquisitions conformed, in all material respects, to
the description thereof contained in the Registration
Statement.
(xxxii) Except as disclosed in the
Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus),
there are no outstanding (A) securities or
obligations of the Company or any of its subsidiaries
convertible into or exchangeable for any capital
stock of the Company or any of its subsidiaries, (B)
warrants, rights or options to subscribe for or
purchase from the Company or any of its subsidiaries
any such capital stock or any such convertible or
exchangeable securities or obligations, or (C)
obligations of the Company or any of its subsidiaries
to issue any shares of capital stock, any such
convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(xxxiii) The Company has not
distributed and, prior to the later of (A) the Firm
Closing Date and (B) the completion of the
distribution of the Securities, will not distribute
any offering material in connection with the offering
and sale of the Securities other than the
Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any
supplement or amendment thereto, or any materials, if
any permitted by the Act.
(b) Each Selling Securityholder severally represents and warrants
to, and agrees with, each of the several Underwriters that:
(i) Such Selling Securityholder has full
power (partnership, trust and other) to enter into
this Agreement and to sell, assign, transfer and
deliver to the Underwriters the Securities to be
sold by such Selling Securityholder hereunder in
accordance with the terms of this Agreement; the
execution and delivery of this Agreement have been
duly authorized by all necessary actions of such
Selling Securityholder (partnership, trust or other,
as
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applicable); and this Agreement has been duly
executed and delivered by such Selling
Securityholder.
(ii) Such Selling Securityholder has duly
executed and delivered a power of attorney and
custody agreement (with respect to such Selling
Securityholder, the "Power of Attorney" and the
"Custody Agreement," respectively), each in the form
heretofore delivered to the Representatives,
appointing Xxxxxxxx Xxxxxxxx as such Selling
Securityholder's attorney-in-fact (the
"Attorney-in-Fact") with authority to execute,
deliver and perform this Agreement on behalf of such
Selling Securityholder and appointing Xxxxxxxx, Loop
& Xxxxxxxx LLP, as custodian thereunder (the
"Custodian"). Certificates in negotiable form,
endorsed in blank or accompanied by blank stock
powers duly executed, with signatures appropriately
guaranteed, representing the Securities to be sold by
such Selling Securityholder hereunder have been
deposited with the Custodian pursuant to the Custody
Agreement for the purpose of delivery pursuant to
this Agreement. Such Selling Securityholder has full
power (partnership, trust or other, as applicable) to
enter into the Custody Agreement and the Power of
Attorney and to perform his obligations under the
Custody Agreement. The Custody Agreement and the
Power of Attorney have been duly executed and
delivered by such Selling Securityholder and,
assuming due authorization, execution and delivery by
the Custodian, are the legal, valid, binding and
enforceable instruments of such Selling
Securityholder. Such Selling Securityholder agrees
that each of the Securities represented by the
certificates on deposit with the Custodian is subject
to the interests of the Underwriters hereunder, that
the arrangements made for such custody, the
appointment of the Attorney-in-Fact and the right,
power and authority of the Attorney-in-Fact to
execute and deliver this Agreement, to agree on the
price at which the Securities (including such Selling
Securityholder's Securities) are to be sold to the
Underwriters, and to carry out the terms of this
Agreement, are to that extent irrevocable and that
the obligations of such Selling Securityholder
hereunder shall not be terminated, except as provided
in this Agreement or the Custody Agreement, by any
act of such Selling Securityholder, by operation of
law or otherwise, whether in the case of any
individual Selling Securityholder by the death or
incapacity of such Selling Securityholder, in the
case of a trust or estate by the death of the trustee
or trustees or the executor or executors or the
termination of such trust or estate, or in the case
of a partnership Selling Securityholder by its
liquidation or dissolution or by the occurrence of
any other event. If any individual Selling
Securityholder, trustee or executor should die or
become incapacitated or any such trust should be
terminated, or if any corporate or partnership
Selling Securityholder shall liquidate or dissolve,
or if any other event should occur, before the
delivery of such Securities hereunder, the
certificates for such Securities deposited with the
Custodian shall be delivered by the Custodian in
accordance with the respective terms and conditions
of this Agreement as if such death, incapacity,
termination, liquidation or dissolution or other
event had not occurred, regardless of whether or not
the Custodian or the Attorney-in-Fact shall have
received notice thereof.
(iii) Such Selling Securityholder is the
lawful owner of the Securities to be sold by
such Selling Securityholder hereunder and upon sale
and delivery of, and payment for, such
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Securities, as provided herein, such Selling
Securityholder will convey good and marketable
title to such Securities, free and clear of any
security interests, liens, encumbrances, equities,
claims or other defects.
(iv) Such Selling Securityholder has not,
directly or indirectly, (A) taken any action designed
to cause or result in, or that has constituted or
which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any
security of the Company to facilitate the sale
or resale of the Securities or (B) since the filing
of the Registration Statement (I) sold, bid for,
purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (II) paid
or agreed to pay to any person any compensation for
soliciting another to purchase any other securities
of the Company (except for the sale of Securities by
the Selling Securityholders under this Agreement).
(v) In the case of the Selling
Securityholders identified in Schedule 1 hereto
as Group 1 Selling Securityholders (collectively, the
"Group 1 Selling Securityholders"), such Selling
Securityholder has reviewed the Registration
Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
Prospectus), and, to the knowledge of such Selling
Securityholder, the information included therein did
not include any untrue statement of a material fact
or omit to state any material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading. With respect to information regarding
such Selling Securityholder as set forth under the
caption "Principal and Selling Stockholders," such
information is complete and accurate. In the case of
the Selling Securityholders identified in Schedule 1
hereto as Group 2 Selling Securityholders (the "Group
2 Selling Securityholders"), such Selling
Securityholder has reviewed the Registration
Statement and the Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus),
and the information regarding such Selling
Securityholder set forth under the caption "Principal
and Selling Securityholders" is complete and
accurate.
(vi) The Selling Securityholders have not
distributed and, prior to the later of (A) the
Firm Closing Date and (B) the completion of the
distribution of the Securities, will not distribute
any offering material in connection with the offering
and sale of the Securities other than the
Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any
supplement or amendment thereto, or any materials, if
any, permitted by the Act.
(vii) In order to document the
Underwriters' compliance with the reporting and
withholding provisions of the Internal Revenue Code
of 1986, as amended, with respect to the
transactions herein contemplated, such Selling
Securityholder agrees to deliver to the
Representatives prior to or on the Firm Closing Date
a properly completed and executed United States
Treasury Department Form W-8 or W-9 (or other
applicable form or statement specified by the
Treasury Department regulations in lieu thereof).
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(viii) The sale by such Selling
Securityholder of Securities pursuant hereto is not
prompted by any adverse information concerning the
Company that is not set forth in the Registration
Statement or the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary
Prospectus).
