[Draft-- 5/5/97]
INTEGRAMED AMERICA, INC.
___________ Shares of Common Stock, $0.01 par value per share
PLACEMENT AGENCY AGREEMENT
_________________, 1997
Vector Securities International, Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sir or Madam:
IntegraMed America, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell ____________ shares (the "Shares") of common stock, par value
$.01 per share (the "Common Stock"), to certain investors (collectively, the
"Investors"). The Company desires to engage you as its exclusive placement agent
(the "Placement Agent") in connection with such issuance and sale. The Common
Stock is more fully described in the Registration Statement (as hereinafter
defined).
The Company hereby confirms its agreements with the Placement Agent as
follows:
1. Agreement to Act as Placement Agent.
On the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions of this
Agreement, the Placement Agent agrees to act as the Company's exclusive
placement agent in connection with the issuance and sale, on a best efforts
basis, by the Company of the Shares to the Investors. The Company shall pay to
the Placement Agent 7.0% of the gross proceeds received by the Company from
the sale of the Shares as set forth on the cover page of the Prospectus (as
hereinafter defined). Such fee shall be in addition to, but not in lieu of, any
fees, expenses or warrants owing by the Company to the Placement Agent under the
letter agreement dated March 8, 1996, as amended on September 12, 1996 and
February 4, 1997 (the "Advisory Agreement"), between the Company and the
Placement Agent relating to the Company's retention of the Placement Agent as a
financial advisor to the Company in connection with the acquisition by the
Company of Fertility Centers of Illinois, SC ("FCI").
2. Delivery and Payment. Concurrently with the execution and delivery of
this Agreement, the Company, the Placement Agent and Citibank, N.A., as escrow
agent (the "Escrow Agent"), shall enter into an Escrow Agreement substantially
in the form of Exhibit A attached hereto (the "Escrow Agreement"), pursuant to
which an escrow account will be established, at the Company's expense, for the
benefit of the Investors (the "Escrow Account"). Prior to the Closing Date (as
defined below), (i) each of the Investors will deposit an amount equal to the
Price to Public per Share as shown on the cover page of the Prospectus (as
hereinafter defined) multiplied by the number of Shares purchased by it in the
Escrow Account, and (ii) the Escrow Agent will notify the Company and the
Placement Agent in writing whether the Investors have deposited in the Escrow
Account funds in the amount equal to the proceeds of the sale of all of the
Shares offered hereby (the "Requisite Funds") into the Escrow Account. At 10:00
a.m., New York City time, on _____________, 1997, or at such other time on such
other date as may be agreed upon by the Company and the Placement Agent but in
no event prior to the date on which the Escrow Agent shall have received all of
the Requisite Funds (such date is hereinafter referred to as the "Closing
Date"), the Escrow Agent will release the Requisite Funds from the Escrow
Account for collection by the Company and the Placement Agent as provided in the
Escrow Agreement and the Company shall deliver the Shares to the Investors,
which delivery may be made through the facilities of The Depository Trust
Company. The closing (the "Closing") shall take place at the office of Stroock &
Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000. All actions
taken at the Closing shall be deemed to have occurred simultaneously.
Certificates evidencing the Shares shall be in definitive form and shall be
registered in such names and in such denominations as the Placement Agent shall
request by written notice to the Company. For the purpose of expediting the
checking and packaging of certificates for the Shares, the Company agrees to
make such certificates available for inspection at least 24 hours prior to
delivery to the Investors.
3. Representations and Warranties of the Company. The Company represents
and warrants and covenants to the Placement Agent that:
(a) A registration statement (Registration No. 333-______) on Form S-1
relating to the Shares, including a preliminary prospectus relating to the
Shares and such amendments to such registration statement as may have been
required to the date of this Agreement, has been prepared by the Company, under
the provisions of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (collectively referred to as the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder, and has
been filed with the Commission. The Commission has not issued any order
preventing or suspending the use of the Prospectus or the Preliminary Prospectus
(as defined below). The term "Preliminary Prospectus" as used herein means a
preliminary prospectus relating to the Shares as contemplated by Rule 430 or
Rule 430A ("Rule 430A") of the Rules and Regulations included at any time as
part of the registration statement. Copies of such registration statement and
amendments and of each related Preliminary Prospectus have been
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delivered to the Placement Agent. If such registration statement has not become
effective, a further amendment to such registration statement, including a form
of final prospectus, necessary to permit such registration statement to become
effective will be filed promptly by the Company with the Commission. If such
registration statement has become effective, a final prospectus relating to the
Shares containing information permitted to be omitted at the time of
effectiveness by Rule 430A will be filed by the Company with the Commission in
accordance with Rule 424(b) of the Rules and Regulations promptly after
execution and delivery of this Agreement. The term "Registration Statement"
means the registration statement as amended at the time it becomes or became
effective (the "Effective Date"), including all material incorporated by
reference therein and any information deemed to be included by Rule 430A. The
term "Prospectus" means the prospectus relating to the Shares as first filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations or, if
no such filing is required, the form of final prospectus relating to the Shares
included in the Registration Statement at the Effective Date, in either case,
including all material, if any, incorporated by reference therein.
(b) On the date that any Preliminary Prospectus was filed with the
Commission, the date the Prospectus is first filed with the Commission pursuant
to Rule 424(b) (if required), at all times subsequent to and including the
Closing Date and when any post-effective amendment to the Registration Statement
becomes effective or any amendment or supplement to the Prospectus is filed with
the Commission, the Registration Statement, each Preliminary Prospectus and the
Prospectus (as amended or as supplemented if the Company shall have filed with
the Commission any amendment or supplement thereto), including the financial
statements included in the Prospectus, did or will comply with all applicable
provisions of the Act and the Rules and Regulations and did or will contain all
statements required to be stated therein in accordance with the Act and the
Rules and Regulations. On the Effective Date and when any post-effective
amendment to the Registration Statement becomes effective, no part of the
Registration Statement or any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, at the date the Prospectus or any amendment
or supplement to the Prospectus is filed with the Commission and at the Closing
Date the Prospectus did not or will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The Company has not distributed any offering material in connection
with the offering or sale of the Common Stock, other than the Registration
Statement, the Preliminary Prospectus and the Prospectus.
(c) The Company is, and at the Closing Date will be, duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Company has, and at the Closing Date will have, full corporate power and
authority to conduct all the activities conducted by it, to own or lease all the
assets owned or leased by it and to conduct its business as described in the
Registration Statement and the Prospectus. The Company is, and at the Closing
Date will be, duly licensed or qualified to conduct its business and in good
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standing as a foreign organization in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or leased by
it makes such licensing or qualification necessary, except where failure to so
license or qualify does not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries (as hereinafter defined), taken
as a whole. Except for the stock of the Subsidiaries and as disclosed in the
Registration Statement, the Company does not own, and at the Closing Date will
not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity. Complete and
correct copies of the articles or certificate of incorporation and of the bylaws
of the Company and the Subsidiaries, and all amendments thereto have been
delivered to the Placement Agent, and no changes therein will be made subsequent
to the date hereof and prior to the Closing Date.
(d) All of the Company's subsidiaries (as defined in the Act) are
identified on Exhibit 21.1 to the Registration Statement and are referred to
herein as a "Subsidiary" and collectively as the "Subsidiaries." Each Subsidiary
is, and at the Closing Date will be, duly organized, validly existing and in
good standing in the jurisdiction of its incorporation. Each Subsidiary has, and
at the Closing Date will have, full corporate power and authority to conduct all
the activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration Statement or
Prospectus. Each Subsidiary is, and at the Closing Date will be, duly licensed
or qualified to conduct its business and in good standing as a foreign
organization in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such
licensing or qualification necessary, except where failure to so license or
qualify does not have a material adverse effect on the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole. All the outstanding shares
of capital stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, and are wholly owned by the
Company directly, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance, except as described in the Registration Statement
or Prospectus.
(e) Each individual physician, individual physician practice, group
medical practice and professional corporation with which the Company is
affiliated, through employment agreements or management agreements, is listed on
Schedule I hereto, and is referred to herein individually as a "Medical
Practice." Each Medical Practice is duly organized and is duly qualified or
licensed by, and is in good standing in, each jurisdiction in which it conducts
its businesses and in which the failure to be so qualified or licensed,
individually or in the aggregate, would have a material adverse effect on the
condition (financial or other), business, prospects. properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a whole.
(f) The issued and outstanding shares of capital stock of the Company
have been duly authorized, validly issued, are fully paid and nonassessable and
are
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not subject to any preemptive or similar rights. The Company has an authorized,
issued and outstanding capitalization as set forth under the caption
"Capitalization" in the Prospectus. The description of the securities of the
Company in the Registration Statement and the Prospectus is, and at the Closing
Date will be, complete and accurate in all respects. Except as set forth in the
Registration Statement and the Prospectus, neither the Company nor the
Subsidiaries has outstanding, and at the Closing Date will not have outstanding,
any options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or exchangeable for, or any
contracts or commitments to issue or sell, any shares of capital stock or other
securities.
(g) This Agreement has been duly authorized and validly executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, subject to
the effect of bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto. The Escrow Agreement has been duly authorized
and validly executed and delivered by the Company and is a legal, valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance and similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto.