(ix) The sale of the Securities to the
Underwriters by such Selling Securityholder pursuant
to this Agreement, the compliance by such Selling
Securityholder with the other provisions of this
Agreement and the Custody Agreement and the
consummation of the other transactions herein
contemplated do not (A) require the consent,
approval, authorization, registration or
qualification of or with any governmental authority,
except such as has been obtained, such as the
registration under state securities or blue sky laws
and, if the registration statement filed with respect
to the Securities (as amended) is not effective under
the Act as of the time of execution hereof, such as
may be required (and shall be obtained as provided in
this Agreement) under the Act and the Securities
Exchange Act of 1934 (the "Exchange Act"), or (B)
conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a
default under any indenture, mortgage, deed of trust,
lease or other material agreement or instrument to
which such Selling Securityholder is a party or by
which such Selling Securityholder or any of such
Selling Securityholder's properties are bound, or any
statute or any judgment, decree, order, rule or
regulation of any court or other governmental
authority or any arbitrator applicable to such
Selling Securityholder.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company at a purchase price of $_______ per share,
the number of Firm Securities set forth opposite the name of such Underwriter
in Schedule 1 hereto. The Firm Securities shall consist of 2,100,000 shares of
Common Stock. The number of Firm Securities to be purchased by each
Underwriter from the Company shall be as nearly as practicable in the same
proportion to the total number of Firm Securities being sold by the Company as
the total number of Firm Securities to be purchased by such Underwriter bears
to the total number of Firm Securities to be purchased by the Underwriters
hereunder. One or more certificates in definitive form for the Firm Securities
that the several Underwriters have agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the
Representatives request upon notice to the Company at least 48 hours prior to
the Firm Closing Date, shall be delivered by or on behalf of the Company to the
Representatives for the respective accounts of the Underwriters, against
payment by or on behalf of the Underwriters of the purchase price therefor by
wire transfer in same-day funds (the "Purchase Funds") to the order of the
Company and the Selling Securityholders, as their interests may appear. Such
delivery of and payment for the Firm Securities shall be made at the offices of
King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000 at 9:30 A.M.,
New York City time, on ____________, 1997; or at such other place, time or date
as the Representatives and the Company may agree upon or as the Representatives
may determine pursuant to Section 9 hereof, such time and
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date of delivery against payment being herein referred to as the "Firm Closing
Date." The Company and the Selling Securityholders will make such certificate
or certificates for the Firm Securities and the Option Securities, as the case
may be, available for checking and packaging by the Representatives at the
offices in New York, New York of the Company's transfer agent or registrar or
of Prudential Securities Incorporated at least 24 hours prior to the Firm
Closing Date or the Option Closing Date, as the case may be.
(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as
contemplated by the Prospectus, the Company and the Selling Securityholders
hereby grant to the several Underwriters an option to purchase, severally and
not jointly, the Option Securities. The purchase price to be paid for any
Option Securities shall be the same price per share as the price per share for
the Firm Securities set forth above in paragraph (a) of this Section 3. The
option granted hereby may be exercised as to all or any part of the Option
Securities from time to time within thirty days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any
of the Option Securities prior to the exercise of such option. The
Representatives may from time to time exercise the option granted hereby by
giving notice in writing or by telephone (confirmed in writing) to the Company
setting forth the aggregate number of Option Securities as to which the several
Underwriters are then exercising the option and the date and time for delivery
of and payment for such Option Securities. Any such date of delivery shall be
determined by the Representatives but shall not be earlier than two business
days or later than five business days after such exercise of the option and,
in any event, shall not be earlier than the Firm Closing Date. The time and
date set forth in such notice, or such other time on such other date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 10 hereof, is herein called the "Option Closing
Date" with respect to such Option Securities. Upon exercise of the option as
provided herein, the Company and the Selling Securityholders shall become
obligated to sell to each of the several Underwriters, and, subject to the
terms and conditions herein set forth, each of the Underwriters (severally and
not jointly) shall become obligated to purchase from the Selling
Securityholders, the same percentage of the total number of the Option
Securities as to which the several Underwriters are then exercising the option
as such Underwriter is obligated to purchase of the aggregate number of Firm
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares. If the option is exercised as to all or
any portion of the Option Securities, one or more certificates in definitive
form for such Option Securities, and payment therefor, shall be delivered on
the related Option Closing Date in the manner, and upon the terms and
conditions, set forth in paragraph (a) of this Section 3 with respect to the
sale of the Firm Securities, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company and each of the Selling Securityholders
hereby acknowledge that the wire transfer by or on behalf of the Underwriters
of the purchase price for any Securities does not constitute closing of a
purchase and sales of the Securities. Only execution and delivery of a receipt
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for Securities by the Underwriters indicates completion of the closing of a
purchase of the Securities from the Company and the Selling Securityholders.
Furthermore, in the event that the Underwriters wire funds to the Company and
the Selling Securityholders prior to the completion of the closing of a
purchase of the Securities, the Company and the Selling Securityholders hereby
acknowledge that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company and the Selling
Securityholders will not be entitled to the Purchase Funds and shall return the
Purchase Funds to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
the Securities is not completed and the Purchase Funds are not returned by the
Company and the Selling Securityholders to the Underwriters on the same day the
Purchase Funds were received by the Company and the Selling Securityholders,
the Company and each of the Selling Securityholders agree to reimburse the
Underwriters for each day the Purchase Funds are not returned, in same-day
funds, interest on the amount of Purchase Funds in an amount equal to each
day's interest, based on an annual interest rate, simple interest, representing
the Underwriters' cost of financing as reasonably determined by Prudential
Securities Incorporated. Upon satisfactory receipt of the Securities by the
Underwriters in accordance with all the terms of this Agreement and the
compliance by the Company and the Selling Securityholders with all the terms of
this Agreement to be performed on or before the Closing Date, the Underwriters
shall execute the receipt described above for the Securities.
(d) It is understood that either of you, individually and
not as one of the Representatives, may (but shall not be obligated to) make
payment on behalf of any Underwriter or Underwriters for any of the Securities
to be purchased by such Underwriter or Underwriters. No such payment shall
relieve such Underwriter or Underwriters from any of its or their obligations
hereunder.
4. Independent Underwriter. (a) The Company hereby confirms its
engagement, without compensation, of the services of Wheat, First Securities,
Inc. as, and Wheat, First Securities, Inc. hereby confirms its agreement with
the Company to render services as, a "qualified independent underwriter" (in
such capacity, the "Independent Underwriter") within the meaning of Rule 2720
of the Conduct Rules ("Rule 2720") of the National Association of Securities
Dealers, Inc. with respect to the offering and sale of the Securities.
(b) The Independent Underwriter hereby represents and warrants to,
and agrees with, the Company, Prudential Securities Incorporated, and the other
Underwriters that with respect to the offering and sale of Securities as
described in the Prospectus:
(i) the Independent Underwriter is a "qualified
independent underwriter" within the meaning of Rule 2720;
(ii) the Independent Underwriter has participated
in the preparation of the Registration Statement and the
Prospectus and has exercised the usual standards of "due diligence"
with respect thereto;
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(iii) the Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act,
including those contained in Section 11 thereof, subject to the
limitations on such liabilities set forth herein (including without
limitation, the nature of Wheat, First Securities Inc.'s underwriting
commitment as several and not joint). It is specifically understood,
however, that Wheat, First Securities, Inc. will bear such legal
responsibilities and liabilities only to the extent, if any, that a
court of competent jurisdiction rules in a judgment which has become
final, and not subject to further appeal, that Wheat, First
Securities, Inc., as Independent Underwriter, bears the legal
responsibilities and liabilities of an "underwriter";
(iv) based upon, among other factors, the information set
forth in the Preliminary Prospectus and its review of such other
documents and the taking of such other actions as the Independent
Underwriter, in its sole discretion, has deemed necessary or
appropriate for the purposes of delivering its recommendation
hereunder, the Independent Underwriter recommends, as of the date of
the execution and delivery of this Agreement, that the public offering
price for the Securities not exceed the amount of $_____________ per
share, which price should in no way be considered or relied upon
except as set forth therein and in the letter referred to in clause
(v) below; and
(v) the Independent Underwriter will furnish to the other
Underwriters on the date hereof a letter, dated the date hereof,
substantially to the effect set forth in Schedule 3 hereto.
(c) The Company, the Independent Underwriter and the other
Underwriters agree to comply in all material respects with all of the
requirements of Rule 2720 applicable to them in connection with the offering
and sale of the Securities. The Company agrees to cooperate with Underwriters
to enable the Underwriters to comply with Rule 2720 and the Independent
Underwriter to perform the services contemplated by this Agreement.
(d) The Independent Underwriter hereby consents to the references
to it as set forth under the caption "Underwriting" in the Prospectus.
5. Offering by the Underwriters. Upon your authorization of the
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
6. Covenants of the Company and the Selling Securityholders.
(a) The Company covenants and agrees with each of the
Underwriters that:
(i) The Company will use its
best efforts to cause the Registration Statement, if
not effective at the time of execution of this
Agreement, and any amendments thereto to become
effective as promptly as possible. If required, the
Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or
supplement thereto
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with the Commission in the manner and within the time
period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to
the Securities is required to be delivered under the
Act, the Company (A) will comply with all
requirements imposed upon it by the Act and the rules
and regulations of the Commission thereunder to the
extent necessary to permit the continuance of sales
of or dealings in the Securities in accordance with
the provisions hereof and of the Prospectus, as then
amended or supplemented, and (B) will not file with
the Commission the Prospectus, Term Sheet or the
amendment referred to in the second sentence of
Section 2(a)(i) hereof, any amendment or supplement
to such Prospectus, Term Sheet or any amendment to
the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives
shall not previously have been advised and furnished
with a copy for a reasonable period of time prior to
the proposed filing and as to which filing the
Representatives shall not have given their consent,
such consent not to be unreasonably withheld. The
Company will prepare and file with the Commission, in
accordance with the rules and regulations of the
Commission, promptly upon request by the
Representatives or counsel for the Underwriters, any
amendments to the Registration Statement or any Rule
462(b) Registration Statement or amendments or
supplements to the Prospectus that may be necessary
or advisable in connection with the distribution of
the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to
the Registration Statement to be declared effective
by the Commission as promptly as possible. The
Company will advise the Representatives, promptly
after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has
been filed or declared effective or the Prospectus or
any amendment or supplement thereto has been filed
and will provide evidence satisfactory to the
Representatives of each such filing or effectiveness.
(ii) The Company will advise the
Representatives, promptly after receiving notice or
obtaining knowledge thereof, of (A) the issuance by
the Commission of any stop order suspending the
effectiveness of the Original Registration Statement
or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or
suspending the use of any Preliminary Prospectus or
the Prospectus or any amendment or supplement
thereto, (B) the suspension of the qualification of
the Securities for offering or sale in any
jurisdiction, (C) the institution, threatening or
contemplation of any proceeding for any such purpose
or (D) any request made by the Commission for
amending the Original Registration Statement or any
Rule 462(b) Registration Statement, for amending or
supplementing the Prospectus or for additional
information. The Company will use its best efforts
to prevent the issuance of any such stop order
and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(iii) The Company will arrange for
the qualification of the Securities for offering and
sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate
and will continue such qualifications in effect for
as long as may be necessary to complete the
distribution of the Securities, provided, however,
that in connection therewith
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the Company shall not be required to qualify as a
foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(iv) If, at any time prior to the
later of (A) the final date when a prospectus
relating to the Securities is required to be
delivered under the Act or (B) the Option Closing
Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would
include any untrue statement of a material fact or
omit to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading, or if for any other reason it is
necessary at any time to amend or supplement the
Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company
will promptly notify the Representatives thereof and,
subject to Section 5(a) hereof, will prepare and file
with the Commission, at the Company's expense, an
amendment to the Registration Statement or an
amendment or supplement to the Prospectus that
corrects such statement or omission or effects such
compliance.
(v) The Company will, without
charge, provide (A) to the Representatives and to
counsel for the Underwriters as many signed copies of
the registration statement originally filed with
respect to the Securities and each amendment thereto
and any Rule 462(b) Registration Statement (in each
case including exhibits thereto) as the
Representatives and counsel to the Underwriters may
reasonably request, (B) to each other Underwriter, a
conformed copy of such Registration Statement and any
Rule 462(b) Registration Statement and each amendment
thereto (in each case without exhibits thereto) and
(C) so long as a prospectus relating to the
Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto as
the Representatives may reasonably request; without
limiting the application of clause (C) of this
sentence, the Company, not later than (1) 6:00 PM,
New York City time, on the date of determination of
the public offering price, if such determination
occurred at or prior to 10:00 AM, New York City time,
on such date or (2) 2:00 PM, New York City time, on
the business day following the date of determination
of the public offering price, if such determination
occurred after 10:00 AM, New York City time, on such
date, will deliver to the Underwriters, without
charge, as many copies of the Prospectus and any
amendment or supplement thereto as the
Representatives may reasonably request for purposes
of confirming orders that are expected to settle on
the Firm Closing Date.
(vi) The Company, as soon
as practicable, will make generally available to its
securityholders and to the Representatives an
earnings statement of the Company that satisfies the
provisions of Section 11(a) of the Act and Rule 158
thereunder.
(vii) The Company will apply the
net proceeds from the sale of the Securities as set
forth under "Use of Proceeds" in the Prospectus.
(viii) The Company will not,
directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on
behalf of the Underwriters, offer, sell, offer to
sell,
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contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce
any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale
or disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or
exercisable for, Common Stock or other stock of the
Company, or any right to purchase or acquire Common
Stock or other capital stock of the Company for a
period of 180 days after the date hereof, except (A)
as otherwise pursuant to this Agreement, (B) for
issuances pursuant to the exercise of employee and
affiliated professional stock options outstanding on
the date hereof, issuances pursuant to the exercise
of stock options granted hereafter pursuant to the
Company's 1996 Incentive Plan and Affiliated
Professionals Stock Plan so long as such options are
not exercised within 180 days after the date hereof,
and except that the Company may file registration
statements at any time after the date hereof related
to the resale of such shares of the Company's Common
Stock issued pursuant to the Company's 1996 Incentive
Plan and the Affiliated Professionals Stock Plan, (C)
issuances pursuant to the exercise of warrants
outstanding on the date hereof, or (D) in connection
with acquisitions by the Company, provided that any
Common Stock so issued shall not be transferable by
the recipient thereof for a period of 180 days after
the date hereof.
(ix) The Company will not,
directly or indirectly, (A) take any action designed
to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any
security of the Company to facilitate the sale or
resale of the Securities or (B) (I) sell, bid for,
purchase, or pay anyone any compensation for
soliciting purchases of, the Securities or (II) pay
or agree to pay to any person any compensation for
soliciting another to purchase any other securities
of the Company except for the sale of Securities by
the Selling Securityholders under this Agreement.
(x) The Company, during the
period when the Prospectus is required to be
delivered under the Act or the Exchange Act, will
file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the
Exchange Act and the rules and regulations
thereunder.
(xi) The Company will cause the
Securities to be duly included for quotation on The
Nasdaq Stock Market's National Market (the "Nasdaq
Stock Market") prior to the Firm Closing Date. The
Company will use it best efforts to ensure that the
Securities remain included for quotation on the
Nasdaq Stock Market following the Firm Closing Date.
(xii) During a period of five
years from the effective date of the Registration
Statement, the Company will furnish to you and, upon
request, to each of the other Underwriters, without
charge, (A) copies of all reports or other
communications (financial or other) furnished to
securityholders, (B) as soon as they are available,
copies of any reports and financial statements
furnished to or filed with the Commission or any
national securities
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exchange, and (C) such additional publicly available
information concerning the business and financial
condition of the Company, if any, as you may
reasonably request.