(h) The issuance and sale of the Shares have been duly authorized by
the Company, and the Shares, when issued and paid for in accordance with this
Agreement, will be duly and validly issued, fully paid and nonassessable and
will not be subject to preemptive or similar rights. The holders of the Shares
will not be subject to personal liability by reason of being such holders. The
Shares, when issued, will conform to the description thereof set forth in the
Prospectus.
(i) The consolidated financial statements and the related notes and
schedules included in the Registration Statement and the Prospectus present
fairly the consolidated financial condition of the Company and the Subsidiaries
and (as to financial statements and related notes included in the Registration
Statement and the Prospectus or any amendment or supplement thereto pursuant to
Rule 3-05 of Regulation S-X) of acquired physician practices or practices the
acquisition of which is probable ("Acquisition Practices"), as the case may be,
as of the respective dates thereof and the results of operations, stockholder's
equity (deficit) and cash flows at the respective dates and for the respective
periods covered thereby, all in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed therein. No other financial statements
or schedules of the Company, the Subsidiaries, or any other entity are required
by the Act or the Rules and Regulations to be included in the Registration
Statement or the Prospectus. Price Waterhouse LLP (the "Accountants"), who have
reported on such financial statements and schedules, are independent accountants
with respect to the Company, the Subsidiaries and the Acquisition Practices as
required by the Act and the Rules and Regulations. Such financial statements and
the related notes and schedules included in the
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Registration Statement and the Prospectus have been prepared in conformity with
the requirements of the Act and the Rules and Regulations and present fairly the
information presented therein; the pro forma financial information included in
the Registration Statement and the Prospectus (and any amendment or supplement
thereto) has been prepared in conformity with the applicable published rules and
regulations of the Commission with respect to pro forma financial information,
and the assumptions used in preparing such information are reasonable; and the
other financial and statistical information and data included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company and the
Subsidiaries and of Acquisition Practices, as the case may be.
(j) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(k) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date, except as set forth in or contemplated by the Registration Statement and
the Prospectus, (i) there has not been and will not have been any change in the
capitalization of the Company or the Subsidiaries other than non-material
changes in the ordinary course of business, or any material adverse change in
the business, properties, business prospects, condition (financial or otherwise)
or results of operations of the Company or the Subsidiaries arising for any
reason whatsoever, (ii) the Company and the Subsidiaries have not incurred nor
will any of them incur any material liabilities or obligations, direct or
contingent, nor has the Company or the Subsidiaries entered into nor will any of
them enter into any material transactions other than pursuant to this Agreement,
the Registration Statement and the transactions referred to herein and therein
and (iii) the Company has not and will not have paid or declared any dividends
or other distributions of any kind on any class of its capital stock.
(l) Any real property and buildings held under lease to the Company or
the Subsidiaries are held or leased by them under valid, binding and enforceable
leases conforming to the description thereof set forth in the Registration
Statement and the Prospectus, with such exceptions as do not interfere with the
use made and proposed to be made of such property and buildings by the Company
or the Subsidiaries, as the case may be.
(m) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such
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terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and is not required to be registered under the
Investment Company Act.
(n) Except as set forth or referred to in the Registration Statement
and the Prospectus, there are no actions, suits or proceedings pending, or to
the Company's knowledge, threatened, against or affecting the Company or the
Subsidiaries or any of their respective officers in their capacity as such,
before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might materially adversely affect the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a whole.
(o) The Company and each Subsidiary has, and at the Closing Date will
have, all governmental or regulatory licenses, permits, consents, orders,
franchises, certificates of need, approvals and other authorizations ("Permits")
necessary to carry on their respective businesses as presently conducted and in
the manner described in the Prospectus, including, without limitation, such
Permits as are required (i) under such federal and state healthcare laws,
statutes and regulations as are applicable to the Company and the Subsidiaries
and (ii) to receive reimbursement under Medicare/Medicaid. The Company and each
of the Subsidiaries has fulfilled and performed in all material respects their
respective obligations with respect to the Permits, and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights of
the holder of any such Permit, subject in each case to such qualifications as
may be set forth in the Prospectus. Except as described in the Prospectus, none
of the Permits contains any restriction that is materially burdensome to the
Company or any of the Subsidiaries.
(p) The Company and each Subsidiary has, and at the Closing Date will
have, (i) complied with all laws, regulations and orders applicable to any of
them or their businesses, where the failure to so comply would have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole and (ii) performed all its obligations required
to be performed, and is not, and at the Closing Date will not be, to the
Company's knowledge, in default, under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note agreement, lease,
contract or other agreement or instrument (collectively, a "contract or other
agreement") to which any of them is a party or by which its property is bound or
affected, except as otherwise set forth in the Registration Statement and the
Prospectus and except where such default would not have a material adverse
effect on the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company and the Subsidiaries, taken as
a whole, and, to the Company's knowledge, no other party under any contract or
other agreement to which either the Company or the Subsidiaries is a party is in
default in any material respect thereunder. Neither the Company nor the
Subsidiaries is in violation of any provision of its organizational or governing
documents.
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(q) There are no material Medicare, Medicaid or other managed care
recoupment or recoupments of any third-party payor being sought, threatened,
requested or claimed against the Company or any of the Subsidiaries.
(r) Neither the Company nor any of the Subsidiaries is in material
violation of any healthcare law, ordinance, administrative or governmental rule
or regulation applicable to the Company or any of the Subsidiaries, including,
without limitation, those relating to reimbursement by government agencies and
fraudulent or wrongful xxxxxxxx.
(s) Neither the Company nor any of the Subsidiaries nor any employee
or agent of the Company or any Subsidiary has made any payment of funds or
received or retained any funds in violation of any healthcare law, rule or
regulation, including, without limitation, those prohibiting fee-splitting or
fees for the referral of patients.
(t) The businesses of the Company, the Subsidiaries and the Medical
Practices do not violate in a material respect any healthcare statute,
administrative or governmental rule or regulation of the United States
applicable to the Company, any of the Subsidiaries or any of the Medical
Practices, including, but not limited to, 42 U.S.C. ss. 1395nn, 42 U.S.C.
ss.1396(b), 42 U.S.C. ss.1320a-7b(b), or any healthcare judgment, injunction,
order or decree of any court or governmental entity or instrumentality of the
United States having jurisdiction over the Company, any of the Subsidiaries or
any of the Medical Practices.
(u) The statements in the Registration Statement and Prospectus under
the captions "Risk Factors--Government Regulation" and "Business--Government
Regulation," insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein.
(v) To the best knowledge of the Company, (i) there are no actions,
suits or proceedings pending or threatened, against or affecting the Medical
Practices or FCI (together with the Medical Practices, the "Practices"), before
or by any Federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign; (ii) none of the
Practices is in violation of its certificate or articles of incorporation or
by-laws, or other organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to the Practices or
of any decree of any court or governmental agency or body having jurisdiction
over the Practices or in default in the performance of any obligation, agreement
or condition contained in any contract or other agreement to which it, the
Company or any of the Subsidiaries is a party or by which any of their
respective properties may be bound; (iii) each Practice has such Permits as are
necessary to own such Practice's properties and to conduct such Practice's
business in the manner described in the Prospectus; each Practice has fulfilled
and performed all its obligations with respect to such Permits, and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other impairment of the rights of the
holder of any such Permit, subject in each case to such qualifications as may be
set forth
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in the Prospectus; and, except as described in the Prospectus, none of
such Permits contains any restriction that is burdensome to such Practice; (iv)
there are no Medicare or Medicaid or other managed care recoupment or
recoupments of any third-party payor being sought, requested, claimed or
threatened against any of the Practices; (v) the Practices is not in material
violation of any healthcare law, ordinance, administrative or governmental rule
or regulation applicable to the Practices, including, without limitation, those
relating to reimbursement by government agencies and fraudulent or wrongful
xxxxxxxx; and (vi) neither the Practices nor any employee or agent of the
Practices has made any payment of funds or received or retained any funds in
violation of any healthcare law, rule or regulation, including, without
limitation, those prohibiting fee-splitting or fees for the referral of
patients.
(w) The Company has all corporate power and authority to enter into
this Agreement and the Escrow Agreement, and to carry out the provisions and
conditions hereof and thereof, and all consents, authorizations, approvals and
orders required in connection herewith and therewith have been obtained, except
such as may be required under state securities or Blue Sky laws or the by-laws
and rules of the National Association of Securities Dealers, Inc. (the "NASD").
(x) Neither (i) the issuance, offering and sale of the Shares pursuant
hereto, nor (ii) the compliance by the Company with the other provisions hereof
require the consent, approval, authorization, registration, filing 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 or the
bylaws and rules of the NASD and, if the Registration Statement 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.
(y) Neither the execution of this Agreement or the Escrow Agreement,
nor the issuance, offering or sale of the Shares, nor the consummation of any of
the transactions contemplated herein or in the Escrow Agreement, nor the
compliance by the Company with the terms and provisions hereof or thereof will
conflict with, or will result in a breach of, any of the terms and provisions
of, or has constituted or will constitute a default under, or has resulted in or
will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or the Subsidiaries pursuant to the
terms of any contract or other agreement to which the Company or the
Subsidiaries may be bound or to which any of the property or assets of the
Company or the Subsidiaries; nor will such action result in any violation of the
provisions of the Company's or the Subsidiaries' organizational or governing
documents, or any statute or any order, rule or regulation applicable to the
Company or the Subsidiaries or of any court or of any federal, state or other
regulatory authority or other government body having jurisdiction over the
Company or the Subsidiaries.