(xiii) If at any time during the
25-day period after the Registration Statement
becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event
relating to or affecting the Company shall occur as a
result of which in your opinion the market price of
the Common Stock has been or is likely to be
materially affected (regardless of whether such
rumor, publication or event necessitates a supplement
to or amendment of the Prospectus), the Company will,
after written notice from you advising the Company to
the effect set forth above, to the extent consistent
with the Act and the rules and regulations
thereunder, prepare, consult with you concerning the
substance of, and disseminate a press release or
other public statement (unless counsel for the
Company provides a written opinion that such press
release or public statement is inconsistent with the
Act) reasonably satisfactory to you, responding to or
commenting on such rumor, publication or event.
(xiv) If the Company elects to
rely on Rule 462(b), the Company shall both file a
Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the
applicable fees in accordance with Rule 111
promulgated under the Act by the earlier of (i) 10:00
P.M. New York City time on the date of this Agreement
and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(xv) The Company will obtain the
agreements described in Section 8(h) hereof prior to
the Firm Closing Date.
(b) Each Selling Securityholder
covenants and agrees with each of the Underwriters that:
(i) Such Selling Securityholder
will not, directly or indirectly, (A) take any action
designed to cause or to result in, or that has
constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate
the sale or resale of the Securities or (B) (I) sell,
bid for, purchase, or pay anyone any compensation for
soliciting purchases of, the Securities or (II) pay
or agree to pay to any person any compensation for
soliciting another to purchase any other securities
of the Company (except for the sale of Securities by
the Selling Securityholder under this Agreement).
(ii) Such Selling Securityholder
will not, directly or indirectly, without the prior
written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer,
sell, offer to sell, contract to sell, grant any
option to purchase or otherwise sell or dispose (or
announce any offer, sale, offer of sale, contract of
sale, grant of any option to purchase or other sale
or disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or
exercisable for, Common Stock or other stock of the
Company, or any right to purchase or acquire Common
Stock or other capital stock of the Company for a
period of 180 days after the date hereof, except
pursuant to this Agreement; provided,
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however, that the such Selling Securityholders may
make bona fide gifts to donees who agree to be
bound by the restrictions described in this paragraph
6(b)(ii).
7. Expenses. The Company will pay all costs and expenses
incident to the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 13 hereof, including all costs and expenses incident to (a) the
printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed
with respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (b)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (c) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (d)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees and
the Custodian's fees, (e) the qualification of the Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (f) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Securities, (g) any quotation of the Securities on the Nasdaq Stock Market
and (h) the expenses of the Company in connection with any meetings with
prospective investors in the Securities. To the extent, if at all, that any of
the Selling Securityholders engage special legal counsel to represent them in
connection with this offering, other than counsel to the Company, the fees and
expenses of such counsel shall be borne by such Selling Securityholders. Any
transfer taxes imposed on the sale of the Securities to the several
Underwriters will be paid by the Company and the Selling Securityholders pro
rata. If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 8 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 13(a)(i) and (a)(ii) hereof or because of any failure,
refusal or inability on the part of the Company or any Selling Securityholder
to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company shall not in any
event be liable to any of the Underwriters for the loss of anticipated profits
from the transactions covered by this Agreement.
8. Conditions of the Underwriters' Obligations. The obligations
of the several Underwriters to purchase and pay for the Firm Securities shall
be subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Securityholders
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers and the Selling Securityholders made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Securityholders of their respective covenants and agreements hereunder and to
the following additional conditions:
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(a) If the Original Registration Statement or any
amendment thereto filed prior to the Firm Closing Date has not been declared
effective as of the time of execution hereof, the Original Registration
Statement or such amendment and, if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have been declared
effective not later than the earlier of (i) 11:00 A.M., New York City time, on
the date on which the amendment to the registration statement originally filed
with respect to the Securities or to the Registration Statement, as the case
may be, containing information regarding the initial public offering price of
the Securities has been filed with the Commission and (ii) the time
confirmations are sent or given as specified by Rule 462(b)(2) or, with respect
to the Original Registration Statement, such later time and date as shall have
been consented to by the Representatives; if required, the Prospectus or any
Term Sheet that constitutes a part thereof and any amendment or supplement
thereto shall have been filed with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion,
dated the Firm Closing Date, of Xxxxxxxx, Loop & Xxxxxxxx, counsel for the
Company, to the effect that:
(i) the Company, each of its
subsidiaries and, to such counsel's knowledge, each
Eye Care Entity have been duly organized and are
validly existing as corporations in good standing
under the laws of their respective jurisdictions of
incorporation and are duly qualified to transact
business as foreign corporations and are in good
standing under the laws of all other jurisdictions
where the ownership or leasing of their respective
properties or the conduct of their respective
businesses requires such qualification, except where
the failure to be so qualified does not amount to a
material liability or disability to the Company or
any of its subsidiaries;
(ii) the Company, each of its
subsidiaries and, to such counsel's knowledge, each
Eye Care Entity have corporate power to own or lease
their respective properties and conduct their
respective businesses as described in the
Registration Statement and the Prospectus, and
the Company has corporate power to enter into this
Agreement and to carry out all the terms and
provisions hereof to be carried out by it;
(iii) the issued shares of capital
stock of each of the Company's subsidiaries have been
duly authorized and validly issued, are fully paid
and nonassessable and are owned beneficially by the
Company free and clear of any security interests,
liens, encumbrances, equities or claims;
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(iv) the Company has an
authorized, issued and outstanding capitalization as
set forth in the Prospectus; all of the issued shares
of capital stock of the Company have been duly
authorized and validly issued and are fully paid and
nonassessable and were not issued in violation of or
subject to any preemptive rights or, to the best
knowledge of such counsel, other rights to subscribe
for or purchase securities; the Firm Securities have
been duly authorized by all necessary corporate
action of the Company and, when issued and delivered
to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and
nonassessable; the Firm Securities have been duly
included for quotation on the Nasdaq National Market;
no holders of outstanding shares of capital stock of
the Company are entitled as such to any preemptive
or, to the best knowledge of such counsel, to other
rights to subscribe for any of the Securities; and,
to the best knowledge of such counsel, except as
described in the Registration Statement and the
Prospectus, no holders of securities of the Company
are entitled to have such securities registered under
the Registration Statement;
(v) the statements set forth
under the heading "Description of Capital Stock" in
the Prospectus, insofar as such statements purport to
summarize the material provisions of the capital
stock of the Company, provide a summary of such
material provisions to the extent required by the
Act, and the statements set forth under the headings
"Business - Management Agreements," "Business -
Governmental Regulations" and "Certain Transactions"
in the Prospectus, insofar as such statements
constitute a summary of the agreements and matters
referred to therein, provide a summary of such
agreements and matters to the extent required by the
Act;
(vi) the execution and delivery
of this Agreement have been duly authorized by all
necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the
Company;
(vii) (A) to the best knowledge of
such counsel, no legal or governmental proceedings
are pending to which the Company, any of its
subsidiaries or any of the Eye Care Entities is a
party or to which the property of the Company, any of
its subsidiaries or any of the Eye Care Entities is
subject that are required to be described in the
Registration Statement or the Prospectus and are not
described therein, and, to the best knowledge of such
counsel, no such proceedings have been threatened
against the Company, any of its subsidiaries or any
of the Eye Care Entities or with respect to any of
their respective properties and (B) such counsel does
not know of any contract or other document of a
character that is required to be described in the
Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement
that is not described therein or filed as required;
(viii) the issuance, offering and
sale of the Securities to the Underwriters by the
Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this
Agreement and the consummation of the other
transactions herein contemplated do not (A) require
the consent, approval, authorization, registration or
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qualification of or with any governmental authority,
except such as have been obtained and such as may be
required under state securities or blue sky laws, or
(B) conflict with or result in a breach or violation
of any of the terms and provisions of, or constitute
a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument known
to such counsel to which the Company is a party or by
which the Company or any of its properties are bound,
or the charter documents or by-laws of the Company,
or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental
authority or any arbitrator known to such counsel and
applicable to the Company, subject to applicable
bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to
enforceability, to general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law);
(ix) the Registration Statement
is effective under the Act; any required filing of
the Prospectus or any Term Sheet that constitutes a
part thereof pursuant to Rules 434 and 424(b) has
been made in the manner and within the time period
required by Rules 434 and 424(b); and, to the best
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or
any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or
threatened or are contemplated by the Commission;
(x) The Original Registration
Statement filed with respect to the Securities and
each subsequent amendment thereto and the Prospectus
(in each case, other than the financial statements
and other financial information and schedules
contained therein, as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the Act
and the rules and regulations of the Commission
thereunder;
(xi) to the best knowledge of
such counsel, the Company, each of its subsidiaries,
the Affiliated Providers and the Eye Care Entities
possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their
respective businesses, and, to the best knowledge of
such counsel, the Company has not received any notice
of proceedings relating to the revocation or
modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in
the condition (financial or otherwise), business
prospects, net worth or results of operations of
the Company, except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus);
(xii) the Company is not an
"investment company" under the Investment Company Act
of 1940, as amended, and consummation of the
transactions herein contemplated will not cause the
Company to become an investment company subject to
registration under such Act;
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(xiii) to the best knowledge of
such counsel, the Company does not own any shares of
stock or any other equity securities of any
corporation or have any equity interest in any firm,
partnership, association or other entity, except as
described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most
recent Preliminary Prospectus);
(xiv) to the best knowledge of
such counsel, all offers and sales of the Company's
capital stock prior to the date hereof, including
without limitation all offers and sales in connection
with the 1996 Acquisitions, the Pinellas Acquisition
and the Recent Acquisitions, were at all relevant
times exempt from the registration requirements of
the Act, and were the subject of an available
exemption from the registration requirements of all
applicable state securities or blue sky laws;
(xv) each of the agreements
providing for a transaction that is part of the 1996
Acquisitions, the Pinellas Acquisition and the Recent
Acquisitions has been duly authorized, executed and
delivered by the Company and, to the best knowledge
of such counsel, constitutes the valid and legally
binding obligation of each of the other parties
thereto; to such counsel's knowledge, are no
statutory or contractual rights of dissent or
appraisal with respect to the transfer of any of the
properties in the 1996 Acquisitions, the Pinellas
Acquisition and the Recent Acquisitions; and the 1996
Acquisitions, the Pinellas Acquisition and the Recent
Acquisitions conformed in all material respects to
the extent required by the Act to the description
thereof contained in the Registration Statement; and
(xvi) to the best knowledge of
such counsel, except as disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), there are no
outstanding (A) securities or obligations of the
Company convertible into or exchangeable for any
capital stock of the Company, (B) warrants, rights or
options to subscribe for or purchase from the Company
any such capital stock or any such convertible or
exchangeable securities or obligations, or (C)
obligations of the Company to issue any shares of
capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants,
rights or options.
Such counsel shall also state that (other than as to the
financial statements and information and related schedules therein, as
to which such counsel shall express no opinion) they have no reason to
believe (A) that the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading and (B) that the Prospectus, as
of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Such counsel shall also state that no facts have come to
their attention that cause them to believe that the Company and the
Eye Care Entities are not conducting their respective business in
material compliance with the laws, rules and regulations applicable
thereto, including, without limitation, those relating to the practice
of optometry and
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ophthalmology (including the management or operation of eye care
centers), the splitting of professional fees with non-optometrists or
non-ophthalmologists, the ownership or control of the assets of an eye
care practice, the employment of optometrists or ophthalmologists or
other personnel, the content of advertising, limitations on tasks that
may be delegated by any optometrist or ophthalmologist to other staff
members, the business of insurance and reimbursement by governmental
agencies; and nothing has come to their attention that causes them to
believe that the provisions of the service, consulting and management
agreements and other business arrangements entered into by the Company
described in the Prospectus, or the operations of the Company in
accordance with the terms thereof, are not in material compliance with
applicable laws and governmental regulations.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public
officials.
References to the Registration Statement and the Prospectus in
this paragraph (b) shall include any amendment or supplement thereto
at the date of such opinion.
(c) The Representatives shall have received an opinion,
dated the Option Closing Date of counsel for the Selling Securityholders, to
the effect that:
(i) each Selling Securityholder
has full power (partnership, trust or other) to enter
into this Agreement, the Custody Agreement and the
Power of Attorney and to sell, assign, transfer and
deliver to the Underwriters the Securities to be sold
by such Selling Securityholder hereunder in
accordance with the terms of this Agreement, and to
perform his or its obligations under the Custody
Agreement; the execution and delivery of this
Agreement, the Custody Agreement and the Power of
Attorney have been duly authorized by all necessary
action (partnership, trust or other) of each Selling
Securityholder; this Agreement, the Custody Agreement
and the Power of Attorney have been executed and
delivered by such Selling Securityholder; this
Agreement and, assuming due authorization, execution
and delivery by the Custodian, the Custody Agreement
and the Power of Attorney, are the legal, valid,
binding and enforceable instruments of such Selling
Securityholder, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability,
to general principles of equity (regardless of
whether enforcement is sought in a proceeding in
equity or at law);
(ii) the delivery by such Selling
Securityholder to the Underwriters of certificates
for the Securities being sold hereunder by such
Selling Securityholder against payment therefor as
provided herein, will convey good and marketable
title to such Securities to the several Underwriters,
free and clear of any security interests, liens,
encumbrances, equities, claims or other defects; and
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(iii) The sale of the Securities
to the Underwriters by such Selling Securityholder
pursuant to this Agreement, the compliance by such
Selling Securityholder with the other provisions of
this Agreement and the Custody Agreement and the
consummation of the other transactions herein
contemplated do not (A) require the consent,
approval, authorization, registration or
qualification of or with any governmental authority,
except such as has been obtained, and except such as
may be required for registration under state
securities or blue sky laws and, if the registration
statement filed with respect to the Securities (as
amended) is not effective under the Act as of the
time of execution hereof, such as may be required
(and shall be obtained as provided in this Agreement)
under the Act and the Exchange Act, or (B) conflict
with or result in a breach or violation of any of the
terms and provisions of, or constitute a default
under any indenture, mortgage, deed of trust, lease
or other agreement or instrument known to such
counsel to which such Selling Securityholder is a
party or by which such Selling Securityholder or any
of such Selling Securityholder's properties are
bound, or any statute or any judgment, decree, order,
rule or regulation known to such counsel of any court
or other governmental authority or any arbitrator
applicable to such Selling Securityholder.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of the Selling Securityholders, responsible officers of
the Company and public officials.
References to the Registration Statement and the Prospectus in
this paragraph (c) shall include any amendment or supplement thereto
at the date of such opinion.
(d) The Representatives shall have received an opinion,
dated the Firm Closing Date, of King & Spalding, counsel for the Underwriters,
with respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(e) The Representatives shall have received from Ernst &
Young LLP a letter or letters dated, respectively, the date hereof and the Firm
Closing Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) they are independent
accountants with respect to the Company within the
meaning of the Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the
audited financial statements and schedules of the
Company included in the Registration Statement and
the Prospectus comply in form in all material
respects with the applicable accounting
requirements of the Act and the related published
rules and regulations;
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(iii) on the basis of their
limited review in accordance with standards
established by the American Institute of Certified
Public Accountants of any interim unaudited
financial statements of the Company included in
the Registration Statement and the Prospectus,
carrying out certain specified procedures (which
do not constitute an examination made in
accordance with generally accepted auditing
standards) that would not necessarily reveal
matters of significance with respect to the
comments set forth in this paragraph (iii), a
reading of the minute books of the stockholders,
the board of directors and any committees thereof
of the Company, officials of the Company, and
inquiries of certain officials of the Company who
have responsibility for financial and accounting
matters, nothing came to their attention that
caused them to believe that:
(A) the unaudited
financial statements of the Company
included in the Registration
Statement and the Prospectus do not
comply in form in all material
respects with the applicable
accounting requirements of the Act
and the related published rules and
regulations thereunder or are not in
conformity with generally accepted
accounting principles applied on a
basis substantially consistent with
that of the audited financial
statements included in the
Registration Statement and the
Prospectus;
(B) at a specific date not
more than five business days prior
to the date of such letter, there
was any change in long-term debt of
the Company or any decreases in net
current assets or stockholders'
equity of the Company, in each case
compared with amounts shown on the
___________ unaudited consolidated
balance sheet included in the
Registration Statement and the
Prospectus, or for the period from
___________ to such specified date
there were any decreases, as
compared with the prior comparable
period, in net revenues, income
before income taxes or net income of
the Company, except in all instances
for changes, decreases or increases
set forth in such letter;
(iv) they have carried out
certain specified procedures (as requested by the
Representatives), not constituting an audit, with
respect to certain amounts, percentages and
financial information that are derived from the
general accounting records of the Company and are
included in the Registration Statement and the
Prospectus, and have compared such amounts,
percentages and financial information with such
records of the Company or with information
derived from such records and agreement, excluding
any questions of legal interpretation; and
(v) on the basis of a reading of
the unaudited pro forma financial data included in
the Registration Statement and the Prospectus,
carrying out certain specified procedures that
would not necessarily reveal matters of
significance with respect to the comments set
forth in this paragraph (v), inquiries of certain
officials of the Company who have responsibility
for financial and accounting matters and proving
the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in
the unaudited pro forma
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financial data, nothing came to their attention that
caused them to believe that the unaudited pro
forma financial data do not comply in form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly
applied to the historical amounts in the compilation
of such data.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that (A) such letters shall be
accompanied by a written explanation from the Company as to the
significance thereof, unless the Representatives deem such explanation
unnecessary, and (B) such changes, decreases or increases do not, in
the sole judgment of the Representatives, make it impractical or
inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended
as of the date hereof.
References to the Registration Statement and the Prospectus in
this paragraph (f) with respect to either letter referred to above
shall include any amendment or supplement thereto at the date of such
letter.
(f) The Representatives shall have received a
certificate, dated the Firm Closing Date, of the principal executive officer
and the principal financial or accounting officer of the Company to the effect
that:
(i) the representations and
warranties of the Company in this Agreement are true
and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of
the Firm Closing Date, does not include any untrue
statement of a material fact or omit to state any
material fact necessary to make the statements
therein not misleading, and the Prospectus, as
amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material
fact or omit to state any material fact necessary in
order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and the Company has performed all
covenants and agreements and satisfied all conditions
on its part to be performed or satisfied at or prior
to the Firm Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings
for that purpose have been instituted or
threatened or, to the best of the Company's
knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective
dates as of which information is given in the
Registration Statement and the Prospectus, the
Company has not sustained any material loss or
interference with its businesses or properties from
fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any
labor dispute or any legal or governmental
proceeding, and there has not been any material
adverse change, or any development involving a
prospective material adverse change, in the condition
(financial or otherwise), management, business
prospects, net worth or results of operations of the
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Company, except as described in or contemplated by
the Prospectus (exclusive of any amendment or
supplement thereto).
(g) The Representatives shall have received a certificate
from each Selling Securityholder, dated the Option Closing Date, to the effect
that:
(i) the representations and
warranties of such Selling Securityholder in this
Agreement are true and correct as if made on and as
of the Firm Closing Date;
(ii) such Selling Securityholder
has performed all covenants and agreements on his or
its part to be performed or satisfied at or prior to
the Firm Closing Date.
(h) The Representatives shall have received from (i) each
person who is a director or officer of the Company and (ii) each Selling
Securityholder an agreement to the effect that such person or entity will not,
directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, pledge, offer of sale, contract of
sale, grant of an option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock or other capital stock of the Company,
or any right to purchase or acquire Common Stock or other capital stock of the
Company for a period of 180 days after the date of this Agreement, except for
bona fide gifts or transfers effected by such stockholders other than on any
securities exchange or in the over-the-counter market to donees or transferees
that agree to be bound by similar agreements.
(i) On or before the Firm Closing Date, the
Representatives and counsel for the Underwriters shall have received such
further certificates, documents or other information as they may have
reasonably requested from the Company.
(j) Prior to the commencement of the offering of the
Securities, the Securities shall have been included for trading on the Nasdaq
Stock Market.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
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9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person 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:
(i) any untrue statement or
alleged untrue statement made by the Company in
Section 2 of this Agreement,
(ii) any untrue statement or
alleged untrue statement of any material fact
contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto or
(B) any application or other document, or any
amendment or supplement thereto, executed by the
Company or based upon written information furnished
by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under
the securities or blue sky laws thereof or filed with
the Commission or any securities association or
securities exchange (each an "Application"),
(iii) the omission or alleged
omission to state in the Registration Statement or
any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement
thereto, or any Application a material fact required
to be stated therein or necessary to make the
statements therein not misleading, or
(iv) any untrue statement or
alleged untrue statement of any material fact
contained in any audio or visual materials derived
solely from information supplied by the Company to be
used in connection with the marketing of the
Securities, including without limitations, slides,
videos, films and tape recordings,
and will reimburse, as incurred, each Underwriter and
each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or
such controlling person in connection with
investigating, defending against or appearing as a
third-party witness in connection with any such loss,
claim, damage, liability or action; provided, however,
that the Company will 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 any untrue
statement or alleged untrue statement or omission or
alleged omission made in such registration statement
or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto
or any Application in reliance upon and in conformity
with written information furnished to the Company by
such Underwriter through the Representatives
specifically for use therein; and provided, further,
that the Company will not be liable to any Underwriter
or any person controlling such Underwriter with
respect to any such untrue statement or omission made
in any Preliminary Prospectus that is corrected in the
Prospectus (or any amendment or
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33
supplement thereto) if the person asserting any such
loss, claim, damage or liability purchased
Securities from such Underwriter but was not sent or
given a copy of the Prospectus (as amended or
supplemented) at or prior to the written confirmation
of the sale of such Securities to such person in any
case where such delivery of the Prospectus (as
amended or supplemented) is required by the Act,
unless such failure to deliver the Prospectus (as
amended or supplemented) was a result of
noncompliance by the Company with Section 6(a)(iv) of
this Agreement. This indemnity agreement will be in
addition to any liability which the Company and such
Selling Securityholders may otherwise have. The
Company will not, without the prior written consent
of the Underwriter or Underwriters purchasing, in the
aggregate, more than fifty percent of the Securities,
settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action,
suit or proceeding in respect of which
indemnification may be sought hereunder (whether or
not any such Underwriter or any person who controls
any such Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent
includes an unconditional release of all of the
Underwriters and such controlling persons from all
liability arising out of such claim, action, suit or
proceeding.