(z) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which
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the Company or the Subsidiaries is a party have been duly authorized, executed
and delivered by the Company or the Subsidiaries, constitute legal, valid and
binding agreements of the Company or the Subsidiaries, as the case may be, and
are enforceable against the Company or the Subsidiaries in accordance with the
terms thereof, subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance and similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto.
(aa) No statement, representation or warranty made by the Company in
this Agreement or made in any certificate or document required by this Agreement
or the Escrow Agreement to be delivered to the Placement Agent, the Investors or
the Escrow Agent was or will be, when made, inaccurate, untrue or incorrect in
any material respect.
(bb) The Company and its directors, officers or controlling persons
have not taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result, under the Act or otherwise, in, or
which has constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Common Stock.
(cc) No holder of securities of the Company has rights to the
registration of any securities of the Company as a result of the filing of the
Registration Statement, other than rights which are not execrable due to the
Placement Agent's determination to include only securities sold directly from
the Company.
(dd) The Common Stock is currently listed on the Nasdaq National
Market (the "NNM").
(ee) Neither the Company nor the Subsidiaries is involved in any
material labor dispute nor is any such dispute threatened.
(ff) None of the Company or the Subsidiaries or any of their
respective employees or agents has made any payment of funds of the Company or
the Subsidiaries, or received or retained any such funds in violation of any
law, rule or regulation where such actions are of a character required to be
disclosed in the Prospectus.
(gg) The Company, each of the Subsidiaries and each of the Medical
Practices is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and fidelity or
surety bonds insuring the Company, any of the Subsidiaries, any of the Medical
Practices and their respective businesses, assets, employees, officers and
directors are in full force and effect; the Company, the Subsidiaries and the
Medical Practices are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the Company,
any of the Subsidiaries or any of the Medical Practices under any such policy or
instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause. The Company, each of the
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Subsidiaries and each of the Medical Practices maintains insurance of the types
and in amounts generally deemed adequate for its business and consistent with
insurance coverage maintained by similar companies and businesses, all of which
insurance is in full force and effect. None of the Company, the Subsidiaries or
the Medical Practices has been refused any insurance coverage sought or applied
for; and none of the Company, the Subsidiaries or the Medical Practices has
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 adversely affect the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole.
(hh) The business, operations and properties of the Company and the
Subsidiaries have been and are being conducted in compliance with all applicable
laws, ordinances, rules, regulations, licenses, permits, approvals, plans,
authorizations or requirements relating to occupational safety and health, or
pollution, or protection of health or the environment (including, without
limitation, those relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants or hazardous or toxic substances, materials
or wastes into ambient air, surface water, groundwater or land, or relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials or wastes, whether solid, gaseous or
liquid in nature) of any governmental department, commission, board, bureau,
agency or instrumentality of the United States, any state or political
subdivision thereof, or any foreign jurisdiction, and all applicable judicial or
administrative agency or regulatory decrees, awards, judgments and orders
relating thereto, and neither the Company nor the Subsidiaries has received any
notice from any governmental instrumentality or any third party alleging any
violation thereof or liability thereunder (including, without limitation,
liability for costs of investigating or remediating sites containing hazardous
substances and/or damages to natural resources).
(ii) Each officer, director and securityholder of the Company listed
on Exhibit B hereto has delivered to the Placement Agent an agreement in the
form of Attachment A hereto to the effect that he or she will not, without the
prior written consent of the Placement Agent, offer to sell, sell, contract to
sell, grant any option to purchase or otherwise dispose (or announce any offer,
sale, grant of any option to purchase or other disposition) of any shares of
capital stock of the Company or securities convertible into, or exchangeable or
execrable for, shares of capital stock of the Company for a period of ___ months
after the date hereof.
(jj) The Company has delivered to the Placement Agent an agreement in
the form of Attachment B hereto to the effect that it will not without the prior
written consent of the Placement Agent, offer, sell, or otherwise dispose (or
announce any offer, sale, grant of any option to purchase or other disposition)
of any shares of capital stock of the Company or securities convertible into, or
exchangeable or execrable for, shares of capital stock of the Company for a
period of ___ days after the date hereof.
-11-
4. Agreements of the Company. The Company covenants and agrees with the
Placement Agent as follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus would be required by law to be
delivered in connection with sales of the Shares by an underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Placement Agent within a reasonable period of time prior to the filing thereof
and the Placement Agent shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the Registration
Statement to become effective, and will notify the Placement Agent promptly, and
will confirm such advice in writing, (1) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective, (2) of any request by the securities or other governmental authority
(including, without limitation, the Commission) of any jurisdiction for
amendments or supplements to the Registration Statement or the Prospectus or for
additional information, (3) of the issuance by any securities or other
governmental authority (including, without limitation, the Commission) of any
jurisdiction of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat
thereof, (4) of the happening of any event during the period mentioned in
Section 4(a) that in the judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are made, not
misleading and (5) of receipt by the Company or any representative or attorney
of the Company of any other communication from the securities or other
governmental authority (including, without limitation, the Commission) of any
jurisdiction relating to any of the Registration Statement, any Preliminary
Prospectus or the Prospectus. If at any time any securities or other
governmental authority (including, without limitation, the Commission) of any
jurisdiction shall issue any order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible moment. If the Company has
omitted any information from the Registration Statement, pursuant to Rule 430A,
it will use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to said Rule 430A and to notify
the Placement Agent promptly of all such filings.
(c) If, at any time when a Prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would, in the judgment of
counsel to the Company or counsel to the Placement Agent, 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 the Registration Statement, as then amended
or supplemented, would, in the judgment of counsel to the Company or counsel to
the Placement
-12-
Agent, include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading, or if for
any other reason it is necessary, in the judgment of counsel to the Company or
counsel to the Placement Agent, at any time to amend or supplement the
Prospectus or the Registration Statement to comply with the Act or the Rules and
Regulations, the Company will promptly notify the Placement Agent and, subject
to Section 4(a) hereof, will promptly 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 and will deliver to the Placement Agent,
without charge, such number of copies thereof as the Placement Agent may
reasonably request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Placement Agent.
(d) The Company will furnish to the Placement Agent and its counsel,
without charge, (i) two signed copies of the registration statement described in
Section 3(a) hereof and each pre-effective amendment thereto, including
financial statements and schedules, and all exhibits thereto and (ii) so long as
a prospectus relating to the Shares 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 Placement Agent may reasonably request.
(e) The Company will comply with all the undertakings contained in the
Registration Statement.
(f) Prior to the sale of the Shares to the Investors, the Company will
cooperate with the Placement Agent and its counsel in connection with the
registration or qualification of the Shares for offer and sale under the state
securities or Blue Sky laws of such jurisdictions as the Placement Agent may
request; provided, that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general service of process in any jurisdiction
where it is not now so subject.
(g) During the period of five years commencing on the Effective Date,
the Company will furnish to the Placement Agent copies of such financial
statements and other periodic and special reports as the Company may from time
to time distribute generally to the holders of any class of its capital stock,
and will furnish to the Placement Agent a copy of each annual or other report it
shall be required to file with the Commission.
(h) The Company will make generally available to holders of its
securities, as soon as may be practicable, but in no event later than the last
day of the fifteenth full calendar month following the calendar quarter in which
the Effective Date falls, a consolidated earnings statement (which need not be
audited but shall be in reasonable detail) for a period of 12 months ended
commencing after the Effective Date, and satisfying the provisions of Section
11(a) of the Act (including Rule 158 of the Rules and Regulations).
-13-
(i) The Company will not at any time, directly or indirectly, take any
action intended, or which might reasonably be expected, to cause or result in,
or which will constitute, stabilization of the price of the Shares to facilitate
the sale or resale of any of the Shares.
(j) The Company will apply the net proceeds from the offering and sale
of the Shares in the manner set forth in the Prospectus under the caption "Use
of Proceeds."
5. Expenses. Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay all costs
and expenses incident to the performance of the obligations of the Company under
this Agreement, including but not limited to costs and expenses of or relating
to (1) the preparation, printing and filing of the Registration Statement
(including each pre- and post-effective amendment thereto) and exhibits thereto,
each Preliminary Prospectus, the Prospectus and any amendment or supplement to
the Prospectus, including all fees, disbursements and other charges of counsel
to the Company, (2) the preparation and delivery of certificates representing
the Shares, (3) furnishing (including costs of shipping and mailing) such copies
of the Registration Statement (including all pre- and post-effective amendments
thereto), the Prospectus and any Preliminary Prospectus, and all amendments and
supplements to the Prospectus, as may be requested for use in connection with
the direct placement of the Shares, (4) the listing of the Common Stock on the
NNM, (5) any filings required to be made by the Placement Agent with the NASD
and the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions designated pursuant to Section
4(f), including the reasonable fees, disbursements and other charges of counsel
to the Placement Agent in connection therewith, up to a maximum of $20,000, and
the preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (6) fees, disbursements and other charges of counsel to the Company
and (7) the fees of the Escrow Agent. The Company shall reimburse the Placement
Agent for all its travel, legal and other out-of-pocket expenses incurred in
connection with the engagement hereunder, up to a maximum of $125,000. Such
expenses shall be in addition to, but not in lieu of, any fees, expenses or
warrants owing by the Company to the Placement Agent under the Advisory
Agreement.
6. Conditions of the Obligations of the Placement Agent. The obligations of
the Placement Agent hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective
shall be received by the Placement Agent not later than 5:00 p.m., New York City
time, on the date of this Agreement or at such later date and time as shall be
consented to in writing by the Placement Agent and all filings required by Rule
424 of the Rules and Regulations and Rule 430A shall have been made.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceedings for that purpose shall be
pending or
-14-
threatened by any securities or other governmental authority (including, without
limitation, the Commission), (ii) no order suspending the effectiveness of the
Registration Statement or the qualification or registration of the Shares under
the securities or Blue Sky laws of any jurisdiction shall be in effect and no
proceeding for such purpose shall be pending before or threatened or
contemplated by any securities or other governmental authority (including,
without limitation, the Commission), (iii) any request for additional
information on the part of the staff of any securities or other governmental
authority (including, without limitation, the Commission) shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities and (iv) after the date hereof no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to the Placement Agent and the Placement Agent did
not object thereto in good faith, and the Placement Agent shall have received
certificates, dated the Closing Date and signed by the President and Chief
Executive Officer or the Chairman of the Board of Directors of the Company, and
the Chief Financial Officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the effect
of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or results of
operations of the Company or the Subsidiaries, whether or not arising from
transactions in the ordinary course of business, in each case other than as set
forth in or contemplated by the Registration Statement and the Prospectus and
(ii) neither the Company nor the Subsidiaries shall have sustained any material
loss or interference with its business or properties from fire, explosion, flood
or other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the Prospectus,
if in the judgment of the Placement Agent any such development makes it
impracticable or inadvisable to consummate the sale and delivery of the Shares
to Investors at the public offering price.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or the Subsidiaries or any of
its officers or directors in their capacities as such, before or by any Federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or proceeding
an unfavorable ruling decision or finding would materially and adversely affect
the business, properties, business properties, condition (financial or
otherwise) or results of operations of the Company or its Subsidiaries.
(e) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at the
Closing Date, as if made on such date, and all covenants and agreements herein
contained to be performed on the part of the Company and all conditions herein
contained to be fulfilled or complied with by the
-15-
Company at or prior to the Closing Date shall have been duly performed,
fulfilled or complied with.
(f) The Placement Agent shall have received an opinion, dated the
Closing Date, of Bachner, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Company,
in form and substance satisfactory to the Placement Agent, to the effect that:
(i) each of the Company and the Subsidiaries has been duly organized
and is validly existing in good standing under the laws of its jurisdiction
of incorporation and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole;
(ii) each of the Company and the Subsidiaries has full power and
authority to conduct all the activities conducted by it, to own or lease
all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus; and the Company
has all corporate power and authority to enter into this Agreement and the
Escrow Agreement, and to carry out the provisions and conditions hereof and
thereof, and all consents, authorizations, approvals and orders required in
connection herewith and therewith have been obtained;
(iii) the Company has an authorized capitalization as set forth under
the caption "Capitalization" 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 free of preemptive or similar
rights; no holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or other rights to subscribe for any
of the Shares; no holders of securities of the Company are entitled to have
such securities registered under the Registration Statement; and, to the
best of such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitment,
plan or arrangement to, issue or register any shares of capital stock or
other securities of the Company or the Subsidiaries other than as disclosed
in the Registration Statement and the Prospectus;
(iv) the issuance and sale of the Shares have been duly authorized by
the Company, and the Shares, when issued and paid for in accordance with
this Agreement, will be duly and validly issued and outstanding, fully paid
and nonassessable and will not be subject to preemptive or similar rights;
the holders of the Shares will not be subject to personal liability by
reason of being such holders; and the Shares, when issued, will conform to
the description thereof set forth in the Prospectus.
(v) the statements set forth under the heading "Description of Capital
-16-
Stock" in the Prospectus, insofar as such statements purport to summarize
certain provisions of the securities of the Company, constitute a fair
summary of such provisions;
(vi) the execution and delivery of this Agreement and the Escrow
Agreement have been duly authorized by all necessary action of the Company
and each has been duly executed and delivered by the Company, and each is
the legal, valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject, as to enforcement, to
the effect of bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto and, in the case of this Agreement, except
as rights to indemnity and contribution may be limited by federal or state
securities laws or the public policy underlying such laws; the Escrow
Agreement conforms to the description thereof set forth in the Prospectus;
(vii) no legal or governmental proceedings are pending to which the
Company or the Subsidiaries or to which the property of the Company or the
Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein,
and, to such counsel's knowledge after due inquiry, no such proceedings
have been threatened against the Company or the Subsidiaries or with
respect to any of their respective assets; and 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 filed as required;
(viii) the Registration Statement is effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to such
counsel's knowledge after due inquiry, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto and no order directed at any amendment or supplement thereto has
been issued, and no proceedings for that purpose have been instituted or
threatened or are contemplated by the Commission;
(ix) the Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined under the Investment Company Act, and
is not required to be registered under the Investment Company Act;
(x) the statements set forth in the Prospectus under the captions
"Risk Factors," "Business," "Description of Capital Stock," "Management"
and "Principal Stockholders," insofar as such statements constitute matters
of law or legal conclusions, have been reviewed by such counsel and are
accurate in all material respects (it being understood that such counsel
need express no opinion with respect to statements set forth under the
captions "Risk Factors--Government Regulation," and "Business--
-17-
Government Regulation");
(xi) the registration statement described in Section 3(a) hereof as
originally filed with respect to the Shares and each amendment thereto and
the Prospectus (in each case, not including the financial statements and
other financial and statistical information 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;
(xii) no default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or the Subsidiaries is a party or by which the Company or the
Subsidiaries is bound or may be affected, where such default would have a
material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole;
(xiii) neither the issuance, offering and sale of the Shares pursuant
hereto nor the compliance by the Company with the other provisions of this
Agreement and with the provisions of the Escrow Agreement require the
consent, approval, authorization, registration, filing or qualification of
or with any governmental authority, except such as have been obtained (it
being understood that such counsel need express no opinion with respect to
state securities or Blue Sky Laws or the bylaws and rules of the NASD);
(xiv) neither the execution or delivery of this Agreement or the
Escrow Agreement, nor the issuance, offering or sale of the Shares, nor the
compliance by the Company with the terms and provisions hereof or thereof
will conflict with, or result in a breach or violation of, any of the terms
and provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or of the Subsidiaries pursuant to the terms of, (A)
any contract or other agreement to which the Company or the Subsidiaries is
a party or by which the Company or the Subsidiaries or any of their
respective properties or assets are subject, (B) the organizational or
governing documents of the Company or the Subsidiaries, (C) any statute,
rule or regulation applicable to the Company or the Subsidiaries, or (D)
any judgment, decree or order of any court or other governmental authority
or any arbitrator known to such counsel and applicable to the Company or
the Subsidiaries;
(xv) the Shares have been authorized for quotation on the NNM;
(xvi) to the best knowledge of such counsel after reasonable inquiry,
neither the Company nor any of the Subsidiaries is in violation of any law,
ordinance,
-18-
administrative or governmental rule or regulation applicable to the Company
or any of the Subsidiaries, or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries, the effect of which could have a material adverse effect on
the Company and the Subsidiaries, taken as a whole; and
(xvii) to the best of such knowledge of such counsel after reasonable
inquiry, the Company, each of the Subsidiaries and each of the Medical
Practices has full power and authority and all Permits as are required
under applicable law to own, lease and operate their respective properties
and to conduct their respective businesses as now being conducted as
described in the Prospectus, including, without limitation, such Permits as
are required (x) under such Federal and state healthcare laws, statutes and
regulations as are applicable to the Company, the Subsidiaries and the
Medical Practices and (y) to receive reimbursement under Medicare/Medicaid.
Such counsel shall also state that in the course of the preparation of the
Registration Statement and the Prospectus, such counsel has participated in
conferences with officers and representatives of the Company and with the
Accountants, at which conferences the contents of the Registration Statement and
the Prospectus were discussed and, on the basis of the foregoing, that they have
no reason to believe that the Registration Statement, as of its effective date
and as of the date of such opinion, contained or contains any untrue statement
of a material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its date or the date of such opinion, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (other than financial statements and schedules and other financial
and statistical data included therein, as to which such counsel need express no
view).
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 and, as to matters involving the
application of laws of any jurisdictions in which such counsel are not admitted
to practice, to the extent satisfactory in form and substance to counsel for the
Placement Agent, upon the opinion of local counsel. The foregoing opinion shall
also state that the Placement Agent is justified in relying upon such opinions
of local counsel, and copies of such opinions shall be delivered to the
Placement Agent and their counsel.
References to the Registration Statement and the Prospectus in this
paragraph (f) shall include any amendment or supplement thereto at the date of
such opinion.
(g) The Placement Agent shall have received an opinion, dated the
Closing Date, of __________________, special counsel to the Company, in form and
substance satisfactory to the Placement Agent, to the effect that the statements
in the Registration Statement and Prospectus under the captions "Risk
Factors--Government Regulation" and
-19-
"Business--Government Regulation," insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to therein.
References to the Registration Statement and the Prospectus in this
paragraph (g) shall include any amendment or supplement thereto at the date of
such opinion.
(h) Concurrently with the execution and delivery of this Agreement,
or, if the Company elects to rely on Rule 430A, on the date of the Prospectus,
the Accountants shall have furnished to the Placement Agent a letter, dated the
date of its delivery (the "Original Letter"), addressed to the Placement Agent
and in form and substance satisfactory to the Placement Agent, confirming that
(i) they are independent public accountants with respect to the Company and the
Subsidiaries within the meaning of the Act and the Rules and Regulations; (ii)
in their opinion, the financial statements and any supplementary financial
information and schedules (and pro forma financial information) included in the
Registration Statement and examined by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the Rules
and Regulations; (iii) on the basis of procedures, not constituting an
examination in accordance with generally accepted auditing standards, set forth
in detail in the Original Letter, a reading of the latest available interim
financial statements of the Company and the Subsidiaries, inspections of the
minute books of the Company and the Subsidiaries since the latest audited
financial statements included in the Prospectus, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in the Original Letter to a date
not more than five days prior to the date of the Original Letter, nothing came
to their attention that caused them to believe that: (A) the unaudited financial
statements and schedules of the Company and the Subsidiaries included in the
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Rules and Regulations, or are not
fairly presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with the basis for the audited
financial statements included in the Prospectus; (B) any other unaudited income
statement data and balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited financial statements from which
such data and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited financial statements included in the
Prospectus; (C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited financial statements
referred to in clause (A) and any unaudited income statement data and balance
sheet items included in the Prospectus and referred to in clause (B) were to be
determined on a basis substantially consistent with the basis for the audited
financial statements included in the Prospectus; (D) as of a specified date not
more than five days prior to the date of the Original Letter, there have been
any changes in the capital stock of the Company or any increase in the long-term
debt of the Company, or any decreases in net current assets or net assets or
other items specified by the Placement Agent, or any increases in any items
specified by the Placement Agent, in each case as compared with
-20-
amounts shown in the latest balance sheet included in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in the Original Letter; and
(E) for the period from the date of the latest financial statements included in
the Prospectus to the specified date referred to in Clause (D), there were any
decreases in revenues or the total or per share amounts of net income or other
items specified by the Placement Agent, or any increases in any items specified
by the Placement Agent, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length specified
by the Placement Agent, except in each case for decreases or increases which the
Prospectus discloses have occurred or may occur or which are described in the
Original Letter; (iv) in addition to the examination referred to in their
reports included in the Prospectus and the procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Placement Agent, which are derived from the general
accounting, financial or other records of the Company or the Subsidiaries, as
the case may be, which appear in the Prospectus or in Part II of, or in exhibits
or schedules to, the Registration Statement, and have compared such amounts,
percentages and financial information with such accounting, financial and other
records and have found them to be in agreement; and (v) on the basis of a
reading of the unaudited pro forma consolidated condensed financial statements
included in the Registration Statement and Prospectus, carrying out certain
specified procedures that would not necessarily reveal matters of significance
with respect to the comments set forth in this clause (v), inquiries of certain
officials of the Company and the Subsidiaries 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 consolidated condensed financial statements, nothing came to
their attention that caused them to believe that the unaudited pro forma
consolidated condensed financial statements 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 compilations of such statements. At the Closing
Date, the Accountants shall have furnished to the Placement Agent a letter,
dated the date of its delivery, which shall confirm, on the basis of a review in
accordance with the procedures set forth in the Original Letter, that nothing
has come to their attention during the period from the date of the Original
Letter referred to in the prior sentence to a date (specified in the letter) not
more than five days prior to the Closing Date which would require any change in
the Original Letter if it were required to be dated and delivered at the Closing
Date.
(i) At the Closing Date, there shall be furnished to the Placement
Agent a certificate, dated the date of its delivery, signed by each of the Chief
Executive Officer and the Chief Financial Officer of the Company, in form and
substance satisfactory to the Placement Agent, to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus and (A) as of the date of such
certificate, (x) the Registration Statement does not contain any untrue
statement of a material fact or
-21-
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and (y) the Prospectus
does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading and (B) since the Effective Date no event has occurred
as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein not untrue or misleading in any
material respect.
(ii) Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at the
time such certificate is delivered, true and correct in all material
respects.
(iii) Each of the covenants required herein to be performed by the
Company on or prior to the date of such certificate has been duly, timely
and fully performed and each condition herein required to be complied with
by the Company on or prior to the delivery of such certificate has been
duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company or the Subsidiaries,
except as set forth in or contemplated by the Prospectus.
(j) The Shares shall be qualified for sale in such states as the
Placement Agent may reasonably request, each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing
Date.
(k) The Shares shall have been authorized for quotation on the NNM.
(l) The Company shall have furnished to the Placement Agent such
certificates, in addition to those specifically mentioned herein, as the
Placement Agent may have reasonably requested as to the accuracy and
completeness at the Closing Date of any statement in the Registration Statement
or the Prospectus, as to the accuracy at the Closing Date of the representations
and warranties of the Company as to the performance by the Company of its
obligations hereunder, or as to the fulfillment of the conditions concurrent and
precedent to the obligations hereunder of the Placement Agent.
7. Indemnification.
(a) The Company shall indemnify and hold harmless the Placement Agent,
the directors, officers, employees and agents of the Placement Agent and each
person, if
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any, who controls the Placement Agent within the meaning of Section 15 of the
Act or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), from and against any and all losses, claims, liabilities,
expenses and damages, joint or several, (including any and all investigative,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which it, or any of them, may become subject under the Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based on
(i) any untrue statement or alleged untrue statement made by the Company in
Section 3 of this Agreement, (ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus and (B) any application or other
document, or any amendment or supplement thereto, executed by the Company based
upon written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities or Blue Sky
laws thereof or filed with the Commission or any securities association or
securities exchange (each, an "Application") or (iii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any supplement to the Registration Statement or the Prospectus
or any Application a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that the Company will not be liable to
the extent that such loss, claim, liability, expense or damage arises from the
sale of the Shares in the public offering to any person and is based solely on
an untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to the Placement Agent
furnished in writing to the Company by the Placement Agent expressly for
inclusion in the Registration Statement, any Preliminary Prospectus or the
Prospectus; and provided further, that such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any indemnified person
where the person asserting any such loss, claim, damage, liability or action
purchased Shares which are the subject thereof to the extent that any such loss,
claim, damage or liability (i) results from the fact that such Placement Agent
failed to send or give a copy of the Prospectus (as amended or supplemented) to
such person at or prior to the confirmation of the sale of such Shares to such
person in any case where such delivery is required by the Act and (ii) arises
out of or is based upon an untrue statement or omission of a material fact
contained in such Preliminary Prospectus that was corrected in the Prospectus
(or any amendment or supplement thereto), unless such failure to deliver the
Prospectus (as amended or supplemented) was the result of noncompliance by the
Company with Section 4(d). This indemnity agreement will be in addition to any
liability which the Company may otherwise have. The Company will not, without
the prior written consent of the Placement Agent, 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 has been sought hereunder
(whether or not such Placement Agent or any person who controls such Placement
Agent within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act is a party to each claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of the
Placement Agent
-23-
and each such controlling person from all liability arising out of such claim,
action, suit or proceeding.
(b) The Placement Agent will indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, each director of the Company and
each officer of the Company who signs the Registration Statement to the same
extent as the foregoing indemnity from the Company to the Placement Agent, but
only insofar as losses, claims, liabilities, expenses or damages arise out of or
are based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to the
Placement Agent furnished in writing to the Company by the Placement Agent
expressly for use in the Registration Statement, any Preliminary Prospectus or
the Prospectus. This indemnity agreement will be in addition to any liability
that the Placement Agent might otherwise have. The Company acknowledges that,
for all purposes under this Agreement, the statements set forth under the
caption "Plan of Distribution" in any Preliminary Prospectus and the Prospectus
constitute the only information relating to the Placement Agent furnished in
writing to the Company by the Placement Agent expressly for inclusion in the
Registration Statement, any Preliminary Prospectus or the Prospectus.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by, or
otherwise prejudices, the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
incurred by the indemnified party in connection with the defense. The
indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
a conflict exists (based on advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party that would prevent the counsel
selected by the indemnifying party from representing the indemnified party (in
which case the indemnifying party will not have the right to direct the defense
of such
-24-
action on behalf of the indemnified party) or (3) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. The
Company will not, without the prior written consent of the Placement Agent,
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
has been sought hereunder (whether or not the Placement Agent or any person who
controls the Placement Agent 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 Placement Agent and each such controlling person
from all liability arising out of such claim, action, suit or proceeding. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Placement Agent,
the Company and the Placement Agent will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Placement Agent such as persons who control the Company within the meaning of
the Act or the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for contribution)
to which the Company and the Placement Agent may be subject in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Placement Agent on the other. The relative benefits
received by the Company on the one hand and the Placement Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting Company expenses) received by the Company as set
forth in the table on the cover page of the Prospectus bear to the fee received
by the Placement Agent hereunder. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Placement Agent on the
other, with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or
-25-
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Placement Agent, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Placement Agent agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above in this
Section 7(d) shall be deemed to include, for purpose of this Section 7(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), the Placement Agent shall
not be required to contribute any amount in excess of the fee received by it
under this Agreement, and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7(d), any person who controls a
party to this Agreement within the meaning of the Act or the Exchange Act will
have the same rights to contribution as that party, and each officer of the
Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made under this Section 7(d), will notify any such party or parties from
whom contribution may be sought, but the omission so to notify will not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 7(d). No party will be liable
for contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The provisions of this Section 7 shall be in addition to, but not
in lieu of, any indemnification obligations of the Company under the
indemnification letter agreement dated March 8, 1996 between the Company and the
Placement Agent.
8. Termination.
(a) The obligations of the Placement Agent under this Agreement may be
terminated at any time prior to the Closing Date, by notice to the Company from
the Placement Agent, without liability on the part of the Placement Agent to the
Company if, prior to delivery and payment for the Shares, in the sole judgment
of the Placement Agent (i) trading in the Common Stock of the Company shall have
been suspended by the Commission or by the NNM, (ii) trading in securities
generally on the New York Stock Exchange or the NNM shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
any of such exchanges, or additional material governmental restrictions, not in
force on the date of this Agreement, shall have been imposed upon trading in
securities generally by any of such exchanges or by order of the Commission or
any court or other governmental authority, (iii) a general banking moratorium
shall have been declared by Federal
-26-
or New York State authorities or (iv) any material adverse change in the
financial or securities markets in the United States or any outbreak or material
escalation of hostilities or declaration by the United States of a national
emergency or war or other calamity or crisis shall have occurred, the effect of
any of which is such as to make it, in the sole judgment of the Placement Agent,
impracticable or inadvisable to market the Shares on the terms and in the manner
contemplated by the Prospectus.
(b) The obligations of the parties under this Agreement shall be
automatically terminated in the event that the Requisite Funds have not been
deposited by the Investors into the Escrow Account by the close of business on
the date scheduled for the Closing.
9. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, Xxx
Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: President or (b) if to
the Placement Agent, at the office of Vector Securities International, Inc.,
0000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X.
Deutsch. Any such notice shall be effective only upon receipt. Any notice under
Section 7 may be made by facsimile or telephone, but if so made shall be
subsequently confirmed in writing.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
Placement Agent 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, the Placement Agent or any controlling person
referred to in Section 7 hereof and (ii) delivery of and payment for the Shares.
The respective agreements, covenants, indemnities and other statements set forth
in Sections 5 and 7 hereof shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement.
11. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the Placement Agent, the Company 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 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
indemnification and contribution contained in Sections 7(a) and (d) of this
Agreement shall also be for the benefit of the directors, officers, employees
and agents of the Placement Agent and any person or persons who control the
Placement Agent within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnification and contribution contained in Sections
7(b) and (d) 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
-27-
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No Investor shall be deemed a
successor because of such purchase.
12. Headings. Section headings in this Agreement are for convenience of
reference only, do not constitute a part of this Agreement, and shall not affect
its interpretation.
13. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Placement Agent.
14. Applicable Law. The validity and interpretations 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.
15. 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
-28-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the Placement Agent in
accordance with its terms.
Very truly yours,
INTEGRAMED AMERICA, INC.
By:___________________________________
Name:
Title:
The foregoing Placement Agency
Agreement is hereby confirmed
and accepted as of the date
first above written.
VECTOR SECURITIES INTERNATIONAL, INC.
By: _________________________________________
Name:
Title:
-29-
EXHIBIT 1
FORM OF ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of ______________, 1997, by and among INTEGRAMED
AMERICA, INC., a Delaware corporation (the "Company"), VECTOR SECURITIES
INTERNATIONAL, INC. (the "Placement Agent") and CITIBANK, N.A., a national
banking institution incorporated under the laws of the United States of America
(the "Escrow Agent").
WHEREAS, the Company proposes to sell an aggregate of __________ shares of
its common stock, par value $.01 per share (the "Shares"), for an aggregate of
$_________________, all as described in the Company's registration statement on
Form S-1 (Registration No. 333-_______)(which, together with all amendments or
supplements thereto is referred to herein as the "Registration Statement");
WHEREAS, the Shares are being offered by the Company to investors whom the
Placement Agent has introduced to the Company, pursuant to registration under
the Securities Act of 1933, as amended, and pursuant to registration or
exemptions from registration under state securities laws;
WHEREAS, the offering of the Shares will terminate on ______________, 1997
(the "Final Closing Date") and, if subscriptions for the total number of Shares
being offered pursuant to the Registration Statement have not been received by
the Company on or before the Final Closing Date, no Shares will be sold and all
payments made by subscribers will be refunded by the Escrow Agent with interest
earned thereon, if any; and
WHEREAS, with respect to all subscription payments received from
subscribers, the Company proposes to establish an escrow account with the Escrow
Agent at the office of its Escrow Administration, 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
NOW, THEREFORE, it is agreed as follows:
1. Establishment of Escrow. The Escrow Agent hereby agrees to receive and
disburse the proceeds from the offering of the Shares and any interest earned
thereon in accordance herewith.
2. Deposit of Escrowed Property. The Placement Agent, on behalf of the
subscribers for the Shares, shall from time to time, but in no event later than
12:00 noon on the date following receipt by the Placement Agent, cause to be
wired to or deposited with, or, cause the subscribers for the Shares to wire or
deposit with, the Escrow Agent funds or checks of
the subscribers delivered in payment for Shares (the "Escrowed Property"). Any
checks delivered to the Escrow Agent pursuant to the terms hereof shall be made
payable to or endorsed to the order of the Escrow Agent. The Escrow Agent upon
receipt of such checks shall present such checks for payment to the drawee-bank
under such checks. Any checks not honored by the drawee-bank thereunder after
the first presentment for payment shall be returned to the Placement Agent, on
behalf of such subscriber, in the same manner notices are delivered pursuant to
Section 6. Upon receipt of funds or checks from the Placement Agent, the Escrow
Agent shall credit such funds and the amount of such checks to a
non-interest-bearing account (the "Escrow Account") held by the Escrow Agent. If
following the credit of the amount of any check to the Escrow Account such check
is dishonored, the Escrow Agent, if such dishonored check amount shall have been
invested pursuant to Section 3, shall liquidate to the extent of such dishonored
check amount such investments and debit the Escrow Account for the amount of
such dishonored check plus, if any, the amount of interest and other income
earned with respect to any investment of such dishonored check amount.
3. Investment of Escrowed Property. The Escrow Agent on the second business
day ("business day" defined for purposes of this Escrow Agreement as any day
which is not a Saturday, a Sunday or a day on which banks or trust companies in
the City and State of New York are authorized or obligated by law, regulation or
executive order to remain closed) succeeding (unless such deposit is made in
federal or other immediately available or "same day" funds, in which case, on
the business day next succeeding) the credit of any subscription proceeds to the
Escrow Account pursuant to Section 2 and until release of such proceeds in
accordance with the terms hereof, shall deposit such proceeds in a Citibank
Money Market Deposit Account, pursuant to Rule 15c2-4 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended, in accordance with the terms set forth on Exhibit A hereto (made a part
of this Escrow Agreement as if herein set forth). The Escrow Agent shall in no
event be liable for any loss resulting from any change in interest rates
applicable to proceeds invested pursuant to this Section. Interest on proceeds
invested pursuant to this Section shall accrue from the date of investment of
such proceeds until the termination of such investment pursuant to the terms
hereof and shall be paid as set forth in Section 5.
4. List of Subscribers. The Placement Agent shall furnish or cause to be
furnished to the Escrow Agent, at the time of each deposit of funds or checks
pursuant to Section 2, a list, substantially in the form of Exhibit B hereto,
containing the name of, the address of, the number of Shares subscribed for by,
the subscription amount delivered to the Escrow Agent on behalf of, and the
social security or taxpayer identification number, if applicable, of, each
subscriber whose funds are being deposited, and to which is attached a completed
W-9 form (or, in the case of any subscriber who is not a United States citizen
or resident, a W-8 form) for each listed subscriber. The Escrow Agent shall
notify the Placement Agent and the Company of any discrepancy between the
subscription amounts set forth on any list delivered pursuant to this Section 4
and the subscription amounts received by the Escrow Agent. The Escrow Agent is
authorized to revise such list to reflect the actual subscription amounts
received and the release of any subscription amounts pursuant to Section 5.
-2-
5. Withdrawal of Subscription Amounts. (a) If the Escrow Agent shall
receive a notice, substantially in the form of Exhibit C hereto (an "Offering
Termination Notice"), from the Company, the Escrow Agent shall (i) promptly
after receipt of such Offering Termination Notice and the clearance of all
checks received by the Escrow Agent as Escrowed Property, liquidate any
investments that shall have been made pursuant to Section 3 and send to each
subscriber listed on the list held by the Escrow Agent pursuant to Section 4
whose total subscription amount shall not have been released pursuant to
paragraph (b) or (c) of this Section 5, in the manner set forth in paragraph (d)
of this Section 5, a check to the order of such subscriber in the amount of the
remaining subscription amount held by the Escrow Agent as set forth on such list
held by the Escrow Agent, and (ii) promptly after the fourth business day of the
month immediately following the month in which the investments made pursuant to
Section 3 were terminated pursuant to this paragraph, send, in the manner set
forth in paragraph (e) of this Section 5, a check to the order of each such
subscriber in the amount of interest and other income earned and not yet paid
with respect to any investment of such subscriber's funds. The Escrow Agent
shall notify the Company and the Placement Agent of the distribution of such
funds to the subscribers.
(b) In the event that (i) the Shares have been subscribed for and
funds in respect thereof shall have been deposited with the Escrow Agent on or
before the Final Closing Date and (ii) no Offering Termination Notice shall have
been delivered to the Escrow Agent, the Company and the Placement Agent, shall
deliver to the Escrow Agent a joint notice, substantially in the form of Exhibit
D hereto (a "Closing Notice"), designating the date on which Shares are to be
sold and delivered to the subscribers thereof (the "Closing Date"), which date
shall not be earlier than the clearance of any checks received by the Escrow
Agent as Escrowed Property, the proceeds of which are to be distributed on such
Closing Date, and identifying the subscribers and the number of Shares to be
sold to each thereof on such Closing Date, not less than two (2) nor more than
seven (7) business days prior to such Closing Date. The Escrow Agent, after
receipt of such Closing Notice and the clearance of such checks:
(i) on or prior to the Closing Date identified in such Closing
Notice, shall liquidate any investments that shall have been made
pursuant to Section 3 to the extent of the subscription amount to be
distributed pursuant to the immediately succeeding clause (ii);
(ii) on such Closing Date, pay to the Company and the Placement
Agent, in federal or other immediately available funds and otherwise
in the manner specified by the Company in such Closing Notice, an
amount equal to the aggregate of the subscription amounts paid by the
subscribers identified in such Closing Notice for the Shares to be
sold on such Closing Date as set forth on the list held by the Escrow
Agent pursuant to Section 4; and
(iii) promptly after the fourth business day of the month
immediately following the month in which the investments made pursuant
to Section 3 were terminated pursuant to such Closing Notice, shall
send, in the manner set forth in paragraph (e) of this Section 5, a
check to the order of each subscriber identified in such Closing
Notice in the amount of interest and other income earned and not yet
paid with respect to any investment
-3-
of each such subscriber's funds distributed on such Closing Date. At
the time of such transfer, the Escrow Agent shall identify in writing
to the Company and the Placement Agent the amount of the interest
earned for the account of each subscriber and the date such
subscription was received.
(c) If at any time and from time to time prior to the release of any
subscriber's total subscription amount pursuant to paragraph (a) or (b) of this
Section 5 from escrow, the Company shall deliver to the Escrow Agent a notice,
substantially in the form of Exhibit E hereto (a "Subscription Termination
Notice"), to the effect that any or all of the subscriptions of such subscriber
have been rejected by the Company (a "Rejected Subscription"), the Escrow Agent
(i) promptly after receipt of such Subscription Termination Notice and, if such
subscriber delivered a check in payment of its Rejected Subscription, after the
clearance of such check, shall liquidate, to the extent of the sum of such
subscriber's Rejected Subscription amount as set forth in the Subscription
Termination Notice, any investments that shall have been made pursuant to
Section 3 and send to such subscriber, in the manner set forth in paragraph (e)
of this Section 5, a check to the order of such subscriber in the amount of such
Rejected Subscription amount, and (ii) promptly after the fourth business day of
the month immediately following the month in which the investments made pursuant
to Section 3 were terminated pursuant to this paragraph, shall send to such
subscriber, in the manner set forth in paragraph (e) of this Section 5, a check
to the order of such subscriber in the amount of interest and other income
earned and not yet paid with respect to any investment of such subscriber's
Rejected Subscription amount. At the time of such transfer, the Escrow Agent
shall identify in writing to the Company and the Placement Agent the amount of
the interest earned for the account of each subscriber and the date such
subscription was received.
(d) On a date following the transfer of any interest earned for the
account of each subscriber pursuant to Section 5(a), (b) or (c), but not later
than January 31, 1998, the Escrow Agent shall provide each subscriber with tax
form 1099 setting forth the amount of such interest.
(e) For the purposes of this Section 5, any check that the Escrow
Agent shall be required to send to any subscriber shall be sent to such
subscriber by first class mail, postage prepaid, at such subscriber's address
furnished to the Escrow Agent pursuant to Section 4.
6. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be (a) delivered by hand or (b)
sent by mail, registered or certified, with proper postage prepaid, and
addressed as follows:
if to the Company, to:
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
-4-
with a copy to:
Bachner, Tally, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
if to the Placement Agent, to:
Vector Securities International, Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Deutsch
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
if to the Escrow Agent, to:
Citibank, N.A.
Corporate Trust
Escrow Administration
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in the above-referenced manner. All such
notices and communications, if mailed, shall be effective when deposited in the
mails, except that notices and communications to the Escrow Agent and notices of
changes of address shall not be effective until received.
7. Concerning the Escrow Agent. To induce the Escrow Agent to act
hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed
Property held by it hereunder any greater degree of care than it gives its own
similar property and shall not be required to invest any funds held hereunder
except as directed in this Escrow Agreement. Uninvested funds held hereunder
shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the
-5-
Escrow Agent with respect to any and all matters pertinent hereto. No implied
duties or obligations shall be read into this Escrow Agreement against the
Escrow Agent. The Escrow Agent shall not be bound by the provisions of any
agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct, and, except with respect to claims based upon
such gross negligence or willful misconduct that are successfully asserted
against the Escrow Agent, and the other parties hereto shall jointly and
severally indemnify and hold harmless the Escrow Agent (and any successor Escrow
Agent) from and against any and all losses, liabilities, claims, actions,
damages and expenses, including reasonable attorneys' fees and disbursements,
arising out of and in connection with this Escrow Agreement. Without limiting
the foregoing, the Escrow Agent shall in no event be liable in connection with
its investment or reinvestment of any cash held by it hereunder in good faith,
in accordance with the terms hereof, including without limitation any liability
for any delays (not resulting from gross negligence or willful misconduct) in
the investment or reinvestment of the Escrowed Property, or any loss of interest
incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other writing delivered
to it hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. The Escrow Agent may act in reliance upon any instrument or
signature believed by it in good faith to be genuine and may assume, if in good
faith, that any person purporting to give notice or receipt or advice or make
any statement or execute any document in connection with the provisions hereof
has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with
respect to any matter relating to this Escrow Agreement and shall not be liable
for any action taken or omitted in good faith and in accordance with such
advice.
(f) The Escrow Agent does not have any interest in the Escrowed
Property deposited hereunder but is serving as escrow holder only. Any payments
of income from the Escrow Account shall be subject to withholding regulations
then in force with respect to United States taxes. The parties hereto will
provide the Escrow Agent with appropriate W-9 forms for tax I.D., number
certification, or non-resident alien certifications.
This paragraph (f) and paragraph (c) of this Section 7 shall survive
notwithstanding any termination of this Escrow Agreement or the resignation of
the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity,
value, genuineness or the collectibility of any security or other document or
instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as
to the wisdom of selling or retaining or taking or refraining from any action
with respect to any
-6-
securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may
be discharged from its duties and obligations hereunder by the delivery to it of
notice of termination signed by both the Company and the Placement Agent or at
any time may resign by giving written notice to such effect to the Company and
the Placement Agent. Upon any such termination or resignation, the Escrow Agent
shall deliver the Escrowed Property to any successor escrow agent jointly
designated by the other parties hereto in writing, or to any court of competent
jurisdiction if no such successor escrow agent is agreed upon, whereupon the
Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Escrow Agreement. The termination or resignation
of the Escrow Agent shall take effect on the earlier of (i) the appointment of a
successor (including a court of competent jurisdiction) or (ii) the day that is
30 days after the date of delivery: (A) to the Escrow Agent of the other
parties' notice of termination or (B) to the other parties hereto of the Escrow
Agent's written notice of resignation. If at that time the Escrow Agent has not
received a designation of a successor escrow agent, the Escrow Agent's sole
responsibility after that time shall be to keep the Escrowed Property safe until
receipt of a designation of successor escrow agent or a joint written
disposition instruction by the other parties hereto or any enforceable order of
a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of
any writing of any third party contemplated herein as a means to resolve
disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other
parties hereto and/or the subscribers of the Shares resulting in adverse claims
or demands being made in connection with the Escrowed Property, or in the event
that the Escrow Agent in good faith is in doubt as to what action it should take
hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property
until the Escrow Agent shall have received (i) a final and non-appealable order
of a court of competent jurisdiction directing delivery of the Escrowed Property
or (ii) a written agreement executed by the other parties hereto and consented
to by the subscribers directing delivery of the Escrowed Property, in which
event the Escrow Agent shall disburse the Escrowed Property in accordance with
such order or agreement. Any court order referred to in (i) above shall be
accompanied by a legal opinion by counsel for the presenting party satisfactory
to the Escrow Agent to the effect that said court order is final and
non-appealable. The Escrow Agent shall act on such court order and legal opinion
without further question.
(l) As consideration for its agreement to act as Escrow Agent as
herein described, the Company agrees to pay the Escrow Agent the fee set forth
on Exhibit F hereto (made a part of this Escrow Agreement as if herein set
forth). In addition, the Company agrees to reimburse the Escrow Agent for all
reasonable expenses, disbursements and advances incurred or made by the Escrow
Agent in performance of its duties hereunder (including reasonable fees,
expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of
any New
-7-
York State or federal court sitting in New York City in any action or proceeding
arising out of or relating to this Escrow Agreement, (ii) agree that all claims
with respect to such action or proceeding shall be heard and determined in such
New York State or federal court and (iii) waive, to the fullest extent possible,
the defense of an inconvenient forum. The other parties hereby consent to and
grant any such court jurisdiction over the persons of such parties and over the
subject matter of any such dispute and agree that delivery or mailing of process
or other papers in connection with any such action or proceeding in the manner
provided hereinabove, or in such other manner as may be permitted by law, shall
be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without
limitation, the Registration Statement, the Prospectus, notices, reports and
promotional material) which mentions the Escrow Agent's name or the rights,
powers, or duties of the Escrow Agent shall be issued by the other parties
hereto or on such parties' behalf unless the Escrow Agent shall first have given
its specific written consent thereto. The Escrow Agent hereby consents to the
use of its name and the reference to the escrow arrangement in the Registration
Statement and in the Prospectus.
8. Miscellaneous.
(a) This Escrow Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their respective successors and assigns,
heirs, administrators and representatives, and the subscribers of the Shares and
shall not be enforceable by or inure to the benefit of any other third party
except as provided in paragraph (i) of Section 7 with respect to the termination
of, or resignation by, the Escrow Agent. No party may assign any of its rights
or obligations under this Escrow Agreement without the written consent of the
other parties.
(b) This Escrow Agreement shall be construed in accordance with and
governed by the internal law of the State of New York (without reference to its
rules as to conflicts of law).
(c) This Escrow Agreement may only be modified by a writing signed by
all of the parties hereto and consented to by the subscribers of the Shares
adversely affected by such modifications. No waiver hereunder shall be effective
unless in a writing signed by the party to be charged.
(d) This Escrow Agreement shall terminate upon the payment pursuant to
Section 5 of all amounts held in the Escrow Account.
(e) The section headings herein are for convenience only and shall not
affect the construction thereof. Unless otherwise indicated, references to
Sections are to Sections contained herein.
(f) This Escrow Agreement may be executed in one or more counterparts
but all such separate counterparts shall constitute but one and the same
instrument; provided that,
-8-
although executed in counterparts, the executed signature pages of each such
counterpart may be affixed to a single copy of this Agreement which shall
constitute an original.
-9-
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be executed as of the day and year first above written.
INTEGRAMED AMERICA, INC.
By:__________________________________
Name:
Title:
VECTOR SECURITIES INTERNATIONAL, INC.
By:__________________________________
Name:
Title:
CITIBANK, N.A.
By:___________________________________
Name:
Title:
-10-
EXHIBIT A
Citibank Insured Money Market Deposit Accounts
Deposits/Withdrawals may be made to the Citibank Money Market Deposit
Account ("MMDA") established under the Escrow Agreement to which this Exhibit is
attached only through the Escrow Account. All transaction and balance reporting
of the MMDA will be included as part of the Escrow Account Statement. Activity
in the MMDA will be reflected as the equivalent of dollars on deposit in a
Citibank Money Market Deposit Account. Deposits/Withdrawals to the MMDA will be
made only as permitted by the Escrow Agreement to which this Exhibit is
attached. The MMDA has certain regulatory restrictions as well as some minimum
requirements:
1. By regulation, Citibank, N.A. is required to reserve the right to
require seven days' prior notice of any withdrawals of funds from an account;
provided, however, that, if Citibank, N.A. elects to exercise its right to
require seven days' prior notice, it shall exercise such right as to all such
accounts established.
2. A daily balance of $10,000 must be maintained on deposit in the MMDA. If
the MMDA should fall below $10,000 on any day, Citibank, N.A. will be authorized
to transfer the remaining balance to the Escrow Account.
3. Rates will be determined by Citibank, N.A. and can be determined by
calling your custody account officer.
4. Balances up to $100,000 (total on deposit at Citibank, N.A.) are
FDIC-insured.
A-1
EXHIBIT B
SUMMARY OF CASH RECEIVED
NEW PARTICIPANT DEPOSIT
Date:_________
Deposit Date: List Number:_________
Investment Date: Page_______ of _____
Batch Number: Approved By:_________
JOB#:_________
For Bank use only
TITLE:
-------------------
-----------------------------------------------------------------------------------------------------------
* *AMOUNT OF * *TAX ID NO./ | | FOR BANK
NAME * DEPOSIT * SHARES * ADDRESS |SOC.SEC. NO. * * USE ONLY * * * *
---------------- -------- --------- ---------------------------- -------------
* * TAX CODE *
* * * * * * EXEMPT(Y/N)
* * * * * * W-9(YR) NRA
* * * * * * W-8(YR)
* * * * * * 1008(87)
* * * * * *
-----------------------------------------------------------------------------------------------------------------------------------
Broker Misc. * * * * Misc. II * Misc. III | TAX CODE
* * * * * * EXEMPT(Y/N)
* * * * * * W-2(YR) NRS
* * * * * * W-8(YR)
* * * * * * 1008(87)
* * * * * *
-----------------------------------------------------------------------------------------------------------------------------------
Broker Misc. * * * * Misc. II * Misc. III | TAX CODE
* * * * * * EXEMPT(Y/N)
* * * * * * W-2(YR) NRS
* * * * * * W-8(YR)
* * * * * * 1008(87)
* * * * * *
-----------------------------------------------------------------------------------------------------------------------------------
Broker Misc. * * * * Misc. II * Misc. III | TAX CODE
* * * * * * EXEMPT(Y/N)
* * * * * * W-2(YR) NRS
* * * * * * W-8(YR)
* * * * * * 1000(87)
* * * * * *
-----------------------------------------------------------------------------------------------------------------------------------
Broker Misc. * * * * Misc. II * Misc. III |*
B-1
EXHIBIT C
[Form of Offering Termination Notice]
________________, 1997
Citibank, N.A.
Corporate Trust
Escrow Administration
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
Senior Trust Officer
Dear Xx. Xxxxxxxxxx:
Pursuant to Section 5(a) of the Escrow Agreement dated as of
_______________, 1997 (the "Escrow Agreement") among IntegraMed America, Inc.,
(the "Company"), Vector Securities International, Inc. and you, the Company
hereby notifies you of the termination of the offering of the Shares (as that
term is defined in the Escrow Agreement) and directs you to make payments to
subscribers as provided for in Section 5(a) of the Escrow Agreement.
Very truly yours,
INTEGRAMED AMERICA, INC.
By: _______________________________
Name:
Title:
C-1
EXHIBIT D
[Form of Closing Notice]
_______________, 1997
Citibank, N.A.
Corporate Trust
Escrow Administration
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
Senior Trust Officer
Ladies and Gentlemen:
Pursuant to Section 5(b) of the Escrow Agreement dated as of
______________, 1997, (the "Escrow Agreement") among IntegraMed America, Inc.
(the "Company"), Vector Securities International, Inc. and you, the Company
hereby certifies that it has received subscriptions for the Shares (as that term
is defined in the Escrow Agreement) and the Company will sell and deliver Shares
to the subscribers thereof at a closing to be held on _______________, 1997 (the
"Closing Date"). The names of the subscribers concerned, the number of Shares
subscribed for by each of such subscribers and the related subscription amounts
are set forth on Schedule I annexed hereto.
Please accept these instructions as standing instructions for the closing
to be held on the Closing Date. The parties hereto certify that they do not wish
to have a call back regarding these instructions.
We hereby request that the aggregate subscription amount be paid to you,
the Placement Agent and us as follows:
1. To the Company, $_________;
2. To Vector Securities International, Inc., $_________; and
3. To the Escrow Agent, $_________.
D-1
These instructions may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Very truly yours,
INTEGRAMED AMERICA, INC.
By: _____________________________
Name:
Title:
VECTOR SECURITIES INTERNATIONAL, INC.
By: ______________________________
Name:
Title:
D-2
SCHEDULE I
Name of Number of Subscription
Subscriber Shares Amount
---------- ------ ------
D-3
EXHIBIT E
[Form of Subscription Termination Notice]
Citibank, N.A.
Corporate Trust
Escrow Administration
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
Senior Trust Officer
Dear Xx. Xxxxxxxxxx:
Pursuant to Section 5(c) of the Escrow Agreement dated as of
______________, 1997 (the "Escrow Agreement") among IntegraMed America, Inc.
(the "Company"), Vector Securities International, Inc. and you, the Company
hereby notifies you that the following subscription(s) have been rejected:
Dollar
Name of Amount of Subscribed Amount of
Subscriber Shares Rejected Rejected Subscription
---------- --------------- ---------------------
Very truly yours,
INTEGRAMED AMERICA, INC.
By: ____________________________
Name:
Title:
E-1
EXHIBIT F
Fee to Citibank N.A.: $5,000.00
F-1
EXHIBIT 2
Vector Securities International, Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned has been informed that IntegraMed America, Inc., a Delaware
corporation (the "Company"), intends to file a Registration Statement on Form
S-1 (the "Registration Statement") under the Securities Act of 1933, as amended,
with the Securities and Exchange Commission, which Registration Statement
contemplates the public offering of shares of the Company's Common Stock through
you as the Placement Agent.
In connection with the foregoing, in order to induce you, as Placement
Agent, to enter into an Agreement with the Company and to proceed with the
proposed public offering, the undersigned agrees to the following:
For a period of thirteen (90) days following the effective date of the
Company's public offering of securities, the undersigned will not offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any options, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into
or execrable or exchangeable for Common Stock (whether such shares or any
such securities are now owned by the undersigned or are hereafter
acquired), without the prior written consent of Vector Securities
International, Inc. In order to enforce this covenant, the Company may
impose stop-transfer instructions with respect to all of the undersigned's
shares of Common Stock until the end of such period.
If the Company's public offering has not been completed by 5:00 p.m., New
York City time, on October 31, 1997, this agreement shall then terminate and be
of no further force and effect.
_________________________________
Signature
_________________________________
Print Name
_________________________________
Date