(b) Subject to subsection (g) of this Section, each Selling
Securityholder agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of Section 15 of the
Act against any such losses, claims, damages or liabilities to which such
Underwriter or any such controlling person 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:
(i) any untrue statement or alleged untrue
statement made by such Selling Securityholder in
Section 2 of this Agreement;
(ii) any untrue statement or alleged untrue
statement of any material fact contained in the
Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto; or
(iii) the omission or the alleged omission
to state therein a material fact required to be
stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or
any Application or necessary to make the statements
therein not misleading;
provided, however, that the Selling Securityholders
will 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 any untrue statement or
alleged untrue statement or omission or alleged
omission made in such registration statement or any
amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or
any Application in reliance upon and in conformity
with written information furnished to the Company by
such Underwriter through
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34
the Representatives specifically for use therein; and
provided, further, that the Selling Securityholders
will not be liable to any Underwriter or any person
controlling such Underwriter with respect to any
such untrue statement or omission made in any
Preliminary Prospectus that is corrected in the
Prospectus (or any amendment or supplement thereto)
if the person asserting any such loss, claim, damage
or liability purchased Securities from such
Underwriter but was not sent or given a copy of the
Prospectus (as amended or supplemented) at or prior
to the written confirmation of the sale of such
Securities to such person in any case where such
delivery of the Prospectus (as amended or
supplemented) is required by the Act, unless such
failure to deliver the Prospectus (as amended or
supplemented) was a result of noncompliance by the
Company with Section 6(a)(iv) of this Agreement ;
provided, further, however, that in the case of (i),
(ii) and (iii) above for the Group 2 Selling
Securityholders, to the extent and only to the extent
that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
reliance upon and in conformity with written
information furnished to the Company by such Group 2
Selling Securityholder. This indemnity agreement
will be in addition to any liability which the
Selling Securityholders may otherwise have. The
Selling Securityholders will not, without the prior
written consent of the Underwriters purchasing
greater than fifty percent of the Securities, settle
or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be
sought hereunder (whether or not such Underwriter or
any person who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the
Exchange Act is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the
Underwriters and each such controlling person from
all liability arising out of such claim, action, suit
or proceeding.
(c) The Company also agrees to indemnify and hold harmless Wheat,
First Securities, Inc. and each person, if any, who controls Wheat, First
Securities, Inc. within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments incurred as a result of Wheat, First
Securities, Inc.'s participation as a "qualified independent underwriter"
within the meaning of Rule 2720 in connection with the offering of the
Securities, except for any losses, claims, damages, liabilities and judgments
resulting from Wheat, First Securities, Inc.'s, or such controlling person's,
willful misconduct or gross negligence.
(d) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Securityholder and each person,
if any, who controls the Company or any Selling Securityholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Company, any such director
or officer of the Company, such Selling Securityholder or any such controlling
person of the Company or such Selling Securityholder 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 (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or
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35
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or any Application
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein; and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person or such Selling
Securityholder in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(e) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 9. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in
any one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
9, representing the indemnified parties under such paragraph (a) who are
parties to such action or actions) or (ii) the indemnifying party does not
promptly retain counsel satisfactory to the indemnified party or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying
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36
party to such indemnified party, the indemnifying party will not be liable for
the costs and expenses of any settlement of such action effected by such
indemnified party without the consent of the indemnifying party.
(f) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Securityholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Company and the Selling
Securityholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault of the parties 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, the
Selling Securityholders or the Underwriters, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in
the circumstances. The Company, the Selling Securityholders and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (f). Notwithstanding any
other provision of this paragraph (f), no Underwriter shall be obligated to
make contributions hereunder that in the aggregate exceed the total public
offering price of the Securities purchased by such Underwriter under this
Agreement, less the aggregate amount of any damages that such Underwriter has
otherwise been required to pay in respect of the same or any substantially
similar claim, and 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 to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions
among Underwriters shall be governed by the provisions of the Prudential
Securities Incorporated Master Agreement Among Underwriters. For purposes of
this paragraph (f), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each person, if any, who controls the Company or any
36
37
Selling Securityholder within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, shall have the same rights to contribution as the
Company or such Selling Securityholder, as the case may be.
(g) The liability of each Selling Securityholder under the
representations and warranties contained in Sections 2 and 3 hereof and under
the indemnity and contribution agreements contained in the provisions of this
Section 9 shall be limited to an amount equal to the public offering price of
the Securities to be sold by such Selling Securityholder to the Underwriters
minus the amount of the underwriting discount paid thereon to the Underwriters
by such Selling Securityholder; provided however, that no Selling
Securityholder shall be required to provide payment under the indemnity
agreements contained in the provisions of this Section 9 until the Underwriter
or controlling person seeking indemnification shall have first made a demand
for payment on the Company with respect to any such loss, claim, damage,
liability or expense and the Company shall have failed to make such requested
payment within 30 days after receipt thereof. The Company and such Selling
Securityholder may agree, as among themselves and without limiting the rights
of the Underwriters under this Agreement, as to the respective amounts of such
liability for which they each shall be responsible.
10. Default of Underwriters. If one or more Underwriters default
in their obligations to purchase Firm Securities or Option Securities hereunder
and the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or
Option Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase. If one or more Underwriters so default with respect to an
aggregate number of Securities that is more than ten percent of the aggregate
number of Firm Securities or Option Securities, as the case may be, to be
purchased by all of the Underwriters at such time hereunder, and if
arrangements satisfactory to the Representatives are not made within 36 hours
after such default for the purchase by other persons (who may include one or
more of the non-defaulting Underwriters, including the Representatives) of the
Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or
the Company other than as provided in Section 11 hereof if the default is with
respect to the Firm Closing Date and without liability for the Option Shares if
such default is with respect to the Option Closing Date. In the event of any
default by one or more Underwriters as described in this Section 10, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary
changes may be made in the arrangements or documents for the purchase and
delivery of the Firm Securities or Option Securities, as the case may be. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter
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38
under this Section 10. Nothing herein shall relieve any defaulting Underwriter
from liability for its default.
11. Default by Selling Securityholders. If on the Option Closing
Date any Selling Securityholder fails to sell the Option Securities, which such
Selling Securityholder has agreed to sell on such date as set forth herein, the
Company agrees that it will sell that number of shares of Common Stock to the
Underwriters which represents the Option Securities which such Selling
Securityholder has failed to so sell, or such lesser number as may be requested
by you.
12. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company and its
officers, the Selling Securityholders and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Selling Securityholders, any Underwriter or any controlling
person referred to in Section 9 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 7 and 9 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
13. Termination.
(a) This Agreement may be terminated with respect to the
Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company or the Selling Securityholders given
prior to the Firm Closing Date or the related Option Closing Date,
respectively, in the event that the Company or the Selling Securityholder shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing
Date, respectively,
(i) the Company shall have, in
the sole judgment of the Representatives, sustained
any material loss or interference with its business
or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or
governmental proceeding or there shall have been any
material adverse change, or any development involving
a prospective material adverse change (including
without limitation a change in management or control
of the Company), in the condition (financial or
otherwise), business prospects, net worth or results
of operations of the Company, except as described in
or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto);
(ii) trading in the Common Stock
shall have been suspended by the Commission or the
Nasdaq Stock Market;
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39
(iii) trading in securities
generally on the New York Stock Exchange or the
Nasdaq Stock Market shall have been suspended or
minimum or maximum prices shall have been established
on any such exchange or market system;
(iv) a banking moratorium shall
have been declared by New York or United States
authorities; or
(v) there shall have been (A) an
outbreak or escalation of hostilities between the
United States and any foreign power, (B) an outbreak
or escalation of any other insurrection or armed
conflict involving the United States or (C) any other
calamity or crisis or material adverse change in
general economic, political or financial conditions
having an effect on the United States financial
markets that, in the sole judgment of the
Representatives, makes it impractical or inadvisable
to proceed with the public offering or the delivery
of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this
Section 13 shall be without liability of any party to any other party except as
provided in Section 12 hereof.
14. Information Supplied by Underwriters. The statements set
forth in the last paragraph on the front cover page and in the first and third
paragraphs under the heading "Underwriting" in any Preliminary Prospectus or
the Prospectus (to the extent such statements relate to the Underwriters)
constitute the only information furnished by any Underwriter through the
Representatives to the Company for the purposes of Sections 2(a)(ii) and 9
hereof. The Underwriters confirm that such statements (to such extent) are
correct.
15. Notices. All communications hereunder shall be in writing
and, if sent to any of the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to Prudential
Securities Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Equity Transactions Group; if sent to the Company, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Company at 0000 Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxxxx X. Xxxxxxxx, with a copy to Xxxxxxxx, Loop & Xxxxxxxx, 000
X. Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, Esq.; if sent to the Selling Securityholders
shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to Xxxxxxxx Xxxxxxxx, as Attorney-in-Fact c/o the Company
at 0000 Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx 00000, with a copy to Xxxxxxxx, Loop &
Xxxxxxxx, 000 X. Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx
00000, Attention: Xxxxxxx X. Xxxxx, Esq..
16. Successors. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Company, the Selling
Securityholders and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and
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40
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company and the Selling Securityholders contained in
Section 9 of this Agreement shall also be for the benefit of any person or
persons who control any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act and (ii) the indemnities of the Underwriters
contained in Section 9 of this Agreement shall also be for the benefit of the
directors of the Company, the officers of the Company who have signed the
Registration Statement and any person or persons who control the Company or the
Selling Securityholders within the meaning of Section 15 of the Act or Section
20 of the Exchange Act. No purchaser of Securities from any Underwriter shall
be deemed a successor because of such purchase.
17. Applicable Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, each
Selling Securityholder and each of the several Underwriters.
Very truly yours,
VISION TWENTY-ONE, INC.
By:_____________________________________
Xxxxxxxx X. Xxxxxxxx
Chief Executive Officer
SELLING SECURITYHOLDERS
By:_____________________________________
______________, as
attorney-in-fact for the
Selling Securityholders
listed in Schedule 2
attached hereto
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
PRUDENTIAL SECURITIES INCORPORATED
WHEAT, FIRST SECURITIES, INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By: ____________________________________
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
WHEAT, FIRST SECURITIES, INC.,
as Independent Underwriter
By: ____________________________________
Name:_______________________________
Title:______________________________
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42
SCHEDULE 1
UNDERWRITERS
Number of
Firm
Securities to
Underwriter be Purchased
------------ -------------------
Prudential Securities Incorporated . . . . . . . . . . . . . . . . . . . . . .
Wheat, First Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,100,000
---------
43
SCHEDULE 2
SELLING SECURITYHOLDERS
Number of
Option
Securities to
Selling Securityholders be Purchased
----------------------- ------------
Group 1 Selling Securityholders
Xxxxxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . 12,000
Xxxxxxx Family Limited Partnership . . . . . . . . . . . . . . 12,000
Xxxxxxx X. Xxxxxxxxx . . . . . . . . . . . . . . . . . . . . . 23,169
Xxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . 13,523
-------
Total Group 1 . . . . . . . . . . . . . . . . . . . . . . 60,692
=======
Group 2 Selling Securityholders
Xxxxxx Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . 3,875
Xxxxxx Xxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . 4,119
Xxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . 8,237
Xxxxxx Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . . 6,470
Xxxxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . 8,586
Xxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . 15,599
Xxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . 3,635
Xxxx Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . 2,397
Xxxxxx Xxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . 1,053
Xxxxxxx X. Short . . . . . . . . . . . . . . . . . . . . . . . 12,854
Xxxxx Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . 26,383
Xxxx X. Xxxx . . . . . . . . . . . . . . . . . . . . . . . . . 7,755
Xx Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . 2,105
Xxxx Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . 1,525
Xxxxxxxx Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . 958
ACFS Limited Partnership . . . . . . . . . . . . . . . . . . . 15,511
------
Total Group 2 . . . . . . . . . . . . . . . . . . . . . . 181,724
=======
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242,416
=======
44
SCHEDULE 3
FORM OF PRICING OPINION
[WHEAT FIRST LETTERHEAD]
July __, 1997
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Vision Twenty-One, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Re: Pricing Opinion
Ladies and Gentlemen:
Vision Twenty-One, Inc., a Florida corporation (the "Company"), has
filed with the Securities and Exchange Commission a registration statement on
Form S-1 (Reg. No. _ 333-29213) (the "Registration Statement") and a prospectus
(the "Prospectus") relating to the offering of 2,415,000 shares of common stock
(which includes up to 315,000 shares of common stock subject to the
underwriters' over-allotment option), par value $.001 per share (the "Common
Stock").
Wheat, First Securities, Inc. is acting as one of the several
underwriters of the offering to the public of the Common Stock (the
"Offering"). The Prudential Securities Group, Inc. ("PSG"), an affiliate of
Prudential Securities Incorporated, one of the several underwriters' of the
Offering, holds warrants, constituting an approximately ____% interest in the
Company's Common Stock (assuming conversion of the warrants prior to the
Offering), holds Promissory Notes of the Company constituting more than 10% of
the Company's subordinated debt and will receive more than 10% of the net
proceeds of the Offering through the repayment of a Promissory Note.
Under the Conduct Rules of the National Association of Securities
Dealers, Inc. ("NASD"), due to the PSG's derivative equity ownership and debt
interest in the Company, the Company may be deemed to be an affiliate of
Prudential Securities Incorporated. Additionally, since PSG will receive more
than 10% of the net proceeds of the Offering a conflict of interest is presumed
under the NASD Conduct Rules. Accordingly, the public offering price can be no
higher than that recommended by a "qualified independent underwriter" meeting
certain standards.
45
We have been retained as a Qualified Independent Underwriter to
recommend to you the maximum offering price of the Common Stock as required
by the NASD Conduct Rules.
We have participated in the preparation of the Registration Statement
and the Prospectus and have exercised the usual standards of "due diligence"
with respect thereto. Assuming that the Offering is commenced on __________,
1997, we recommend that the offering price of the Common Stock be no higher
than $____.00, which price should in no event be considered or relied upon as
an indication of the actual value of the Common Stock.
Our recommendations are based on economic, market, financial and other
conditions as they exist at the date hereof and on other conditions and
circumstances relating to the Registrants as described in the Registration
Statement. Changes in the conditions and circumstances relating to the Company
from those described in the Registration Statement and events occurring after
the date hereof, including changes in the markets in which the Company
operates, could materially affect the conclusions stated in this letter. We
shall not be obligated or required to reaffirm or revise these recommendations
or otherwise to comment on any events occurring after the date hereof or on any
change to the conditions or circumstances relating to the Company from those so
described.
Very truly yours,
WHEAT, FIRST SECURITIES, INC.
By:_____________________________
Name: Xxxx X. Xxxxxx
Title: Managing Director
Confirmed and agreed to as of
the first date above written:
Vision Twenty-One, Inc.
By:_____________________________
Name:
Title:
